- Cummins’s Background
- The EARS Evaluations of Cummins’s Office
- Cummins’s Status on the Removal Lists
- Reasons Proffered for Cummins’s Removal
- Chronology of Events Related to Cummins’s Removal
- Cummins’s Performance
- Sampson’s Statements
- Department Managers’ Statements
- Cummins’s Removal and Griffin’s Appointment
- Griffin’s Background
- Griffin Learns Cummins’s Name is on the Removal List
- Griffin Expresses Interest in the U.S. Attorney Position
- January 2006 Removal List Identifies Griffin as Cummins’s Replacement
- Griffin’s Nomination Process
- Allegation that the Department Intended to Bypass the Senate Confirmation Process
- The Pre-Nomination Process
- Indefinite Interim Appointment Proposed for Griffin
- Griffin Returns to Arkansas as a Special Assistant U.S. Attorney
- Attorney General Gonzales Appoints Griffin Interim U.S. Attorney
- Public Concerns About Griffin’s Appointment
- The Attorney General’s and the Deputy Attorney General’s Testimony
- The Department’s Written Response to Congressional Concerns About Griffin’s Appointment
- Griffin Withdraws
- Taylor’s Comment Concerning Cummins
- Cummins’s Removal
- Misleading Statements about Cummins’s Removal
- Interim Appointment of Griffin
This chapter examines the removal of H.E. “Bud” Cummins III, the former United States Attorney for the Eastern District of Arkansas, and his replacement by Timothy Griffin in December 2006.78 We also discuss the Department’s response to congressional concerns about Griffin’s appointment, including the representations made about the reasons for Cummins’s removal, and whether the Department intended to bypass the normal Senate confirmation process by appointing Griffin as the Interim U.S. Attorney after Cummins’s removal.
Cummins graduated from the University of Arkansas Law School in Little Rock in 1989. He served as a law clerk in the Eastern District of Arkansas, first for U.S. Magistrate Judge John Forster, Jr. from 1989 to 1991, and then for U.S. District Judge Stephen M. Reasoner in 1991. Following his clerkships, Cummins started a private law practice in Little Rock in 1992, where he remained until 1995. He unsuccessfully ran for an Arkansas seat in the U.S. House of Representatives during 1995 and 1996. Between 1997 and 1998, Cummins was the Chief Legal Counsel to Arkansas Governor Mike Huckabee. In 1998, he returned to the private sector to resume a private law and lobbying practice. In 2000, Cummins served as a counsel to the Bush-Cheney campaign.
Cummins said that early in the 2000 Bush campaign he worked closely with Arkansas Senator Tim Hutchinson and made it known that if Governor Bush won the election he would seek Hutchinson’s support for the U.S. Attorney nomination for the Eastern District of Arkansas. In early 2001, Hutchinson forwarded Cummins’s name to the White House recommending him for that position.
On November 30, 2001, Cummins was nominated by the President to be the U.S. Attorney for the Eastern District of Arkansas. He was confirmed by the Senate and took office on December 20, 2001.
In 2002 and 2006, EARS teams conducted evaluations of Cummins’s office. Both evaluations described Cummins as highly regarded by the judiciary, law enforcement, civil client agencies, and office personnel. The 2006 evaluation reported that the senior management team, led by Cummins, “effectively managed the office’s operations and personnel.” The report also stated that the office had “established strategic goals that were appropriate to meet the priorities of the Department and the needs of the District.” The evaluators found that Cummins was involved in the day-to-day management of the office and was active in Department of Justice matters, serving on various Attorney General Advisory Committee subcommittees. Cummins also received high marks in the EARS evaluation for the office’s anti-terrorism, anti-drug, and reduction of gun violence programs.
Cummins was 1 of 14 U.S. Attorneys whom Sampson identified for removal on the first list he supplied to the White House on March 2, 2005. As noted in Chapter Three, that list characterized those identified for removal as “weak U.S. Attorneys who have been ineffectual managers and prosecutors, chafed against Administration initiatives, etc.” Cummins’s name remained on every removal list until his resignation in December 2006.
We found that Department officials proffered conflicting reasons for Cummins’s removal.
Sampson told congressional investigators and us that Cummins’s name appeared on the March 2005 list because he believed that Cummins was an underperforming U.S. Attorney.
However, in McNulty’s February 6, 2007, testimony before the Senate Judiciary Committee, McNulty stated that Cummins was not removed for performance reasons but was removed because the White House wanted to give Griffin a chance to serve as U.S. Attorney. The chart that Goodling prepared for McNulty’s closed Senate briefing stated that because Cummins had completed his 4-year term as U.S. Attorney and had indicated he would not serve out his entire second 4-year term, the Department worked on developing a replacement plan. In McNulty’s closed briefing to members of the Senate Judiciary Committee on February 14, 2007, he stated that Cummins had said publicly that he was thinking of moving on, and McNulty added that it seemed appropriate to give Griffin a chance to serve as U.S. Attorney.
In March 2007, however, in response to congressional document requests concerning the U.S. Attorney removals, the Department publicly released e-mail between Sampson and White House Political Affairs Director Sara Taylor in which Taylor wrote that Cummins was removed because he was “lazy.”
When Cummins announced his resignation in December 2006, Arkansas Senators Mark Pryor and Blanche Lincoln publicly expressed concern that Cummins was improperly removed to make way for Griffin and that the Administration intended Griffin’s appointment to bypass the Senate confirmation process. In the remainder of this chapter, we discuss Cummins’s performance, the reasons for his removal, and Griffin’s appointment. We then address whether the appointment of Griffin as Interim U.S. Attorney was intended to bypass the normal Senate confirmation process.
Sampson told us that he could not recall whether he learned anything specific about Cummins’s performance as U.S. Attorney between 2001 and 2005 that caused him to indicate that Cummins was a “weak U.S. Attorney” on the March 2, 2005, list of U.S. Attorneys Sampson sent to White House Counsel Miers.
Sampson told us that he did not perceive Cummins in a positive light even at the time of Cummins’s nomination as U.S. Attorney. Before coming to the Department, Sampson had served in the White House Office of Presidential Personnel and in the White House Counsel’s Office. Sampson said that he had reviewed Cummins’s résumé in 2001 when Cummins was going through the nomination process. He thought Cummins was not particularly distinguished and was unsuitable for nomination as U.S. Attorney. Sampson also stated that because presidential nominations are subject to the political process and home-state politicians exercised a lot of power over nominations, the strongest candidate was not always selected.
Sampson acknowledged that the information he gained from Cummins’s nomination process colored his view of Cummins even after he became the U.S. Attorney. Sampson said he perceived Cummins to be mediocre and said he did not think he was alone in that perception, commenting that he thought Department leadership also perceived Cummins to be mediocre. However, as described below, we were unable to find any evidence that Sampson discussed Cummins’s performance with any Department officials prior to identifying him for potential removal in March 2005.
None of the Department leaders we interviewed said they recalled discussing Cummins’s performance with Sampson. Former Deputy Attorney General Comey told us that he did not think Cummins ever “crossed his radar screen” while he was Deputy Attorney General. Associate Deputy Attorney General David Margolis said that he did not believe he had any contact with Cummins after he interviewed Cummins prior to his nomination. Margolis stated that during the subsequent 4 years he had never heard anything bad about Cummins, either directly or indirectly.
Paul McNulty, who succeeded Comey as Deputy Attorney General in November 2005, told us that he did not know Cummins very well and did not have an opinion about his performance. McNulty also stated during his Senate Judiciary Committee hearing that nothing stood out in his mind concerning any issues with Cummins’s performance as U.S. Attorney. McNulty also testified that he did not consider Cummins to be in the same category as the other U.S. Attorneys removed in December 2006 in that the others were removed for performance-related reasons while Cummins was told to resign so that another candidate, Tim Griffin, could serve as the U.S. Attorney. McNulty’s Chief of Staff Michael Elston also told us he was unaware of any concerns about Cummins’s performance as U.S. Attorney.
Former EOUSA Director Mary Beth Buchanan, who also served as the Chair of the Attorney General’s Advisory Committee from 2003 to 2004, told us that she could not assess Cummins’s performance because Cummins had a low profile. She said she did not have any negative information about Cummins, but also did not know of anything exceptional about Cummins’s work in his district either. Buchanan said, however, that it was difficult for certain U.S. Attorneys to stand out when their districts did not have the same type of crime as larger districts.
EOUSA Director Michael Battle, who became Director of EOUSA in June 2005, told us that he was not aware of any problems or dissatisfaction within the Department concerning Cummins’s performance. Rather, Battle stated that he and EOUSA Acting Deputy Director Natalie Voris considered Cummins to be one of the top five U.S. Attorneys. Battle said that Cummins was one of the easiest U.S. Attorneys to work with, and Voris told us that Cummins was “a charismatic guy who cared about his district.”
Attorney General Gonzales told us that he visited Cummins’s district in the fall of 2005 and thought Cummins was “a nice guy.” Gonzales said he could not recall being aware of any concerns about Cummins.
J. Timothy “Tim” Griffin graduated from Tulane University Law School in 1994 and began his legal career at a private law firm in New Orleans. Between 1995 and 2000, he worked at a series of legal jobs in Arkansas and in Washington, D.C. Griffin was a local prosecutor in Pine Bluff, Arkansas; an Associate Independent Counsel in the investigation of former Housing and Urban Development Secretary Henry Cisneros; and a Senior Investigative Counsel on the Campaign Finance Investigation run by the House Committee on Government Reform. Griffin also joined the U.S. Army Reserve Judge Advocate General Corps in 1996 as a First Lieutenant and was subsequently promoted to the rank of Major. In 1999, Griffin became Deputy Research Director at the Republican National Committee (RNC) for the 2000 presidential campaign.
Griffin told us that in 2001 he had expressed interest in becoming U.S. Attorney in the Western District of Arkansas, but Senator Hutchinson decided to recommend Thomas Gean for that position.
In March 2001, Griffin obtained a political appointment as a Special Assistant to the Assistant Attorney General for the Criminal Division. Griffin was detailed from the Department of Justice Criminal Division to the U.S. Attorney’s Office in the Eastern District of Arkansas as a Special Assistant United States Attorney (SAUSA) from September 2001 to June 2002. Griffin was a SAUSA in the Eastern District when Cummins became the U.S. Attorney there in December 2001. After finishing his SAUSA detail in June 2002, Griffin returned to the Republican National Committee as Research Director and Deputy Communications Director.
In early 2004 while working at the Republican National Committee, Griffin again sought the nomination for U.S. Attorney in the Western District of Arkansas.79 Griffin said that Congressman John Boozman, who was the senior Republican in Arkansas’s congressional delegation, submitted Griffin’s name to the White House along with three other candidates for this position.
In February 2004, a panel of Department of Justice and White House officials, including Sampson, Margolis, White House Liaison David Higbee, and Associate White House Counsel Grant Dixton interviewed Griffin. Sampson told us that Griffin was the panel’s first choice, but Griffin withdrew from consideration and the panel chose Robert Balfe.80 Griffin told us that he withdrew his name from consideration after his interview because he knew that Karl Rove and other Republican Party officials wanted him to continue to work on the 2004 presidential campaign. Griffin said he also agreed to withdraw because he knew his nomination was unlikely to move forward since it was an election year.81
According to both Cummins and Griffin, the two were on friendly terms after Griffin completed his detail in the Eastern District of Arkansas U.S. Attorney’s Office in 2002. Cummins told us that as a SAUSA Griffin had done a good job as the office’s Project Safe Neighborhoods coordinator. In August 2002, shortly after Griffin left the U.S. Attorney’s Office, Cummins wrote Griffin a laudatory letter thanking him for his service. Cummins said that after Griffin left the office, he was very good about staying in touch, and a review of Cummins’s e-mail traffic shows numerous friendly e-mails between Griffin and Cummins throughout 2004 into 2005.
Cummins told us that by December 2004 he had begun to consider the possibility of resigning as U.S. Attorney if the right opportunity presented itself, but he had no firm plans to leave at that time and he was not actively seeking other employment. On December 30, 2004, the Arkansas Times, a weekly free paper self-described as “Arkansas’s Newspaper of Politics and Culture,” carried a small item in its “Insider” section noting that Cummins had told a reporter that with four children to put through college, it would not be shocking for him to leave before the end of President Bush’s second term.
In December 2004, Griffin left the Republican National Committee and in January 2005 began work under a 3-month consulting contract. Griffin said he spent the 3 months planning his upcoming April 2005 wedding and trying to figure out what his next job would be. Griffin said that although he really wanted to work at the White House, he also explored the possibility of obtaining a political appointment to the Department of Justice in which he would then be detailed to lead a Project Safe Neighborhoods initiative in southwestern Arkansas, under the jurisdiction of the U.S. Attorney’s Office for the Western District of Arkansas and recently confirmed U.S. Attorney Balfe. Such an arrangement would have permitted Griffin to be a Department employee and to remain in Arkansas.
In February 2005, Sara Taylor became the Director of Political Affairs at the White House, reporting directly to Karl Rove. Taylor began looking for someone to become her deputy, and Taylor and Griffin knew each other from the presidential campaign. According to Griffin, in March 2005 he began discussing with Taylor the possibility of becoming Deputy Director of Political Affairs at the White House.
On March 2, 2005, Sampson provided to White House Counsel Harriet Miers his first list of U.S. Attorneys to be removed. Sampson described 14 U.S. Attorneys on the list as “weak, ineffectual” or as having “chafed against administration initiatives.” Cummins was 1 of the 14.
Taylor told us that shortly after she began serving as White House Director of Political Affairs, she became aware that the White House was considering replacing U.S. Attorneys. Taylor said that Miers and others in both the White House Counsel’s Office and the Department of Justice had discussed the idea that the beginning of the President’s second term provided an opportunity to replace some of the U.S. Attorneys.
Griffin told us that in mid-March 2005 he learned from Taylor that Cummins was on a list of U.S. Attorneys the White House was considering replacing. Griffin said that even prior to formally being hired by the White House as Deputy Political Director and placed on the White House payroll, he attended the “Directors” meetings at the White House. After one of these meetings, Taylor showed him a list of U.S. Attorneys who were going to be asked to resign.82 According to Griffin, Cummins’s name was on the list. Griffin stated that Taylor told him she did not know why Cummins was on the list, but Griffin said he speculated to Taylor that it was because Cummins had lost his sponsor when Senator Tim Hutchinson lost his re-election bid in 2002.
Griffin said that in addition to the possibility of becoming White House Deputy Director of Political Affairs, he was also interested in becoming an Associate White House Counsel. Griffin told us that he met with Miers sometime in March 2005 to discuss working in the White House Counsel’s Office. However, according to Griffin, he did not think he had the credentials to be considered for an Associate White House Counsel position.
Griffin said that he also knew before he met with Miers that the White House wanted to replace Cummins. In the course of their conversation, Miers asked him what he wanted to do with his career, and she told him that the position of U.S. Attorney for the Eastern District of Arkansas might become vacant. She asked him if that was something he would be interested in. Griffin told Miers that his goal at the time was to work in the White House, but he also said that he wanted to be U.S. Attorney in the future. Griffin said that Miers expressed the concern to him that he might have difficulty becoming a U.S. Attorney after having worked for the White House Office of Political Affairs.
A review of the limited e-mail traffic that the White House provided to us during this investigation shows that Miers, Rove, and Taylor discussed employment options for Griffin in late March 2005. In an e-mail exchange dated March 22, 2005, Miers informed Rove that among the options she had discussed with the White House Presidential Personnel Office was to place Griffin in a political slot in one of the two Arkansas U.S. Attorney’s Offices, or to have Griffin replace the Deputy Director of the Office of Legal Policy at the Department of Justice. Rove responded, “What about him for the U.S. Attorney for the Eastern District of Arkansas?” Miers replied to Rove that it was “definitely a possibility” because the U.S. Attorney there was going to be replaced. In the March 2005 e-mail, Miers also wrote that she and Griffin had discussed Griffin’s desire to someday become U.S. Attorney, but Griffin told her he wanted to work at the White House in the immediate future. Miers wrote that Griffin told her that he knew the U.S. Attorney position required Senate confirmation and could take time, and Griffin was seeking more immediate employment because he was going to be married soon.
Rove forwarded his e-mail exchange with Miers to Taylor. Taylor responded, “My fear is they end up putting him [Griffin] at Justice (which he does not want to do); it’s a year before he’s made U.S. Attorney, if ever.” In another e-mail dated March 24, 2005, Taylor wrote to Rove that Griffin “would love to be U.S. Attorney – he’d love to come here in the meantime.”
At the end of March 2005, Griffin decided to accept the offer to become Deputy Director of Political Affairs at the White House.83 Griffin said that Taylor made it clear to him when he took the job that he had to commit to staying at the White House until after the November 2006 election unless the Arkansas U.S. Attorney position opened up before then. Griffin began working at the White House on April 14, 2005.
Cummins said that throughout 2005 he and Griffin had numerous conversations about Griffin becoming U.S. Attorney when Cummins left, although Cummins said he had always assumed that the decision to resign would be his to make. Cummins told us that he just assumed Griffin would get the job because he was so well connected politically.
Griffin told us that even though he had such conversations with Cummins, he did not take action to push Cummins to move on. Rather, Griffin said, “I was laying low.” Griffin also said that under no circumstances would he have told Cummins that his name was on a list of U.S. Attorneys the White House was seeking to replace. Griffin said that to him, Cummins being removed and his becoming U.S. Attorney were on two separate tracks. Griffin said, “I didn’t know why he was being fired, but I knew that if he was going to be fired, then I wanted to be considered for that job.”
In August 2005, while still working at the White House, Griffin was notified that his Army Reserve unit was going to be mobilized to Fort Campbell, Kentucky. Griffin left the White House for Fort Campbell in September 2005. Griffin said that before he left he discussed with Miers his concern that someone else would be appointed U.S. Attorney before Griffin’s tour of duty ended. Griffin said he had a distinct recollection that in either August or September 2005 Rove told him that he and Miers had discussed Griffin’s desire to become U.S. Attorney, and Rove indicated to Griffin something to the effect that “it may work out.”
Griffin said that while he was on Army Reserve duty during the fall of 2005, he was in frequent contact with Scott Jennings (who had replaced Griffin as the White House Deputy Director of Political Affairs) and others in both the White House and the Department of Justice. Jennings told us he did not know why Cummins was removed. Jennings also said he believed Cummins had publicly stated that he was looking for another job. Jennings said that while it was the White House’s intention that Griffin would eventually become U.S. Attorney in Arkansas, he did not believe that Cummins would be removed in order to make that happen.
As noted previously in this report, the initiative to replace U.S. Attorneys lay dormant for several months after Sampson sent Miers his March 2005 list. Cummins told us that although he had thought he might begin job hunting by the end of 2005, the First Assistant U.S. Attorney in his office took early retirement and Cummins felt it was not a good time to be out of the office actively seeking employment.
On January 9, 2006, after consulting with Goodling, Sampson sent an e-mail to Miers and Deputy White House Counsel William Kelley discussing “the remov[al] and replace[ment] of U.S. Attorneys whose four year terms have expired.” Sampson provided the names of nine U.S. Attorneys he recommended removing, along with potential replacement candidates for five of them. As one of the five replacements, Sampson recommended that Griffin replace Cummins in the Eastern District of Arkansas.
During the fall of 2005 and spring of 2006, while on Army Reserve duty, Griffin had stayed in contact with Jennings and others in the White House, and with Sampson at the Department. Sampson told congressional investigators that sometime in the spring of 2006 Miers asked him about the possibility of Griffin becoming U.S. Attorney in the Eastern District of Arkansas. Sampson said that since Cummins was on the list of U.S. Attorneys who might be removed, Sampson began to move the process forward. Sampson told us that he believes, however, that the White House would have deferred to the Department if it had indicated reluctance to remove Cummins.
We were unable to find any documentation reflecting Miers’s inquiry to Sampson in the spring of 2006 about Griffin replacing Cummins. We found one e-mail dated April 10, 2006, in which Griffin informed Sampson that he was going to be sent to Iraq the following month and asked Sampson, “Is everything still on track?” Griffin forwarded his résumé to Sampson on April 26, 2006, and wrote, “Thank you for all your help. I greatly appreciate it.”
In an e-mail dated May 11, 2006, Sampson asked Deputy White House Counsel Kelley to call to discuss Griffin’s nomination for U.S. Attorney in the Eastern District of Arkansas. In early June 2006, Griffin sent by e-mail his résumé and military biography to Associate White House Counsel Richard Klingler, who was assigned to work on U.S. Attorney and judicial nominations in the Eighth Circuit, which included Arkansas.
Griffin told us that while he was in Iraq he communicated with Jennings and Rove about becoming U.S. Attorney when he returned to the United States. According to Griffin, no one promised him he would be U.S. Attorney when he returned, although Rove assured him that the White House was at a minimum obliged to bring him back to the White House because he had been on military leave.
On June 13, 2006, an administrative assistant to Miers called EOUSA Acting Deputy Director Natalie Voris to request pre-nomination paperwork for Griffin for the position of U.S. Attorney in the Eastern District of Arkansas.84 Voris told us that she thought there was a mistake because there was no vacancy in Arkansas at the time. According to Voris, the routine procedure was to forward the pre-nomination paperwork after candidates had been interviewed by the Department’s selection panel, and after the White House Judicial Selection Committee had made its decision about who to recommend to the President. Voris said the June 13 request from the White House “raised a lot of red flags in [her] mind” because she had never heard anyone say that Cummins was leaving, and there had been no panel interviews for the Eastern District of Arkansas U.S. Attorney position. Voris said she talked to Goodling, who confirmed that the pre-nomination paperwork should be filled out for Griffin because Cummins was being asked to resign so Griffin could take his place.
As requested, Voris transmitted Griffin’s pre-nomination paperwork to the White House on June 13, 2006. Later that evening, Goodling sent Sampson an e-mail informing him that the White House had received Griffin’s pre-nomination paperwork. Goodling informed Sampson that she would direct EOUSA Director Battle to call Cummins the following day to tell him to resign.
E-mail records show that Goodling kept Sampson informed about the status of Cummins’s resignation and Griffin’s upcoming nomination. Sampson said that once the President had approved Griffin to be the nominee on June 21, 2006, all that was left for the Department to do was to “make it happen.”
In her congressional testimony, Goodling said she advised McNulty in the early spring of 2006 that Griffin would be replacing Cummins at some point, and a June 13 e-mail to Sampson from Goodling states that she had advised the Office of the Deputy Attorney General that “this was likely coming several months ago.” McNulty told us that he was aware sometime during the summer of 2006 that Cummins had been asked to move on to make a place for Griffin, but he said he did not know at the time how Griffin had come to the Department’s attention.
Gonzales told us that he recalled that “the White House was interested in seeing if we could find a way to get Griffin in,” and that Griffin was “well qualified,” although Gonzales said he could not recall how he learned that information. Gonzales approved the pre-nomination paperwork forwarding Griffin’s name to the President on June 13, 2006.
Battle told us that Goodling instructed him to call Cummins, thank him for his service, and tell him that the Administration wanted to give someone else the opportunity to serve. Battle said that Goodling also asked him to determine how much time Cummins would need to move on and to report back to her his reaction. According to Battle, Goodling did not tell him who was going to replace Cummins. Battle said he was upset about having to make the call to Cummins, especially because he had visited Cummins’s district a few months earlier and had had a great visit. Battle said he had spent 2 days in the district meeting with Cummins’s management staff, and said he believed the office was performing at a high level. However, Battle did not raise any objections or discuss his concerns with any Department leaders. He made the call to Cummins, as instructed, on June 14, 2006.
Battle said that when he called Cummins, Cummins asked whether he had done something wrong. Battle responded that he had been asked to make the call but was not aware of anything and was not in a position to discuss the matter. Battle said he told Cummins something along the lines of “U.S. Attorneys serve at the pleasure of the President and sometimes the Administration wants to go in a different direction and give someone else the opportunity to serve.” Battle said that Cummins said he knew he was going to be asked to move on, and was aware that Griffin would likely replace him.
Cummins said Battle told him he would likely have 60 to 90 days to resign. Cummins told us that although he had had a few conversations with friends and colleagues about leaving, he had not done much to seek other employment. Cummins said that he “had no plan to leave without a plan, and I didn’t have a plan the day they called me.” Cummins said he assumed that Griffin or someone else had become impatient after Cummins had indicated to Griffin that he would resign but had not done so. Cummins said that after the call from Battle, he began looking for a job in the private sector.
One of the allegations concerning Griffin’s appointment to replace Cummins was that the Administration intended to bypass the traditional Senate confirmation process by installing Griffin as Interim U.S. Attorney pursuant to 28 U.S.C. § 546. As described previously in this report, prior to its amendment in March 2006 the statute allowed an Interim U.S. Attorney appointed by the Attorney General to temporarily serve for 120 days, after which the federal district court could appoint an Interim U.S. Attorney to serve until a new U.S. Attorney was confirmed by the Senate. The amendment provided that the Attorney General could appoint an Interim U.S. Attorney to serve indefinitely, or until the Senate confirmed a new U.S. Attorney. In the next section, we discuss the facts leading to Attorney General Gonzales’s December 2006 decision to appoint Griffin to be the Interim U.S. Attorney.
On June 20, 2006, Goodling informed Sampson that Battle had instructed Cummins to resign. On June 21, the White House’s Judicial Selection Committee voted in favor of Griffin’s nomination, and the President signed the intent to nominate Griffin for the upcoming vacancy.
According to e-mails exchanged between Goodling and Griffin in late June and early July 2006, Goodling notified Griffin that the Department would begin his background investigation during the week of June 28. However, on July 5, 2006, Goodling informed Griffin that the investigation had been delayed because the White House had neglected to contact the Arkansas Senators to inform them of the intent to nominate Griffin, which was the standard procedure.85 Griffin responded that “both chiefs of staff [to the Senators] are my very good friends . . . it could potentially be a mistake if they were not the first people in each office to hear my name and learn of movement on my front.” Goodling replied that she had discussed the matter with Associate White House Counsel Klingler, who told Goodling that he would make the calls and would reach out to Griffin if they needed his assistance.
According to both Griffin and Cummins, in early July Klingler called Arkansas Congressman Boozman, the Republican leader of Arkansas’s congressional delegation, and told him that the White House had decided to remove Cummins as U.S. Attorney and replace him with Griffin. According to Cummins, when Boozman’s staff informed the Democratic Senators’ staffs, the news apparently was not well received.
Cummins said that Bob Russell, Senator Pryor’s Chief of Staff, called him to confirm what they had heard from Boozman’s staff – that Griffin was going to replace Cummins as U.S. Attorney. Cummins said he explained to Russell that he had been thinking about leaving, and he told Russell he did not believe it was in his best interest for Senator Pryor to raise concerns about his removal. Cummins said he was not embarrassed that he was being removed because he did not have any questions about his performance as U.S. Attorney. However, he thought it would be enormously embarrassing to the Department to have to explain that the White House wanted to remove him merely to let Griffin serve as the U.S. Attorney.
In early August 2006, while Griffin was still in Iraq, the White House arranged for him to speak to Senator Pryor about his proposed nomination. According to Griffin, the telephone call did not go well. Griffin said that both Pryor and his Chief of Staff told Griffin they had concerns about his qualifications to be U.S. Attorney.
Griffin said that although he was filling out the paperwork in preparation for the nomination process at that time, he was discouraged by the conversation with Senator Pryor and thought that if worse came to worst the President might give him a recess appointment as U.S. Attorney.86 In mid-August, Griffin returned to the United States.
Griffin told us that in August 2006, sometime after he had spoken to Senator Pryor, he learned that an appointment under the Patriot Act amendment would allow him to serve as Interim U.S. Attorney indefinitely. Griffin said he had the sense that was a definite possibility in the face of Pryor’s opposition, although he said he did not want to have to use that avenue.
In August 2006, Sampson, Goodling, and Jennings discussed how to proceed with Griffin’s nomination in view of Senator Pryor’s opposition. Another concern was that Griffin was still considered a White House employee when he returned from Iraq, although Griffin said the White House had no position open for him at the time.
In an e-mail to Sampson on August 18, Goodling proposed that the Department hire Griffin as a political appointee and then detail him to the Eastern District of Arkansas as Interim U.S. Attorney. Goodling said that because Cummins had not yet resigned, however, she would give him a target date for his resignation, “particularly if we go this route since it’s a lot faster than the nom/conf route, obviously.” In the August 18 e-mail exchange, Sampson and Goodling discussed whether to appoint Griffin to the Criminal Division or the Deputy Attorney General’s Office, and Sampson wrote that he did not “think it should really matter where we park him here, as AG will appoint him forthwith to be [U.S. Attorney].”
Scott Jennings told us that he learned from the White House Office of Legislative Affairs that the Arkansas Senators had reservations about Griffin, which Jennings characterized as “political concerns.” Jennings said that the problem with the Senators did not change his thinking about having Griffin go through the Senate confirmation process; rather, he said he was wondering what extra measures would have to be taken to make sure that Griffin’s nomination was ultimately successful. Sampson and Jennings both told us that the intent at this time was to have Griffin go through the confirmation process, but first be appointed Interim U.S. Attorney and, as Jennings put it, “show the Democratic senators [in Arkansas] he’s up for the job.” Jennings said they reasoned that if they could get Griffin into the office he could bolster his credentials and that would demonstrate to the Senators that he was capable and should therefore be confirmed.
Cummins said that by August 2006 he knew that Griffin would not be back in Arkansas until the end of September. Cummins said he told Griffin that if Griffin abruptly arrived as Interim U.S. Attorney just after Cummins resigned without having another job, it would be obvious that the White House had forced Cummins out, which could pose difficulties for Griffin. Cummins said he proposed to Griffin that a cleaner transition would be for Griffin to return to the Eastern District of Arkansas as a Special Assistant U.S. Attorney while Cummins finalized his plans to return to the private sector. On August 24, 2006, Griffin contacted Jennings about Cummins’s proposal, and Jennings e-mailed Sampson asking for his opinion about the proposal. Sampson replied, “I think it’s a great idea and endorse it wholeheartedly.”
On August 24, 2006, the Arkansas Times printed an editorial stating that Cummins would likely be stepping down in the near future. The editorial speculated that Griffin would be Cummins’s successor.87 The editorial also implied Griffin may have participated in voter caging in past elections, noting:88
He’d likely have to endure some questioning about his role in massive Republican projects in Florida and elsewhere by which Republicans challenged tens of thousands of absentee votes. Coincidentally, many of those challenged votes were concentrated in black precincts.
Goodling forwarded the article to Sampson and Jennings. We found no indication that the article raised concerns about Griffin at the Department or at the White House.
By the end of August, the Department stopped preparing the paperwork for Griffin to go through the formal presidential nomination and Senate confirmation process. In an e-mail dated August 30, 2006, Griffin informed an EOUSA staff member that he had spoken with Jennings and “[H]e doesn’t see any reason to proceed with the senate paperwork since the appointment will occur the other way.” Jennings told us that while he did not recall discussing the issue with Griffin, by August 30 the White House was aware it would not be nominating Griffin at that time. Jennings said that instead Griffin would be given a political appointment in the Department so that he could then be detailed to Little Rock “to wait out Bud Cummins.”
In an e-mail dated September 13, 2006, Miers asked Sampson for the “current thinking on holdover U.S. Attorneys . . . .” Later that day, Sampson provided Miers with another removal list that included districts where the U.S. Attorney position was vacant, soon to be vacant, and rumored soon to be vacant. In his e-mail to Miers, Sampson described Cummins as a “USA in the Process of Being Pushed Out,” and he described eight other U.S. Attorneys as “USAs We Now Should Consider Pushing Out.” Sampson noted, “I strongly recommend that, as a matter of Administration policy, we utilize the new statutory provisions that authorize the AG to make USA appointments.” Sampson wrote that by bypassing the Senate confirmation process, “we can give far less deference to home-state Senators and thereby get (1) our preferred person appointed and (2) do it far faster and more efficiently, at less political cost to the White House.”
Sampson told congressional investigators that his recommendation to use the Attorney General’s appointment authority in this manner never got any “traction” for any district other than the Eastern District of Arkansas. Sampson said he did not recall discussing the recommendation with Attorney General Gonzales at the time.
Gonzales told us that he had no specific recollection of discussing with Sampson at this time the idea of using his interim appointment authority to bypass Senate confirmation, and Gonzales said he would not have supported it.
Griffin’s military leave ended on September 26, 2006, and he returned to the White House for 1 day. On September 28, 2006, he was appointed to a political position as a Counselor to the Criminal Division Assistant Attorney General and was immediately detailed to the U.S. Attorney’s Office in Little Rock as a Special Assistant U.S. Attorney.
Griffin told us that because he considered Cummins to be a friend, he did not want to push him out without having another job. Griffin said that when Cummins still did not have another job by October 2006, Griffin asked Cummins to stay until after the election in November 2006, because Griffin was concerned that if Cummins left before the election Griffin would be the subject of political attacks.
Cummins said that he had made up his mind to leave sometime in November, but Griffin asked him to stay until Griffin returned in mid-December from a long-planned vacation.
In mid-October 2006, Sampson forwarded to Elston, the Deputy Attorney General’s Chief of Staff, the e-mail Sampson had sent to Miers on September 13 listing the status of certain U.S. Attorneys recommended for replacement and noting that Cummins was “in the process of being pushed out.” In an e-mail dated October 17, 2006, Elston responded that he agreed with Sampson’s recommendations. Elston told us that he did not question Cummins’s inclusion on the list because he understood that Cummins had indicated he was going to resign and the Administration had chosen Griffin to take his place.
In an e-mail on December 1, 2006, Griffin notified Goodling that Cummins intended to resign on December 20, 2006.
On December 8, a panel composed of Battle, Margolis, and Goodling interviewed Griffin for the position of Interim U.S. Attorney. Later that day, Goodling sent an e-mail to Griffin informing him that the Attorney General intended to appoint him Interim U.S. Attorney, and she asked Griffin to “keep this information close hold . . . until we notify the Chief Judge and the Senators of the Attorney General’s action.” Griffin said that after his interview with the panel, Goodling informed him that he would be appointed pursuant to the Patriot Act amendment, which would allow him to serve indefinitely.
On December 13 and 15, 2006, Attorney General Gonzales and Senator Pryor discussed Gonzales’s intention to appoint Griffin Interim U.S. Attorney. According to Sampson, Pryor had contacted the Attorney General on December 13 after he learned that Cummins planned to resign on December 20.
Gonzales told us that during their conversation on December 15, he informed Senator Pryor that he was going to appoint Griffin to be Interim U.S. Attorney to replace Cummins, and he sought to determine whether Pryor would eventually support Griffin’s nomination. Gonzales said he conveyed his hope that Senator Pryor would do so, and asked Pryor to meet with Griffin. Gonzales said that when he informed Senator Pryor that Griffin was going to serve as Interim U.S. Attorney, he also told Pryor that he wanted to see how Griffin would perform and that Griffin’s interim appointment would also give Pryor the opportunity to see how Griffin would do. According to Gonzales, Pryor agreed to meet with Griffin sometime after the upcoming holidays.89
On December 16, 2006, Griffin forwarded to Goodling an article that appeared on the front page of the Arkansas Democrat Gazette stating that Senator Pryor was “irked” by the “surprise notice that ex-Rove aide [was] named U.S. Attorney.” Goodling responded that the important thing was that Pryor’s position concerning Griffin was somewhat open and Griffin had a real opportunity as Interim U.S. Attorney to win Pryor’s support. On December 18, Goodling forwarded the article to Oprison at the White House.
In an e-mail on December 19, Sampson directed the Department’s Office of Public Affairs to use talking points he wrote in responding to press inquiries about the circumstances of Griffin’s interim appointment. The talking points stated that when a U.S. Attorney vacancy arises, someone needs to be appointed even if on an interim basis to fill the vacancy, that Griffin was appointed as the Interim U.S. Attorney because of the timing of Cummins’s resignation, and that the Department “hoped that there would be a U.S. Attorney who had been nominated and confirmed in every district.”
Oprison e-mailed Sampson on December 19 that he believed the term “Interim U.S. Attorney” was problematic because the Arkansas Senators could use Griffin’s interim status to press for their own nominee rather than supporting Griffin’s nomination. Oprison also expressed concern that the Arkansas Senators were “taking steps to back [the Department and the White House] into a corner” by refusing to commit to considering Griffin’s nomination.
Sampson responded to Oprison in an e-mail on the same day, “I think we should gum this to death . . . .” Sampson suggested that because Griffin’s interim appointment was technically of unlimited duration, the Department could ask the Senators to give Griffin a chance and if they still opposed Griffin after a period of time, the Department could “run out the clock” while appearing to be acting in “good faith” by asking the Senators for recommendations, interviewing other candidates, and pledging to desire a Senate-confirmed U.S. Attorney. Sampson wrote, “our guy is in there so the status quo is good for us.” Sampson also noted that there was a risk that Congress would repeal the Attorney General’s appointment authority for Interim U.S. Attorneys. Finally, Sampson wrote, “I’m not 100 percent sure that Tim was the guy on which to test drive this authority, but know that getting him appointed was important to Harriet, Karl, etc.”
Sampson, who later testified that using the interim appointment authority to bypass Senate confirmation was a “bad idea at the staff level,” told us that the idea of using this new authority was confined to Griffin and not any other U.S. Attorney positions. He admitted that he had advocated for more widespread use of the authority in September 2006, but said he did not really believe it was practical and Attorney General Gonzales never seriously considered it. Sampson told us that he was not sure that the Attorney General would have genuinely considered using the authority even in Griffin’s case. Sampson said that at the time the Department was experiencing some pressure from White House Political Affairs Director Taylor and others at the White House to use the appointment authority for Griffin in the face of Senator Pryor’s reluctance to commit to supporting his nomination. Sampson stated that he believed Attorney General Gonzales was far too cautious and careful and would not support the idea of bypassing Senate confirmation. Sampson said that at the time he believed that Gonzales was hopeful that he could persuade Senator Pryor to support Griffin’s nomination.
Sampson said that by late December 2006 or early January 2007, Gonzales had specifically rejected the idea of using the interim appointment authority to install Griffin indefinitely as U.S. Attorney, although Sampson said he could not remember exactly when he and Gonzales discussed the issue.
Gonzales told us that he could not recall a specific discussion with Sampson about use of the interim authority to bypass the Senate confirmation process. However, Gonzales said he recalled that Sampson raised the possibility of using the authority to appoint Griffin and Gonzales opposed it, thinking it was “a dumb idea.”
Oprison told us that he did not think Sampson was speaking for the Department when he sent the December 19 e-mail suggesting that “we should gum this death.” Oprison said he did not think there was a plan to avoid sending Griffin’s nomination to the Senate for confirmation, although he described it as a very fluid situation. Oprison said he recalled discussions at the White House about whether they should seek other candidates or stick with Griffin, but the ultimate decision was to stick with Griffin.
However, several individuals, including Cummins, told us that Griffin stated openly and repeatedly that he would be in the office for 2 years, with or without Senator Pryor’s approval, pursuant to the Attorney General’s interim appointment authority. Balfe, the U.S. Attorney for the Western District of Arkansas, told us that when he asked Griffin how he could stay on as U.S. Attorney without Pryor’s approval of his nomination, Griffin said he was promised he would be U.S. Attorney for 2 years, whether Pryor approved or not. Balfe said he could not recall whether Griffin told him about the Patriot Act provision at that time or if he already knew about it from press accounts, but he said he understood that Griffin meant he would be in office for more than 120 days. U.S. Attorney Jane Duke, who was the First Assistant U.S. Attorney in the Eastern District of Arkansas at the time, told us that when Senator Pryor began to question Griffin’s credentials, Griffin told her that Pryor did not have to approve his nomination because Griffin was going to be placed in office under a little-known provision in the Patriot Act and his appointment would not expire. Griffin acknowledged to us that he discussed his potentially indefinite appointment openly and he “probably” said that he would be U.S. Attorney for 2 years with or without Pryor’s support.
Cummins also told us that around this time he ran into Bob Russell, Senator Pryor’s Chief of Staff, who asked Cummins if it was true that the Department intended to keep Griffin in office without Pryor’s approval. Cummins said he did not confirm Russell’s speculation, but he did not deny it either because he did not want to lie.
On December 20, 2006, Cummins officially resigned as U.S. Attorney and Griffin was sworn in as the Interim U.S. Attorney.
On January 9, 2007, Griffin, accompanied by Nancy Scott-Finan of the Department’s Office of Legislative Affairs, met separately with Arkansas Senators Pryor and Lincoln. Scott-Finan told us that both Senators were upset that Griffin had been appointed Interim U.S. Attorney in anticipation that he would be nominated for the permanent position without any prior consultation with them.
Scott-Finan said that Senator Pryor also asked Griffin about allegations that he had participated in voter caging. Scott-Finan said Griffin “explained [it] away” by putting it in the context of a “direct mail marketing” process, and he characterized what the Republican National Committee had done as checking for bad addresses rather than challenging voters. In response to Senator Pryor’s statement that by checking for bad addresses Griffin was laying the groundwork for challenging voters, Griffin told Pryor that in the end votes were not challenged. In addition, Griffin said that any decisions to challenge votes were made above his level. Scott-Finan said that she had the sense that Senator Pryor was not open to considering Griffin’s nomination.
Cummins told us that by January 2007 he had begun to be concerned that the story he told publicly – that he had been planning to leave but had agreed to help Griffin transition into the role of U.S. Attorney – was being questioned in light of the numerous articles that were published concerning the U.S. Attorney removals in general and articles about Griffin’s appointment in particular. Cummins, who characterized his previous responses to such questions as “evasive”, said he did not want to lie if he was asked directly whether he was fired.
On January 13, the Arkansas Democrat Gazette ran a story quoting Cummins as saying that the Director of EOUSA had asked him to step down and had assured Cummins that his removal was not because of his job performance, but rather because the Administration wanted to give someone else the opportunity to be the U.S. Attorney.
On January 17, Gonzales spoke again with Senator Pryor about whether Pryor would support Griffin’s nomination and confirmation. According to Gonzales, Pryor expressed his concern that the Attorney General was using his appointment authority to avoid the Senate confirmation process. Gonzales said he pointed out to Pryor that he could have appointed Griffin for 120 days under the old law governing the Attorney General’s appointment authority. Gonzales said he told Pryor that if Pryor decided he could not support Griffin, then the Administration would solicit other candidates.
On January 18, the day after Gonzales spoke to Senator Pryor, the Attorney General testified before the Senate Judiciary Committee that the Department had asked certain U.S. Attorneys to resign after evaluating their performance, and these changes were made pursuant to his responsibility to ensure that the Department had “the best possible person” in each district. Gonzales also testified that the Administration was fully committed to having a Presidentially appointed, Senate-confirmed U.S. Attorney in each district.
Cummins told us that he grew concerned when he learned about the Attorney General’s testimony because it implied that the dismissals were undertaken in order to improve the management in each office, and he said he “knew damn well that wasn’t why they were changing out the U.S. Attorney in Little Rock.” Cummins said that since he had now admitted publicly he had been asked to leave, he believed the Attorney General’s testimony lumping him together with the other U.S. Attorneys who had been asked to resign put Cummins in an embarrassing position. Cummins therefore called McNulty to express his concerns, and Elston, McNulty’s Chief of Staff, returned Cummins’s call.
This began a series of telephone calls and e-mail exchanges between Cummins and Elston. Cummins said he expressed concern to Elston about the accuracy of the Department’s public statements and the unfairness of the Attorney General’s Senate testimony regarding the need to improve management in each district, which did not apply to Cummins. Cummins said he told Elston he was also concerned about the Attorney General’s statement that the Department was going to nominate and confirm a U.S. Attorney in every district because Griffin had indicated to Cummins more than once that he would stay on as Interim U.S. Attorney with or without Senator Pryor’s support. Cummins said that Elston indicated to him that there were serious performance-related reasons for the removal of the other U.S. Attorneys, although they did not discuss specific U.S. Attorneys. Cummins also said that Elston told him that Griffin would have to go through the nomination process or resign because the Department would not agree to let him serve indefinitely as Interim U.S. Attorney.
Elston told us that because he had no reason to believe that performance was an issue with Cummins, he was sympathetic to Cummins’s concerns about being categorized as having been removed to improve management in his district.90 McNulty told us he was also sympathetic to Cummins because his sense of the situation was not that Cummins was underperforming, but that the Administration wanted to give Griffin the opportunity to serve as U.S. Attorney.
McNulty said that he discussed Cummins with Sampson and others during the preparation sessions for his upcoming congressional testimony, and no one told McNulty there were performance concerns with Cummins. Therefore, on February 6 when McNulty testified before the Senate Judiciary Committee, he publicly stated that Cummins was in a separate category from the other U.S. Attorneys because he was asked to step aside not for performance reasons but to make way for Griffin.91
In light of McNulty’s testimony regarding Cummins and Griffin, on February 8 Senators Harry Reid, Charles Schumer, Richard Durbin, and Patty Murray wrote to Attorney General Gonzales to express concern about the circumstances of Cummins’s removal and Griffin’s appointment. The Senators requested information concerning issues such as the timing of the decision to appoint Griffin to replace Cummins and the role Karl Rove played in the decision to appoint Griffin.
The Department responded to the Senators’ letter on February 23, 2007. Sampson drafted the response, which was signed by Richard Hertling, the Acting Assistant Attorney General for the Office of Legislative Affairs. Sampson circulated the draft response to Goodling, McNulty, Elston, Moschella, Hertling, and Scolinos. The letter was reviewed and edited by Associate White House Counsel Oprison and returned to Sampson, who had the final sign-off on the language.
The Department’s response made three affirmative statements: (1) “It was well known as early as December 2004, that Mr. Cummins intended to leave”; (2) “the decision to have Mr. Griffin replace Mr. Cummins was first contemplated in the spring or summer of 2006 [and] the final decision to appoint Mr. Griffin . . . was made on or about December 15”; and (3) “The Department is not aware of Karl Rove playing any role in the decision to appoint Mr. Griffin.”
All three of these statements were misleading. On March 28, 2007, the Department informed Senators Leahy and Schumer that its review of documents collected in response to congressional requests revealed that the representations made in the Department’s February 23 response were inaccurate. The Department did not specify the inaccuracies in Hertling’s letter, but simply noted that the documents the Department had produced contradicted certain statements in the February 23 letter.
With respect to the first misleading statement - that the Department knew in December 2004 that Cummins intended to leave - Cummins had not announced in December 2004 that he intended to leave. The only indication we found relating to Cummins’s intent to leave his position at some point in the future was his statement in the small news item in the December 30, 2004, edition of the Arkansas Times, a free weekly Arkansas paper. As previously mentioned, the article stated that with four children to put through college, Cummins said he would likely begin exploring other career options, and that “it wouldn’t be ‘shocking’ . . . for there to be a change in his office before the end of Bush’s second term.”
We asked Cummins whether it was true that in December 2004 he had made it known that he planned to leave office. He told us that he had only discussed the issue in general terms, as indicated in the article in the Arkansas Times. Cummins said he did not recall discussing his leaving office with anyone at the Department at the time, and he characterized as “ludicrous” the idea that senior managers at the Department made personnel decisions based on an article about Arkansas politics appearing in a free weekly tabloid.92
The second misleading statement in the letter – that Griffin’s appointment was first contemplated in the spring of 2006 – is directly contradicted by the January 9, 2006, e-mail Sampson sent to Miers, discussed above, in which Griffin is listed as a replacement for Cummins. The statement that the final decision to appoint Griffin was made around December 15, 2006, following Gonzales’s discussion with Senator Pryor, is also misleading. As noted previously in this chapter, Sampson informed Goodling on August 18, 2006, that the Attorney General would appoint Griffin U.S. Attorney “forthwith.”
The third misleading statement in the Department’s letter was the statement that the Department was not aware of Karl Rove being involved in the decision to appoint Griffin. However, in a December 19 e-mail to Oprison at the White House, Sampson stated that he knew Griffin’s appointment “was important to Harriet [and] Karl.”
Oprison, who reviewed and edited the Department’s draft response to the Senators, told us that when he reviewed the draft he did not remember Sampson’s December 19 e-mail. In an e-mail to Sampson on February 23, 2007, Oprison attached the letter with “slight revisions,” along with the message that “Fred [Fielding], as I, want to ensure that it is absolutely consistent with the facts and that it does not add to the controversy surrounding this issue.” Oprison told us that he had not been employed at the White House when the issue of Griffin’s appointment first arose. He also stated that it was likely he was asked to review the response because Deputy White House Counsel Kelley was not in the office and there was a short turn around time for the response. Oprison stated that because the response was from the Department, he did not feel it was his role to “exercise due diligence” to confirm the factual assertions contained in the letter, even though the letter contained representations concerning White House personnel.
Sampson testified to the Senate Judiciary Committee that he “widely circulated” the draft response to the letter and that no one disagreed with the statement claiming no knowledge that Rove played any role in Griffin’s appointment. Sampson also said that at the time he drafted the response, he was unaware of whether Rove actually was interested in Griffin’s appointment. When Sampson was asked about the contradiction between this response and his December 19 e-mail in which he asserted that he knew that Griffin’s appointment was “important to Harriet and Karl,” Sampson said the December 19 e-mail was based on an assumption on his part. Sampson said he knew firsthand that Griffin’s appointment was important to Sara Taylor and Scott Jennings at the White House, and he assumed that since they reported to Rove, Griffin’s appointment was also important to Rove. Sampson said that when he was drafting the February 23 response, he thought to himself that he did not know whether Rove was actually interested in Griffin’s appointment. Sampson also said he did not recall ever discussing the matter with Rove.
Moreover, Sampson told us that he believed the other statements in the letter were accurate. With respect to the statements that Griffin’s appointment was first contemplated in the spring of 2006 and the final decision to appoint him was made on December 15, Sampson testified that when he drafted the response he was focused on when the Attorney General independently decided to appoint Griffin, which Sampson stated was after Gonzales had discussed the matter with Senator Pryor in mid-December 2006. Sampson said the response he drafted reflected this timing, and said he circulated it to make sure others thought it was accurate.
We also determined that in the initial draft of the Department’s February 23 response, Sampson proposed to Goodling, McNulty, Elston, Moschella, Hertling, and Scolinos that the letter state up front that “in the spring of 2006, White House Counsel Miers asked the Department if Mr. Griffin could be considered for appointment as U.S. Attorney upon his return from Iraq.” Sampson told us that the wording was changed in the final version of the letter to delete any mention of Miers and to make the White House’s role in Griffin’s appointment seem more passive. When we asked Sampson why that change was made, he said he had the general sense after the back-and-forth with the White House concerning the letter that Miers’s name was deleted so as not to “feed red meat up to these guys.”
During our interview, Sampson described the incoming letter as “pretty accusatory,” and he said he tried to draft a response that was accurate, responsive, and agreeable to the White House. Sampson said he believed the Department’s response was accurate, although he did not personally check the factual assertions in the letter.
Richard Hertling, who became Acting Assistant Attorney General for the Office of Legislative Affairs on January 9, 2007, after serving 4 years in the Department’s Office of Legal Policy, told us that the responses were too “cute.” Hertling acknowledged that the Department’s response misstated the timing of the decision to appoint Griffin and whether Rove was involved in Griffin’s appointment. Hertling said that at the time he signed the response he was unaware that the facts as stated in the letter were not accurate. Hertling said he did not even become aware that the U.S. Attorneys had been removed until sometime in mid-January 2007, after he became Acting Assistant Attorney General. Hertling said that Sampson prepared the response to the specific questions about Griffin.93 Hertling said he assumed that the response was truthful, accurate, and complete, and said he had no basis to question the representations contained in the letter.
With respect to the statement that Rove did not play a role in the decision to appoint Griffin, Hertling told us that he had a vague recollection of asking Sampson whether Rove was involved in Griffin’s nomination. According to Hertling, Sampson responded that he did not talk to Rove about Griffin and he did not think Gonzales did either. Hertling said he did not press the issue because the way the statement was worded seemed accurate.
On February 15, 2007, Attorney General Gonzales and Senator Pryor again discussed whether Pryor would support Griffin’s nomination as U.S. Attorney. Gonzales told us that during their conversation Pryor indicated he would not support Griffin’s nomination. Gonzales said he then told Pryor that he would confer with the Arkansas congressional delegation for names of other individuals to consider for the U.S. Attorney position, as he had previously agreed to do.
Griffin told us that Goodling called him immediately after Gonzales’s conversation with Pryor to tell him about the discussion. Later that evening, Griffin announced that he was withdrawing his name from consideration for the permanent U.S. Attorney position.
During our interview, Gonzales said he was reluctant to discuss with us conversations he had with the White House concerning his commitment to Senator Pryor to find other candidates. Gonzales said, however, that the White House was “unhappy that I had honored my commitment” to Pryor.
Griffin told us that Rove informed him that individuals in the White House were unhappy with Gonzales when they learned that he told Pryor that he would not recommend Griffin’s nomination to the White House because Pryor would not support Griffin.
Shortly after Griffin withdrew his name from consideration, Gonzales told Griffin that the process of identifying alternate candidates, vetting them, and preparing a nomination would take several months and that Gonzales was happy to have Griffin serve as Interim U.S. Attorney while the process moved forward. Griffin did so for several months and resigned on June 1, 2007.
On February 16, 2007, after Griffin had announced he was withdrawing his name from the nomination process, White House Political Affairs Director Sara Taylor sent Sampson an e-mail expressing anger at the manner in which the Department had “forced” Griffin to withdraw. Taylor also stated in the e-mail that, “McNulty refuses to say Bud is lazy – which is why we got rid of him in the first place.”
When we asked Taylor why she had the impression Cummins was “lazy,” she said she did not personally know Cummins and she did not recall specifically where she first heard that Cummins was lazy.94 Taylor told us that she had the general impression that lawyers in Arkansas did not think highly of Cummins, but also said she did not recall how she received that impression. Taylor said it was possible that she received a negative impression of Cummins from Griffin, but she said she did not believe that he was her only source. She stated that because Griffin was on her staff, she talked to “tons of Arkansans” who visited the White House whenever they were in Washington. Taylor said she likely gained her impression of Cummins through a combination of information from Griffin and from other Arkansas attorneys.
Griffin told us he did not remember ever telling Taylor that Cummins was lazy. Griffin said he did not personally believe Cummins was lazy. However, he said that he had heard similar comments about Cummins from other people and was sure he had passed on the comments. Griffin admitted that in 2005 and 2006 he might have made negative comments about Cummins to Sampson, Taylor, and others along the lines of complaining about Cummins’s failure to get another job.
We asked former White House Deputy Director of Political Affairs Jennings whether he was aware of any criticism concerning Cummins’s performance as U.S. Attorney. Jennings told us that he had heard both Griffin and Taylor criticize Cummins. Jennings said “the knock on [Cummins] specifically from Mr. Griffin was that [Cummins] was generally regarded as being lazy, and it was a widely known thing in legal circles in Little Rock.” Jennings said that Griffin and Taylor also criticized Cummins for not being in the office while he was looking for another job. Jennings acknowledged that Taylor’s awareness about events in Arkansas most likely came from Griffin.
Similar to our investigation into the reasons for Graves’s removal, our investigation of Cummins’s removal was hindered by the refusal of several former White House employees to cooperate with our investigation. In particular, Rove, Miers, Kelley, and Klingler had important and relevant information for our investigation, but they refused to cooperate with our investigation and be interviewed by us. However, we believe we were able to ascertain the reasons for Cummins’s removal.
Sampson included Cummins as one of many “weak U.S. Attorneys” on his first removal list in March 2005. When we interviewed Sampson, he said that he could not recall specifically why he identified Cummins for potential removal on this list. Sampson said he felt that Cummins was mediocre and an underperformer, although he also said he could not recall learning anything specific about Cummins’s performance between 2001 and 2005 that would have supported this belief. Sampson acknowledged that his view of Cummins was colored by information he gained from Cummins’s nomination process, not from Cummins’s performance as U.S. Attorney. While Sampson told us that he thought other Department managers also viewed Cummins’s performance as mediocre, none of the Department managers we interviewed confirmed this or said they had provided such an assessment to Sampson.
In fact, several of the Department’s senior managers, including Deputy Attorneys General Comey and McNulty, Associate Deputy Attorney General Margolis, and EOUSA Director Buchanan, told us they did not hear anything negative about Cummins’s performance. Michael Battle, the Director of EOUSA at the time of Cummins’s removal, had an extremely positive view of Cummins’s service as U.S. Attorney. Battle said that he was not aware of any problems or dissatisfaction within the Department concerning Cummins’s performance, and Battle added that he considered Cummins to be one of the top five U.S. Attorneys in the country. In addition, the two EARS evaluations of Cummins’s office over a 4-year period were positive about his management of the office and his adherence to the Department’s priorities.
We also found no factual underpinning for certain derogatory public comments that surfaced about Cummins after the Department removed him. For example, the Department produced to Congress e-mail records between Sampson and White House Political Affairs Director Taylor. In one e-mail, Taylor commented angrily that Cummins was “lazy – which is why we got rid of him in the first place.” Taylor subsequently apologized for this comment, and we found no support for this comment during our investigation.
The evidence shows that once Sampson provided to the White House his initial list of U.S. Attorneys recommended for removal, White House officials pushed for Griffin to replace Cummins. In mid-March 2005 Karl Rove suggested to White House Counsel Harriet Miers that Griffin could be considered for Cummins’s U.S. Attorney position, and Miers discussed with Griffin his desire to become a U.S. Attorney. Over the next year, throughout Griffin’s tenure both at the White House and during his military service, Griffin continued to discuss his desire to be U.S. Attorney in Arkansas with Rove and Miers.
In Sampson’s January 2006 list of U.S. Attorneys, he recommended that the White House remove Cummins and listed Griffin as a potential replacement for Cummins. After the removals, Sampson claimed that by January 2006 Cummins had indicated that he intended to resign and that this was the reason Griffin was chosen to replace him. In fact, Cummins had not stated at that time when he intended to resign. Rather, Cummins had only indicated to a small Arkansas newspaper that it would not be shocking for him to leave before the end of President Bush’s second term.
Nevertheless, in June 2006, before Cummins had made any plans to resign, the White House began Griffin’s pre-nomination process. On June 14, EOUSA Director Battle was instructed to ask Cummins for his resignation and inform him that the Administration wanted to give someone else the opportunity to serve. While Battle was surprised and upset at the directive, he did not question it and made the call as instructed.
In sum, while Sampson said he thought Cummins was “mediocre,” primarily based on his interview of Cummins before he became the U.S. Attorney, neither Sampson nor anyone else in the Department evaluated Cummins’s performance before Cummins was placed on the initial removal list. After that, the White House began pressing for Griffin to be placed in Cummins’s position, and in June 2006 Cummins was instructed to resign to provide a place for Griffin.
We found that after Cummins was instructed to resign and Griffin was announced as his replacement, senior Department leaders made a series of conflicting and misleading statements about Cummins’s removal.
First, in talking points Sampson drafted on December 19, 2006, for the Department’s Office of Public Affairs to use in response to any press inquiries about the circumstances of Griffin’s appointment, Sampson wrote that when a U.S. Attorney vacancy arises someone needs to be appointed even if on an interim basis to fill the vacancy and that Griffin was appointed because of the timing of Cummins’s resignation. In fact, the White House and the Department had directed Cummins to resign so that Griffin could take his place. The Department’s talking points left the misleading impression that because of the unexpected timing of Cummins’s resignation, the Department had to install Griffin as Interim U.S. Attorney. In fact, the Department planned to remove Cummins and install Griffin.
In his January 18, 2007, testimony before the Senate Judiciary Committee, Attorney General Gonzales testified that the Department had asked U.S. Attorneys to resign after evaluating their performance, and changes were made pursuant to the Attorney General’s responsibility to ensure that the Department had “the best possible person” in each district. However, we found no evidence that either Sampson or any other Department official evaluated Cummins’s performance. Nor does the evidence show that Griffin was chosen to replace Cummins because Griffin was considered to be the “best possible person” for the job.
Moreover, contrary to the Attorney General’s testimony, Deputy Attorney General McNulty testified in his February 6 appearance before the Senate Judiciary Committee that Cummins was not asked to step aside for performance reasons, but rather to make way for Griffin. In an e-mail after the testimony, Sampson endorsed McNulty’s statement that Cummins’s removal was not connected to his performance, but was “more related to the opportunity to provide a fresh start with a new person in that position.”
After this public testimony, the Department made other misleading statements about Cummins’s removal. The most troubling were the representations contained in the February 23 response to a letter from several Senators raising concerns about Cummins’s removal. The Department’s February 23 letter, drafted by Sampson and circulated to various Department senior managers and the White House, made three significant misleading statements. The first was that “It was well known as early as December 2004 that Mr. Cummins intended to leave . . . .” In fact, as noted above, Cummins had simply said it would not be shocking for him to leave before the end of President Bush’s second term.
The second concerned the timing of when the White House first contemplated Griffin’s appointment and when the final decision was made to appoint Griffin. The letter stated that “the decision to have Mr. Griffin replace Mr. Cummins was first contemplated in the spring or summer of 2006 [and] the final decision to appoint Mr. Griffin . . . was made on or about December 15 . . . .” In fact, as discussed above, Griffin’s appointment was contemplated earlier than that, and the Department decided to appoint him to be the U.S. Attorney much earlier than December 15, 2006.
The third misleading statement in the letter was that “The Department is not aware of Karl Rove playing any role in the decision to appoint Mr. Griffin.” This statement is contradicted by the evidence described in this chapter which indicated that Rove was involved in the decision to appoint Griffin and that Sampson was aware of that fact. The statement is also contradicted by Sampson’s own e-mail on December 19 to Associate White House Counsel Chris Oprison in which Sampson wrote, “I’m not 100 percent sure that Tim was the guy on which to test drive this authority, but know that getting him appointed was important to Harriet, Karl, etc.” While Sampson later explained this e-mail by stating that he “assumed” but did not know that Rove was involved in the decision to appoint Griffin, we found this justification unpersuasive and belied by the evidence.
Finally, our investigation examined the allegation that the Department intended to appoint Griffin to be Interim U.S. Attorney indefinitely by using the new authority granted to the Attorney General in the Patriot Reauthorization Act to bypass the Senate confirmation process.
We concluded that when the Department initially developed and implemented the plan to replace Cummins with Griffin, it intended to nominate Griffin and seek his confirmation through the normal Senate process. After Cummins was directed in June 2006 to resign, the White House’s Judicial Selection Committee voted in favor of Griffin’s nomination, and the President signed off on the intent to nominate Griffin. However, the White House did not follow the traditional practice of informing the home-state congressional delegation and soliciting U.S. Attorney candidate names. This deviation from the customary procedure contributed to the belief that the Administration intended to bypass the Senate’s normal role in U.S. Attorney nominations.
The selection of Griffin quickly ran into opposition from members of Congress from Arkansas, particularly Senator Pryor. The evidence indicated that at this point the Department officials responsible for Griffin’s nomination – particularly Sampson and Goodling – considered appointing Griffin to be the Interim U.S. Attorney indefinitely, using the new Patriot Act authority. For example, Griffin told us that he learned from Goodling sometime after he had spoken to Senator Pryor that an appointment as Interim U.S. Attorney under the Patriot Act amendment would allow him to serve as U.S. Attorney indefinitely.
Moreover, although Sampson and Jennings told us that the problems with the Arkansas Senators did not change their thinking about having Griffin go through the traditional nomination and Senate confirmation process, the documentary evidence does not support this claim. For example, by mid-August 2006 the Department had stopped preparing the paperwork for Griffin to be nominated by the President and confirmed by the Senate. In addition, in an e-mail dated August 30, 2006, Griffin informed an EOUSA employee that he had spoken with Jennings who “doesn’t see any reason to proceed with the senate paperwork since the appointment will occur the other way.” In a September 13, 2006, e-mail to Miers, Sampson also wrote, “I strongly recommend that, as a matter of Administration policy, we utilize the new statutory provisions that authorize the AG to make USA appointments.” Sampson wrote that by bypassing the Senate confirmation process, “we can give far less deference to home-state Senators and thereby get (1) our preferred person appointed and (2) do it far faster and more efficiently, at less political cost to the White House.”
Gonzales told us that he had no specific recollection of discussing this issue with Sampson at the time, although he said he did not support using the interim appointment authority to bypass the Senate confirmation process.
In December 2006, after Cummins resigned, Griffin was appointed as Interim U.S. Attorney. Gonzales discussed Griffin’s appointment in several conversations with Senator Pryor. According to Gonzales, he asked Pryor to support Griffin and said that Griffin’s interim appointment would give Pryor the opportunity to see how Griffin performed. Pryor did not respond positively, and a newspaper article from Arkansas stated that he was “irked” by the surprise notice of Griffin’s appointment as Interim U.S. Attorney. Sampson then wrote another e-mail suggesting that Griffin should remain as the Interim U.S. Attorney indefinitely, bypassing Senate confirmation. In response to concern from White House Associate Counsel Oprison that the Arkansas Senators could use Griffin’s interim status to press for their own nominee, Sampson responded “I think we should gum this to death . . . .” Sampson also wrote that because Griffin’s interim appointment was of unlimited duration, the Department could “run out the clock” while appearing to be acting in good faith by asking the Senators for recommendations, interviewing other candidates, and pledging to desire a Senate-confirmed U.S. Attorney.
Sampson later disavowed this e-mail, labeling it a “bad idea at the staff level.” He also said that he did not really believe the plan was practical, and that Attorney General Gonzales never seriously considered it. Gonzales also told us that he did not support this idea. In addition, in the face of continuing opposition from Senator Pryor to Griffin’s appointment, Griffin resigned and the Department sought other candidates to be nominated to the U.S. Attorney position.
Our investigation did not find evidence that Attorney General Gonzales ever supported the idea to appoint Griffin to an indefinite term to avoid the Senate confirmation process. However, the evidence showed that he was not closely involved in Griffin’s appointment process, and that Sampson, the main architect and implementer of the plan to replace U.S. Attorneys, advocated making Griffin the Interim U.S. Attorney indefinitely when his nomination was opposed by the Arkansas Senators. According to Sampson’s and Gonzales’s recollections, Sampson took these actions on his own, without input and supervision from Gonzales. But Sampson’s ideas were more than “a bad idea at the staff level” – he advocated a plan and began implementing it. Only in the face of determined opposition by Senator Pryor, as well as the controversy surrounding the removal of the other U.S. Attorneys, did Sampson abandon this plan.
In sum, we concluded that Cummins was not removed for performance reasons, as initially suggested by the Department. His performance was never evaluated, and no Department leader had suggested that Cummins’s performance was lacking. Sampson stated that he thought Cummins was “mediocre” but he never assessed his performance, and he later agreed with McNulty that Cummins was not removed for performance reasons. Rather, the evidence shows that the main reason for Cummins’s removal, and the timing for his removal, was to provide a position for former White House employee Griffin.
As we discuss in more detail below, Griffin served as a political appointee in the Department’s Criminal Division from 2001 to 2002, and he was detailed for 9 months as a Special Assistant U.S. Attorney to Cummins’s District. Griffin also served as Research Director for the Republican National Committee before the 2004 election, and in March 2005 began working at the White House as Deputy Director of the Office of Political Affairs.
Associate White House Counsel Dixton, who was on the panel that interviewed Griffin, told us that although Griffin did extremely well during the interview, Congressman Boozman did not support Griffin because Boozman felt strongly that Balfe was the better candidate based on his extensive prosecutorial experience in Arkansas.
It is unclear why Griffin was attending these meetings. According to Griffin, Taylor had offered him the Deputy Director of Political Affairs position in February 2005, but he told her he could not begin until after his wedding in Arkansas in early April. Taylor insisted she needed him to begin immediately, so as a compromise Griffin said he volunteered a few days a week acting as Taylor’s Deputy when he was in Washington. Griffin said that the Directors meetings were regular morning meetings called by Rove and attended by the Directors and Deputies of the White House offices under Rove’s supervision, such as the Office of Political Affairs and the Office of Intergovernmental Affairs.
Griffin said that as Deputy Director of Political Affairs he primarily focused on hiring political appointees throughout the Executive Branch, with the exception of the appointment of U.S. Attorneys, which was handled by the White House Counsel’s Office.
Voris said that the pre-nomination paperwork consists of the candidate’s résumé, a photograph, a White House data information sheet containing the personal data of the candidate, and a transmittal memorandum from the Attorney General to the White House Counsel recommending the candidate for possible presidential nomination.
Goodling’s e-mail informed Griffin that the standard procedure was for the White House to wait to ask the Department of Justice to send the pre-nomination paperwork until after the home-state Senators had been consulted, and she acknowledged that the White House had called the Department “a little too soon.” According to Sampson, the normal procedure for nominating U.S. Attorneys was to have a vacancy and then to solicit candidate’s names from the home-state Senators or from the lead congressional delegation member in the President’s party.
Cummins said he had initiated a conversation about his upcoming resignation with a reporter for the Arkansas Times, in part because he did not want his resignation to appear to be shocking and in part because he was trying to get the word out that he was available for employment in the private sector. However, Cummins said that he was not the source of the remainder of the information in the editorial.
Voter caging refers to the practice of sending mail to addresses on the voter rolls, compiling a list of the mail that is returned undelivered, and using that list to purge or challenge voters’ registrations on the grounds that the voters on the list do not legally reside at their registered addresses.
Sampson also spoke with Arkansas Senator Blanche Lincoln’s Chief of Staff about Griffin. In an e-mail dated December 15, 2006, to Goodling and Associate White House Counsel Chris Oprison, Sampson wrote:
“Chris, I think the White House (you) needs to continue the dialogue with the Senators re our desire to have the President nominate, and the Senate confirm, Griffin. They think they smell a rat, i.e., that we are doing an end around of their advice and consent authority by exercising the new, unlimited AG appointment authority.”
Elston also said that when he learned about the Department’s effort to identify weak U.S. Attorneys and ask them to move on, he distinguished Cummins from the others because Elston understood that Cummins had said he was planning to leave but had not yet left.
In addition, McNulty later told congressional investigators that Sampson did not tell him during the preparation for his Senate testimony that Cummins was put on the list or removed for any performance-related reasons. Further, Elston told us that Sampson was “in the room” during McNulty’s preparation session when the group discussed what McNulty would say, and no one said there were performance issues related to Cummins’s removal. In an e-mail after McNulty’s testimony, which contained Sampson’s proposed draft response to congressional concerns about Cummins’s removal, Sampson endorsed McNulty’s testimony that Cummins’s removal was not connected to his performance “but more related to the opportunity to provide a fresh start with a new person in that position.”
We found evidence that Deputy White House Liaison Angela Williamson forwarded the 2004 Arkansas Times article to Goodling on February 5, 2007. Sampson forwarded the article to Kelley at the White House on February 21, 2007, with the notation: “Addendum to the Cummins tick tock.” However, we found no evidence that anyone at the Department was aware of the article prior to February 5, 2007.