- Charlton’s Background
- The EARS Evaluation of Charlton’s Office
- Charlton’s Status on the Removal Lists
- Chronology of Events Related to Charlton’s Removal
- Charlton’s Discussions With Senator Kyl
- Tape Recording Interrogations
- Department Considers Tape Recording Policy
- Charlton Implements a Taping Policy in His District
- Pilot Project for Charlton’s District
- The Death Penalty Case
- The Department’s Procedure for Death Penalty Cases
- The Death Penalty Decision
- Charlton Seeks Reconsideration of the Decision
- Charlton Asks to Speak to Attorney General Gonzales About the Decision
- Attorney General Gonzales Denies Charlton’s Request to Reconsider
- Sampson Places Charlton’s Name on the September 2006 Removal List
- Obscenity Prosecutions
- The Obscenity Prosecution Task Force Requests Charlton’s Assistance
- Task Force Complaints About Charlton
- Investigation of Congressman Renzi
- Charlton’s Resignation
- Renzi Prosecution
- Obscenity Prosecution
- Discussion with Senator Kyl About Resources
- Tape Recording Policy
- The Death Penalty Case
This chapter examines the removal of Paul Charlton, the former United States Attorney for the District of Arizona.
Charlton graduated from the University of Arizona Law School in 1988, and then clerked for the Arizona Court of Appeals. In 1989, he became an Assistant Attorney General in the Organized Crime and Racketeering Division of the Arizona Attorney General’s Office. In 1991, he became an Assistant U.S. Attorney (AUSA) in the United States Attorney’s Office (USAO) for the District of Arizona.
Charlton said he considered seeking the Arizona U.S. Attorney position sometime in December 2000, and friends recommended him to Arizona Senators Jon Kyl and John McCain. In the spring of 2001, following Charlton’s interviews with the two Senators, the Department appointed him as Interim U.S. Attorney. After serving 120 days, Charlton was reappointed on an interim basis by the federal district court. He was nominated by the President for the permanent position on July 30, 2001, and was confirmed by the Senate on November 6, 2001.
In April 2005, Charlton was appointed as the Chair the Border and Immigration Subcommittee of the Attorney General’s Advisory Committee (AGAC), replacing David Iglesias.
Charlton’s office underwent an EARS evaluation at the end of 2003. The evaluation stated that he was “well respected by USAO staff, investigative and civil client agencies, [the] local law enforcement community, [the] Native American Nations, and [the] judiciary regarding his integrity, professionalism, and competence.” The only criticism we found in the EARS evaluation was a note that his adherence to a chain of command structure in the office had “led to a perception by some that he is inaccessible” and “not open to suggestions or criticism.”
As we discussed in Chapter Three, in March 2005 Kyle Sampson provided to White House Counsel Harriet Miers a list containing the names of all U.S. Attorneys, divided into three categories: (1) those he recommended be retained, whom he described as “strong U.S. Attorneys who performed well and exhibited loyalty to the President and Attorney General,” (2) those he recommended be removed, described as “weak U.S. Attorneys who have been ineffectual managers . . . and chafed against administration initiatives,” and (3) those for which he provided no recommendation, who had not “distinguished themselves either positively or negatively.” Sampson identified Charlton on the March 2005 list as a U.S. Attorney who had not distinguished himself either positively or negatively.
Charlton’s name did not appear on the second removal list that Sampson sent to the White House on January 9, 2006. However, as we discuss below, Monica Goodling suggested to Sampson around that time that Charlton be considered for removal. While Sampson did not include Charlton on his second removal list of U.S. Attorneys, he placed Charlton’s name on a draft list of other U.S. Attorneys who might eventually be considered for removal. Charlton’s name also did not appear on the third removal list Sampson sent to the White House on April 14, 2006, of U.S. Attorneys recommended for removal.
On September 13, 2006, Sampson sent a fourth list to the White House containing the names of U.S. Attorneys “We Now Should Consider Pushing Out.” Charlton’s name appeared on that list and stayed on successive lists until he was told to resign on December 7, 2006.
As noted in Chapter Three, in preparation for McNulty’s closed briefing of the Senate Judiciary Committee on February 14, 2006, senior Department officials discussed the reasons that supported the removals of the U.S. Attorneys. Based on their discussion, Goodling created a chart for McNulty to help him prepare for the briefing. As the basis for Charlton’s removal, the chart cited “repeated instances of insubordination” and “actions taken that were clearly unauthorized.” The chart stated: (1) Charlton advocated for additional resources for his office directly with Senator Kyl; (2) Charlton instituted a policy for tape recording interrogations; (3) Charlton did not timely file a notice that the Department would seek the death penalty in a particular case; and (4) Charlton refused to prosecute obscenity cases.137
According to notes taken during the closed briefing of the Senators, McNulty stated that Charlton was “insubordinate as to the Department’s way of doing business” concerning the death penalty and taping interrogations. McNulty also told the Senators that he was personally aware of friction between Charlton and other officials at the Department.
On March 29, 2007, Sampson testified to Congress that Charlton was removed because of policy disputes with the Department in a death penalty case and an initiative in his district to tape record interrogations. Sampson also suggested that Charlton had improperly advocated directly with Senator Kyl for additional resources for his office.
In our investigation, we examined the facts surrounding each of the allegations concerning Charlton’s removal. In the remainder of this chapter, we describe those facts and then provide our findings regarding the reasons for Charlton’s removal. In addition, we examine allegations appearing in the media in the aftermath of the removals that Charlton was removed because of his involvement in the investigation of Republican Congressman Rick Renzi.
As noted above, one of the justifications raised as a basis for Charlton’s removal was that he had, in McNulty’s words, “worked outside proper channels” to obtain an increase in the number of staff positions for the Arizona U.S. Attorney’s Office. McNulty told congressional staffers that although the issue had predated his tenure as Deputy Attorney General, he learned from the group in the preparation session for his testimony that Charlton had dealt directly with Senator Kyl concerning additional prosecutors in Arizona, and as a result the Department had to move AUSA positions out of larger districts to provide additional positions to Arizona.
This issue surfaced in the spring of 2004. Charlton said that in the spring of 2004, Arizona Congressman J.D. Hayworth sent a letter to Attorney General Ashcroft asking why the Arizona U.S. Attorney’s Office was not doing more to support immigration prosecutions on the border. Charlton said that after the Department received the letter, Sampson called him on behalf of the Attorney General to ask how many more positions he needed to make a difference. Charlton said he told Sampson that 10 additional prosecutors could make a significant impact on the district’s immigration prosecution numbers. Charlton said Sampson indicated he would work on getting the additional positions for Arizona.
Charlton told us that shortly after his conversation with Sampson, Senator Kyl made his annual visit to the district.138 Charlton said Kyl asked whether there was anything that the district needed, and Charlton mentioned to Kyl his conversation with Sampson about getting 10 additional positions for the office. Charlton said he believed that Senator Kyl subsequently spoke to Attorney General Ashcroft about this issue. Charlton said that he did not ask Senator Kyl to intervene on his behalf for more resources. He said he told Kyl about his conversation with Sampson as part of the discussion of what was happening in terms of obtaining additional resources to prosecute illegal immigration. Documents show that the U.S. Attorney’s Office subsequently received funding for seven additional prosecutors and six support staff.
In her testimony before the House Judiciary Committee, Goodling stated that she considered Charlton to be a problem because during her tenure in EOUSA she received complaints that Charlton had had unauthorized discussions with a member of Congress (Senator Kyl).
In his March 29 appearance before the Senate Judiciary Committee, Sampson testified that he recalled individuals in the Office of the Attorney General expressing concern that Charlton had directly contacted Senator Kyl in order to obtain additional resources for his office.139 During Sampson’s hearing, however, Senator Kyl publicly stated that he wanted to correct any misimpression that Charlton had initiated the conversation with him. Kyl stated that he recalled one occasion where Charlton told him the office needed more prosecutors to handle immigration cases, and that it was likely that Charlton was responding to a question Kyl had asked. Kyl said that he believed his subsequent discussion with Attorney General Ashcroft assisted in obtaining additional resources for the Arizona U.S. Attorney’s Office.
Deputy Attorney General James Comey told us that he recalled hearing at the time that members of Attorney General Ashcroft’s staff were upset that Charlton had gone around the Department to obtain additional resources. Comey said he could not recall who told him about the issue, but he remembered members of the Attorney General’s staff complaining that Charlton had gone to Senator Kyl, who then spoke to Ashcroft, reportedly causing Ashcroft to feel blindsided and compelled to provide the district with the additional resources Charlton had previously discussed with Sampson. Comey told us it was the only criticism he had ever heard about Charlton while he worked at the Department.140
Sampson testified to Congress that one of the main reasons he recommended Charlton be removed was that Charlton had attempted to require federal law enforcement agents in Arizona to tape record interrogations.
E-mail traffic shows that in the spring of 2004 Charlton began exploring with the Department’s senior leadership whether federal law enforcement agents should tape record interrogations. Charlton told us he believed his office was losing cases because of a failure to tape record interrogations. He said that in the Arizona state criminal justice system where Charlton had begun his career as a prosecutor, interrogations were generally tape recorded. He said that when he became U.S. Attorney, he wanted to change what he believed was an antiquated policy and implement a policy that would protect both crime victims and defendants.
Charlton said he first raised the issue with Deputy Attorney General Comey during a closed session at the U.S. Attorney’s conference in San Diego in 2004, and a few days later Comey’s Chief of Staff, Chuck Rosenberg, raised it with the FBI. Charlton said Rosenberg told him that the FBI was opposed to changing the policy.
During the spring of 2005, the Department’s Office of Legal Policy worked with Charlton to consider the tape recording policy and to create a strategy to address expected resistance from Department law enforcement agencies about recording interrogations. Charlton told us that he also raised the issue with Attorney General’s Advisory Committee (AGAC) Chair Johnny Sutton, who opposed changing the policy.
Charlton raised the issue with Comey again at the U.S. Attorney’s conference in Arizona in 2005. In May 2005 Comey established a working group, which included Charlton, to formally consider the matter. According to Charlton, the working group discussed the issues several times, but after Comey left the Department in August 2005 and McNulty became Deputy Attorney General in early November 2005, the issue did not move forward.
E-mail and other documents also show that throughout late 2005 Charlton was trying to persuade the FBI to agree to expand its taping policy.141 In early December 2005, the working group engaged in an e-mail exchange with Michael Elston, McNulty’s Chief of Staff, discussing the merits of the recording policy. However, Charlton said that by December 2005 McNulty had not yet indicated a willingness for the working group to continue studying the issue. According to former Principal Deputy Assistant Attorney General William Mercer, by the end of 2005 the working group had not reached a consensus on whether to recommend a taping policy, although the FBI representatives in the group were supposed to be preparing a memorandum discussing various options.
Charlton said that when nothing further happened by early 2006 concerning his desire to begin tape recording interrogations in Arizona, it was clear to him that if there was going to be a change in the policy, he would have to implement it in his district. Charlton said he believed that he could isolate his district in a way that would not affect other cases nationwide. Charlton also said that his district was uniquely situated because of its federal jurisdiction over the prosecution of crime on the 21 Indian reservations in Arizona. He said that establishing a tape recording policy in his district would assist in the prosecution of the many violent crime cases occurring on the Indian reservations, but would not affect other districts that did not have federal jurisdiction over such local crimes. Charlton also said his policy was flexible enough that if federal agents believed that they could not tape record an interrogation, they could conduct the interview without taping it.
In early February 2006, Charlton formally notified his office and all Special Agents in Charge of federal law enforcement agencies in his district about his new policy, which was scheduled to take effect on March 1, 2006.142 Charlton acknowledged to us that he did not discuss his decision to implement the new tape recording policy in his district with the Department’s leadership.
According to Charlton, after his announcement most of the law enforcement agencies in Arizona expressed no concerns to him about the new tape recording policy beyond questions about the mechanics of the program, such as whether the U.S. Attorney’s Office would purchase the recorders. Charlton said that as he had expected, both the FBI and the DEA objected to implementation of the new policy and complained to the Deputy Attorney General’s Office.
According to McNulty, FBI Director Robert Mueller called him in late February 2006 and complained that Charlton’s Arizona tape recording policy could jeopardize criminal prosecutions in other districts that did not record interrogations. McNulty said he spoke to Charlton at a U.S. Attorneys’ conference in Orlando on March 1, 2 days before the policy was to go into effect, and told him to rescind it, but Charlton refused to do so. Charlton told us that he told Principal Associate Deputy Attorney General Mercer that he would prefer to resign rather than rescind the policy.
Charlton said that McNulty repeated FBI Director Mueller’s views about the policy and expressed concern that he could not persuade Mueller to change his position opposing the taping policy. Charlton said his conversation with McNulty was interrupted before they resolved anything, and McNulty asked Mercer to continue discussing the matter with Charlton.
Charlton said that Mercer persuaded him to design a pilot project for tape recording interrogations rather than submitting his resignation over being forced to rescind the new policy. Charlton said Mercer told him to forward the proposal for a pilot project to him, and Mercer assured him that it would receive expeditious and favorable review.
Mercer also told Charlton that McNulty was upset because Charlton had committed a “procedural foul” by not clearing the initiative with the Deputy Attorney General’s Office prior to its implementation. Charlton said that Mercer’s “procedural foul” comment led him to believe that he could alleviate the concerns by framing implementation of the new policy as a pilot program in his district rather than as a finalized Department policy change.
Charlton told us that he wanted something in writing from McNulty’s office reflecting his agreement with Mercer. Charlton therefore asked Elston to confirm in writing that McNulty had asked that implementation of the new policy be delayed until his staff could review the policy and the pilot program proposal. On February 28, Elston wrote an e-mail to Charlton stating:
[McNulty] is very interested in having you submit a proposal to have a pilot program in your district. Such a proposal would receive expeditious consideration. [McNulty] understands this issue and is interested in energizing the Department’s consideration of it. You are the best advocate for the proposed policy, and he hopes you will play a significant role in the Department’s review and the interagency review process.
Charlton submitted his proposal for the pilot program to McNulty on March 15, 2006. In August 2006, McNulty’s staff recommended that he approve it. However, McNulty took no action. Charlton said that he followed up with Mercer at least once a month thereafter concerning the status of the pilot program, and Mercer reassured him that although McNulty was hesitant about the program, he would approve it.
McNulty told us that he had supported the pilot program mainly as an accommodation to Charlton because Charlton had already announced the policy to his office and to law enforcement agencies in his district, and it would have been awkward for him to rescind it. However, McNulty told us that he did not believe that the Department should pursue the policy. We found no indication that anyone from McNulty’s office told Charlton that McNulty in fact did not support the pilot program.
McNulty also told us that he thought Charlton showed poor judgment in proceeding to implement a new policy that had national implications without first obtaining Department approval. McNulty said that he had most likely discussed this matter with Sampson in their regular senior leadership meetings. McNulty told congressional investigators that he did not see Charlton’s actions at the time as insubordinate, although he acknowledged that Charlton’s actions concerning the taping policy came to his mind when he saw Charlton’s name on the list of U.S. Attorneys to be fired. However, McNulty told us that if it had been up to him he would not have fired Charlton because of his attempt to implement the new tape recording policy. Nevertheless, McNulty said he did not ask Sampson to remove Charlton’s name from the list.
Around the same time that Charlton was seeking to implement the new taping policy, he disagreed with senior Department officials over a decision to seek the death penalty in an Arizona case involving a defendant who was being prosecuted for using a firearm to commit a murder during a drug deal.
The U.S. Attorneys’ Manual describes the Department’s death penalty review process. First, the U.S. Attorney sends a memorandum containing the facts and legal analysis in the case to the Assistant Attorney General for the Criminal Division in support of a recommendation to seek or not to seek the death penalty. The Assistant Attorney General then forwards the package to the Criminal Division’s Capital Case Unit (CCU). The CCU reviews the material from the U.S. Attorney and any material submitted by defense counsel, and passes it on for a recommendation from the Attorney General’s Review Committee for Capital Cases (the Committee).143 The Committee makes a recommendation to the Attorney General through the Deputy Attorney General. The Deputy Attorney General provides his recommendation to the Attorney General when the Committee’s recommendation differs from that of the U.S. Attorney.
According to the Deputy Chief of the Criminal Division’s CCU, as a matter of practice it is also understood that a representative from the Deputy Attorney General’s Office calls the U.S. Attorney to consider the district’s view of the case when the district recommends against seeking the death penalty but the Committee votes in favor.
The Attorney General makes the final decision about whether or not to seek the death penalty. The Attorney General conveys the final decision to the U.S. Attorney in a letter authorizing the U.S. Attorney to seek or not to seek the death penalty. However, attorneys in the CCU convey by telephone or e-mail the Attorney General’s decision to the U.S. Attorney’s Office as soon as the decision is made.
In a memorandum to Criminal Division Assistant Attorney General Alice Fisher dated December 16, 2005, Charlton requested that the Department not seek the death penalty for the defendant who allegedly had committed a murder during a drug deal.144 Charlton told us that representatives of his office met with the Committee in the spring of 2006 to argue that the death penalty was not appropriate in this case. According to e-mail traffic, however, the Committee recommended in late May 2006 that the government seek the death penalty. The Deputy Attorney General also recommended that the death penalty be sought in this case.
Elston signed the recommendation for Deputy Attorney General McNulty on May 30, 2006, because McNulty was out of the country at the time. According to e-mail records, as of the morning of May 30, 2006, the Attorney General had not yet considered the Deputy Attorney General’s endorsement of the Committee’s recommendation, even though a court notice (called the “seek notice”) was supposed to be filed on the following day, May 31.145
As noted above, as a matter of practice a representative from the Office of the Deputy Attorney General calls the U.S. Attorney to consider the district’s view of the case when the district recommends against seeking the death penalty but the Committee votes in favor. Charlton told us that McNulty’s office did not give him a chance to respond to the Committee’s recommendation before the Attorney General made his decision to seek the death penalty in this case.146
In addition, according to Charlton, he was not notified that McNulty had recommended to the Attorney General that the government should seek the death penalty. Charlton said he first learned that the Attorney General had made a decision on May 31, 2006. On that day, the AUSAs handling the case were notified by a CCU attorney that the Attorney General had signed the letter to Charlton authorizing him to seek the death penalty.
Charlton’s office did not file the notice of intent to seek the death penalty on May 31 in order to allow Charlton time to further discuss the matter with the Department. The same day Charlton received the letter from the Attorney General, an AUSA in Charlton’s office filed a motion requesting an extension of time to file the notice. Later that day, the court extended the deadline to June 30, and on the defendant’s subsequent motion, extended the deadline to August 20, 2006.
Charlton contacted Jeffrey Taylor, a Counselor to the Attorney General who had responsibility for death penalty matters, and expressed his unhappiness that he had not had an opportunity to speak with McNulty or the Attorney General about the recommendation before the Attorney General decided the matter.147 Charlton said that, at Taylor’s suggestion, he decided to request reconsideration of the decision.
Charlton then contacted Criminal Division Assistant Attorney General Fisher to see if she would weigh in on the matter. Charlton said he and Fisher discussed the process by which Charlton could seek reconsideration of the decision. According to Fisher, she told Charlton she was uncertain about how Charlton should proceed without a showing that the circumstances had changed in the case because she could not simply overrule the Attorney General’s decision. Fisher said she advised Charlton to contact the Deputy Attorney General’s Office.148 Charlton said he considered his conversations with Taylor and Fisher as support for his view that the matter was not final and was open for reconsideration.
In a June 27, 2006, memorandum addressed to Fisher, Charlton requested reconsideration in part because the defense had not presented evidence in mitigation to the Capital Case Committee prior to the Attorney General’s decision. Charlton’s letter enclosed the mitigation evidence submitted by the defense and also requested that Fisher direct the Committee to meet with Charlton and the AUSAs assigned to the case to hear their arguments for reconsideration.
According to an e-mail dated July 11, an AUSA in Charlton’s office called the CCU to determine if it planned to meet with Charlton about the request for reconsideration. A CCU trial attorney informed the AUSA by e-mail that “any decision to confer with your office and the defense is within the discretion of [Assistant Attorney General Alice Fisher]. As yet, we are unaware of any request for such a conference.” Charlton responded that he would call Fisher, and e-mail traffic shows that a conference call between Charlton’s office, Fisher, and the CCU was scheduled for Thursday, July 13.
Fisher told us that during the conference call on July 13 she raised the issue of whether she could appropriately handle the request to reconsider because it was not a request for authorization to withdraw the notice based on changed circumstances, but was instead a request that she reconsider the Attorney General’s original decision.
On July 17, the CCU forwarded for Fisher’s signature a memorandum to the Attorney General which stated that Charlton’s request for reconsideration did not present the new evidence required to revisit the Attorney General’s original decision. The memorandum also stated that “the United States Attorney declined to file the notice of intent to seek the death penalty following the Attorney General’s May 31, 2006 decision, opting instead to seek reconsideration.” The memorandum stated that the material submitted by the defense did not “clearly identify any actual mitigating evidence that the Committee and the Attorney General have not already considered” and recommended against reconsideration of the Attorney General’s decision to seek the death penalty in the case.
Our review of e-mails and other documents shows that until July 17, officials in the Deputy Attorney General’s Office were unaware that Charlton had not filed with the court the notice that the Department intended to seek the death penalty. On that day, Joan Meyer, a Counselor in McNulty’s office, forwarded the CCU memorandum to Jeff Taylor in the Attorney General’s Office with the notation that “This seems somewhat disrespectful to the Attorney General . . . I don’t know how the USA thinks he has the discretion to decline to file in May.” Taylor responded by e-mail to Meyer that he had told Charlton that if Charlton thought there were changed circumstances he could ask for reconsideration. However, Taylor wrote that he did not know that Charlton had not filed the notice. Taylor then asked Meyer to contact Charlton to find out why he chose that course.
According to e-mail records, Meyer contacted Charlton that day, and Charlton told her he did not know he was required to file the “seek notice,” especially since the court had granted an enlargement of time in which to do so. Meyer informed Taylor in an e-mail that she told Charlton that the notice should have been filed when Charlton received notification of the Attorney General’s decision. Meyer also suggested to Taylor affording Charlton the courtesy of going through the review process again, but expressed concern that it might set an adverse precedent. Meyer wrote, “When the AG makes a decision, the USA needs to implement it.”
Taylor responded that he would discuss the matter with Sampson, and he asked Meyer to inform Elston. The following day, Taylor wrote to Meyer, “After discussing this with Kyle [Sampson] I think Charlton should be directed to file the seek notice in the pending matter.”
In an e-mail dated July 20, 2006, Meyer informed Elston that she had called Charlton to tell him to file the notice, and that Charlton said he understood but wanted to speak to “someone higher up, presumably the DAG or the AG.” In her e-mail to Elston, Meyer said she told Charlton it would be better to discuss the issue with Deputy Attorney General McNulty. She concluded her e-mail with: “This usa is just not going to take no for an answer.” When Elston responded that he would call Charlton, Meyer replied, “Thanks. Things like this are an abuse of the process.”
On July 20, Elston called Charlton to discuss the matter. Charlton told us that during this conversation, Elston told him there were individuals in the Department who thought Charlton had disregarded the Attorney General’s order to file the death penalty notice. After their conversation, Charlton sent an e-mail to Elston stating:
At no time was anyone attempting to ignore or refuse to file as the AG requested. Everyone here thought that [not filing the notice and obtaining an enlargement of time to file it] was the appropriate way to handle this matter in a case where we hoped to have a reconsideration of this matter. It was, until very recently, my understanding that we did not have to file our notice until the date required by the Court. No disrespect of any kind was intended. I apologize if anyone saw it as otherwise.
In an e-mail to Meyer on July 21, Elston told her about his conversation with Charlton and asked for Meyer’s input concerning the substantive aspects of Charlton’s request for reconsideration. Meyer responded, “I don’t want to accuse him of anything but I find it very difficult to believe that he was doing anything but trying to circumvent the AG’s ruling.” Meyer added that she believed Charlton “obviously has a problem with the death penalty, either because of the resource issue or personal philosophy.”149 Meyer also recommended that Elston tell Charlton there would be no meeting or “redoing the process” and instead instruct him to file the notice no later than the following week.
On July 31, Elston e-mailed Meyer and Taylor that he had spoken to Charlton and that Charlton had requested a conference call with McNulty. Taylor responded, “Charlton is really pushing it with this.” Elston also wrote that Charlton might seek to discuss the matter with the Attorney General “if (when) he gets no satisfaction from us, but we will try to dissuade him from making that request.”
On August 2, Charlton spoke with McNulty and Elston by telephone about his request for reconsideration. Charlton said he told McNulty and Elston that he did not believe the U.S. Attorney’s Office would be successful in obtaining the death penalty before the jury. Charlton explained to McNulty that the case was based on testimony from cooperating witnesses who were all drug dealers or users, and the government had modest forensic evidence in part because the Department had allegedly refused to pay for exhuming the victim’s body from a landfill south of Phoenix. Charlton said McNulty had little reaction to his presentation, although Charlton said McNulty agreed to discuss the death penalty recommendation with the Attorney General.
McNulty told us that he considered his conversation with Charlton to be the appropriate thing to do given the circumstances of the underlying case and Charlton’s view that the Attorney General should reconsider his decision. McNulty said that Charlton “pushed hard,” but after listening to Charlton’s views and after his own evaluation of the case, his recommendation to the Attorney General was that the decision to seek the death penalty should stand.
McNulty told congressional investigators that to his knowledge Charlton was the only U.S. Attorney to ever disregard a “seek letter.” McNulty also said that when Charlton did not file the notice with the court after receiving the Attorney General’s letter, it was “rather significant” because it was well established that U.S. Attorneys are required to comply with the Attorney General’s direction once a decision is made. Mercer, who was the U.S. Attorney in Montana and Principal Associate Deputy Attorney General at the time, told us that “based on training and understanding” U.S. Attorneys are aware that unlike other cases, they do not possess discretion in deciding whether or not to seek the death penalty in a capital case. Mercer said that despite the wording in the letter from the Attorney General stating, “You are authorized to seek the death penalty,” all U.S. Attorneys know that upon receipt of such a letter they are required to inform the court the prosecution will seek the death penalty.150
McNulty said that although he believed that Charlton had failed to follow the rules, he attempted to address Charlton’s request to reconsider the decision to seek the death penalty. McNulty told us he carefully reviewed the file after he spoke with Charlton, and he then met with Attorney General Gonzales and presented Charlton’s arguments. Calendar entries indicate that on August 15, 2006, a meeting between Gonzales and McNulty was scheduled from 3:30 p.m. to 3:45 p.m. to discuss Charlton’s request for reconsideration. McNulty told us he informed Gonzales that Charlton had made no new arguments since the Attorney General’s original decision, and McNulty therefore recommended that Gonzales maintain his position that the death penalty was appropriate in this case. According to McNulty, Gonzales believed his previous decision to seek the death penalty was appropriate.
In Gonzales’s public testimony before the Senate Judiciary Committee on July 24, 2007, he said he had no specific recollection of the case or of his conversation with McNulty. During our interview, Gonzales told us that he was surprised to learn shortly after making the original decision that Charlton’s office had not filed the notice. Gonzales said he did not recall taking any action at the time other than perhaps asking McNulty to discuss the matter with Charlton.
Charlton told us that shortly after McNulty’s meeting with Attorney General Gonzales, Elston called Charlton to inform him of Gonzales’s decision. According to Charlton, Elston told him that McNulty had spent a considerable amount of time discussing the issue with Gonzales, “perhaps 15 minutes.” Charlton said he thought at the time that common sense would prevail if Gonzales could listen to Charlton make the presentation. Charlton said that he asked Elston if he could speak personally with the Attorney General about the case and Elston advised him that it would be unwise to seek an audience with the Attorney General.
During Elston’s interview with congressional staff, he said he advised Charlton not to request a meeting with Gonzales because Elston believed he knew what Gonzales would say. Elston said he did not think it was worth it to Charlton to waste “political capital” with Gonzales to discuss the case further. Elston also said that the entire incident caused him to question Charlton’s judgment about how he had handled the matter.
According to an e-mail dated August 15, 2006, at 6:51 p.m., Elston forwarded to Sampson Charlton’s request to meet with Gonzales. Elston wrote to Sampson, “In the ‘you won’t believe this category’, Paul Charlton would like a few minutes of the AG’s time.” Elston told Sampson he had explained to Charlton that Charlton had already been given “extensive, unusual process” and Elston had also told Charlton he did not think it was a good idea for him to press the matter further, but Charlton insisted that Elston make the request. Sampson responded at 7:00 p.m. with a one word e-mail, “Denied.”
The following day, August 16, 2006, Elston informed Charlton by e-mail that the Attorney General “has declined your invitation to speak further about the case,” and Elston instructed Charlton to file the notice that the government was seeking the death penalty. That same day, Charlton’s office filed the notice.151
Less than 1 month later, on September 13, 2006, Sampson included Charlton’s name on his removal list for the first time. Sampson testified to Congress that Charlton was placed on the September 13 list based on policy disputes Charlton had with the Deputy Attorney General’s Office during the summer of 2006. According to Sampson, Charlton’s action in the death penalty matter was one of the two primary reasons he placed Charlton’s name on the September 13 list. The other was Charlton’s efforts to institute a new policy in his district requiring tape recording of interrogations.
Another issue that was raised in McNulty’s preparation session for his closed briefing of the Senate Judiciary Committee, and also listed in Goodling’s chart as a reason justifying Charlton’s removal, was Charlton’s alleged resistance to prosecuting obscenity cases identified as significant by the Department’s Obscenity Prosecution Task Force (Task Force). Although we did not find that any Department official asserted in testimony or interviews that Charlton’s removal was based on this issue, we examined this claim because it was listed in Goodling’s chart.
Charlton and Brent Ward, the Director of the Task Force, first met in March 2006 to discuss the investigation of an alleged distributor of illegal pornography in Arizona. Charlton said that Ward requested that Charlton assign an AUSA from his office to act as the “second chair” to a Task Force trial attorney through the investigation and ultimate prosecution of the case. Charlton told us that he initially expressed reluctance to assist the Task Force because he believed his office did not have sufficient resources to take on the additional cases the Task Force had identified. Charlton also said that while he believed that Task Force attorneys should be primarily responsible for the prosecutions, he nevertheless agreed to support the case by assigning a prosecutor to assist the Task Force attorney assigned to the Arizona case. According to e-mail traffic, on March 8, 2006, Charlton provided Ward with the name of an AUSA in Arizona who would assist with the investigation and prosecution of the case.
On April 26, 2006, Ward e-mailed a report to Criminal Division Assistant Attorney General Fisher describing what he called the “first wave” of cases from the Task Force. Ward also provided the names of the U.S. Attorneys who had been assisting the Task Force so that Fisher could personally commend them for their assistance. In that report, Ward wrote that Charlton had been “very cooperative,” but he also noted that Charlton’s office appeared to have serious resource issues that might preclude providing trial assistance to the Task Force. Ward informed Fisher that trial assistance was absolutely crucial for the Arizona case and requested that she encourage Charlton “to stick it out with [the Task Force].” We found no indication that Fisher responded to Ward or spoke to Charlton about the matter at that time.
On May 22, 2006, Ward, accompanied by an FBI Washington Field Office Special Agent in Charge (SAC) and a Task Force trial attorney, met with Charlton in Arizona to discuss the investigation of the pornography distributor.152 The case against the distributor was indicted in Arizona the following day. According to Charlton, Ward tried to persuade Charlton to have his office take over the case or to assist with the trial. Charlton said that he was unable to do so because the assigned AUSA had a busy caseload of his own, but Charlton said he would provide office space for the Task Force attorney.
E-mail records show that by the end of June 2006, Ward had begun to request that Fisher’s office assist him in persuading Charlton and U.S. Attorney Debra Yang of the Central District of California to accept responsibility for prosecution of two Task Force cases. Criminal Division Chief of Staff Matthew Friedrich said he called Charlton to ask him to take over the case in Arizona, and Charlton told him he did not have the resources to do so. Friedrich said that after he spoke to Charlton, he told Elston about Ward’s complaints that Charlton refused to take over the case or assist with the trial. According to Friedrich, however, adult obscenity cases were not a high priority for the Deputy Attorney General’s Office at that time and no one from the Deputy Attorney General’s Office raised a concern about them.153
In July 2006 Friedrich informed Elston and Principal Associate Deputy Attorney General Mercer that he wanted McNulty’s office to direct Charlton and Yang to lend resources to handle specific obscenity cases. At Friedrich’s request, in early August Mercer spoke to Charlton about taking over the Arizona task force case. Charlton said that his office was not in a position to assume responsibility for the case, but said that one of his AUSAs would assist with the case when it got closer to trial.
In an August 28, 2006, e-mail, Ward complained to Sampson that the Task Force’s efforts were at a standstill because Charlton, Bogden, and Yang refused to take over the obscenity cases the Task Force had identified and had begun to develop in their districts. Ward also complained that he was unable to get either Fisher or Friedrich to meet with him to discuss the matter. Ward asked Sampson whether the Attorney General would consider calling the U.S. Attorneys to instruct them to take over the cases. We found no response to Ward’s request, and Sampson told us he did not recall discussing the matter with Gonzales.
On August 29, 2006, Ward sent an e-mail to Friedrich stating that Charlton and Bogden’s failure to cooperate with the Task Force was going to lead to a “showdown with the FBI.” Ward also wrote that the FBI seemed to minimize its participation in the Task Force after Charlton allegedly “thumbed his nose” at Ward and the FBI SAC at their May 22, 2006, meeting. Friedrich forwarded Ward’s e-mail to Elston, who responded, “don’t throw in the towel yet.”
Elston said that he and McNulty discussed the matter in early September 2006, and McNulty indicated he wanted to familiarize himself with the cases so he could discuss them with the U.S. Attorneys. Elston told us that he knew Friedrich was frustrated at how long it was taking McNulty to directly contact the U.S. Attorneys about the obscenity cases, but Elston said McNulty wanted to have all the information concerning Ward’s complaints before he called them about the cases. In an e-mail to Friedrich on August 31, 2006, Ward prepared a timeline describing his interactions with Charlton for a proposed briefing of McNulty concerning the Arizona obscenity case.
Between September 13 and 15, 2006, the Department’s National Advocacy Center (NAC) in Columbia, South Carolina, hosted a training seminar for Department personnel and other law enforcement agencies about investigating obscenity cases. Attorney General Gonzales spoke at the seminar and underscored that obscenity prosecutions were a Department priority.
Following the seminar, Ward continued to complain about Charlton and other U.S. Attorneys. In a September 20, 2006, e-mail to Sampson, Ward stated that Charlton and Bogden were unwilling to take “good cases” presented to them. Ward asked, “In light of the Attorney General’s comments at the NAC . . . what do you suggest I do?” Ward also asked Sampson whether it was necessary for him to go through the chain of command to complain to the Attorney General or whether telling Sampson about Charlton and Bogden was sufficient. Sampson responded that Ward should go through the regular channels to avoid “step[ping] on [Fisher]’s or [McNulty]’s toes.”
That same day, Ward again complained to Friedrich and others in the Criminal Division, stating, “I would like to position them [Charlton and Bogden] for calls from the Attorney General.” On September 21, 2006, Ward provided Friedrich with summaries of the “problem districts” in which he described Charlton as “a hardened hold-out [who] will probably not budge until the AG calls, if then.” We found no evidence that the Attorney General or anyone else ever called Charlton to discuss these matters.
During his interview with us, Sampson stated that he did not place Charlton’s name on the September 13 list because of Ward’s complaints about Charlton’s lack of cooperation on obscenity cases.154 Sampson said he could not recall anything about Charlton beyond his actions concerning the death penalty matter and his attempt to implement the recorded interrogations policy as the basis for placing Charlton on the list. Sampson said that he did not ask McNulty or anyone else about Charlton but he had learned in passing sometime during the summer of 2006 about Charlton’s actions regarding the death penalty and recorded interrogations issues.
McNulty told us that at no time did he associate Charlton with concerns about failing to undertake obscenity prosecutions. McNulty said that when he learned in late October 2006 that Charlton was on the list of U.S. Attorneys to be removed, Charlton’s actions concerning the tape recording policy and the death penalty case were foremost in his mind.
Another issue that surfaced in media reports concerned whether Charlton’s removal was connected to the investigation of Republican Congressman Rick Renzi of Arizona or to a media leak about the investigation.155
The FBI’s investigation of Renzi began in early 2005. The Arizona U.S. Attorney’s Office participated in the investigation, and the Department’s Public Integrity Section joined the case in the fall of 2005. In October 2006, senior leadership in the Department became aware that Charlton’s office and the Department’s Public Integrity Section were jointly handling the investigation. According to Benton Campbell, who replaced Friedrich as Assistant Attorney General Fisher’s Chief of Staff at the end of September 2006, the Criminal Division began to closely supervise aspects of the investigation in mid-October 2006 after Fisher learned that Charlton’s office planned to employ a certain investigative technique.
On Thursday, October 19, 2006, Charlton’s office submitted a request to the Criminal Division to seek a court order to use the investigative technique. The following day, an Associated Press (AP) reporter told Department spokesperson Brian Roehrkasse that the AP planned to publish an article reporting that the Department was investigating Renzi for bribery and that the Department was using a wiretap in the investigation. Fisher responded that Campbell would brief Roehrkasse about the investigation, but cautioned that the report was not accurate.
According to Charlton, on Saturday, October 21 an Internet blog falsely reported that the Arizona U.S. Attorney’s Office was “up on a wire” and had already indicted Renzi but was sitting on the indictment until after the upcoming election. In an October 22 e-mail to Elston requesting assistance in obtaining expedited consideration of Charlton’s request to use the particular investigative technique, Charlton discussed the media reports and noted that up to this point the Department had declined to comment. Charlton informed Elston that after becoming aware of the news report, Renzi had contacted the Arizona FBI office to ask if he was under investigation, but the FBI had refused to comment.
According to Charlton, on Monday, October 23 Renzi’s Chief of Staff left a voicemail for Charlton and his public affairs officer inquiring about the status of any case against Renzi. Charlton said they did not return the staff member’s calls, and the office’s Criminal Chief immediately reported the calls to John Nowacki, a Deputy Director in EOUSA.
Charlton told us that by October 24 supervisors in the Criminal Division had approved the request to seek the investigative technique, but Assistant Attorney General Fisher’s office had not yet approved the request. Charlton said he tried to discuss the matter with Criminal Division Chief of Staff Campbell to no avail, and then went directly to Fisher. Charlton told us that Fisher expressed concern about moving forward more quickly with the investigative technique for two reasons: (1) a recent controversy concerning whether the Department was overaggressive in obtaining and executing a search warrant in U.S. Representative William Jefferson’s congressional office and, (2) the risk that disclosure of the Renzi investigation before the election could interfere with the election.
On October 25, stories about the Renzi investigation appeared in The Washington Post and The New York Times, and both quoted an unnamed Department official stating that the investigation was in a preliminary stage.
Documents show that Fisher approved the investigative technique request on October 26. Campbell said that during the week of November 2, he informed Charlton’s office that no one was authorized to take any other investigative steps until after the election.
E-mail records show that in early November 2006, Charlton complained to Fisher that Campbell’s oversight of the investigation was becoming “far too restrictive.” Campbell told us that he recognized that the Arizona U.S. Attorney’s Office was frustrated with the extent of his review, but he believed it was justified by the extraordinary circumstances of the case. Campbell also told us that his conversations with Charlton were very professional. He said that Charlton was “backing his people” and was not unreasonable. Campbell also said that the Arizona U.S. Attorney’s Office was ultimately able to take all the investigative steps it had requested. Campbell also said he was shocked when he learned in December 2006 that Charlton had been asked to resign because he had just spoken with Charlton 6 weeks earlier.
Fisher said she did not have any input into the issue of which U.S. Attorneys were to be removed. She said that if any of her thoughts or opinions were used in the decision-making process, it was without her knowledge or permission.
Sampson testified before the Senate Judiciary Committee that Charlton’s removal was not related to the Renzi investigation. He also stated that to his knowledge no one from the White House or outside the Administration advocated for Charlton’s removal. McNulty told us that he was unaware of any information that would support the conclusion that Charlton’s removal was related to the Renzi investigation. McNulty also said he heard no complaints from the Attorney General or the White House about Charlton’s actions in the Renzi investigation.
On December 7, 2006, EOUSA Director Battle called Charlton and told him that the Department wanted him to resign as U.S. Attorney by the end of January. According to Charlton, his call with Battle was a “very curt” conversation. Charlton said after speaking with Battle he called Acting Associate Attorney General Mercer, who told him that the action was being taken so others would have the opportunity to serve as U.S. Attorney before the end of the President’s term.
Charlton said that at the time he thought he was probably asked to resign because of the difficulties he had with the Department concerning the death penalty matter and the taping policy. On December 18, 2006, Charlton submitted a letter of resignation to the President and the Attorney General stating that he would resign effective January 30, 2007.
On December 21, 2006, after Charlton announced his resignation, he sent an e-mail to Mercer notifying him that the media had asked whether Charlton’s resignation was connected to the leak in the Renzi investigation. Mercer told us he could not specifically recall discussing the matter with Charlton, other than advising Charlton to respond to media inquiries about his resignation by making it clear that it was Charlton’s decision to resign.
In this section, we analyze the various reasons that have been proffered for why Charlton was removed as U.S. Attorney.
We found no evidence that Charlton was removed because of his office’s investigation and prosecution of Congressman Renzi, as was alleged in some media reports after the U.S. Attorney removals became public. Sampson and other Department officials denied this claim, and our review of Department e-mails and documents did not find any indication that these investigations had anything to do with Charlton’s removal. Moreover, the case was handled jointly by the Arizona U.S. Attorney’s Office and the Department’s Public Integrity Section beginning in the fall of 2005, and Charlton’s name did not appear on any removal list until September 2006.
Sampson testified that he was not aware of the Renzi investigation when he put Charlton’s name on the removal list in September 2006, and we found no evidence that the investigation played any role in Charlton’s removal. It is also noteworthy that after Charlton’s removal, the Renzi investigation and prosecution continued unabated, resulting in Renzi’s indictment in February 2007. The case is pending.
One of the issues listed in Goodling’s chart as a justification for Charlton’s removal was his alleged resistance to assisting in the prosecution of Obscenity Prosecution Task Force cases. It is unclear whether, and to what extent, the task force leader’s complaints about Charlton played a role in his removal.
Sampson stated that he did not recall placing Charlton on the list for reasons other than Charlton’s actions concerning the tape recording policy and his disagreements with the Department about seeking the death penalty in a particular case. Elston and McNulty also told us they did not recall that Charlton’s alleged failure to assist the Obscenity Prosecution Task Force was a factor in his removal.
However, we found that Ward, the Task Force leader, complained directly to Sampson and indirectly to Elston about Charlton throughout the summer of 2006, shortly before Sampson placed Charlton on the list. Ward also complained to Sampson about Bogden, who was also placed on the September 13, 2006, removal list for the first time. Yet, Charlton and Bogden were not the only U.S. Attorneys about whom Ward complained, and those other U.S. Attorneys were not removed. While it is not clear to what extent Charlton’s alleged failure to assist the Task Force was a factor in his removal, we believe it played a part in Sampson’s decision to put him on the list.
Department officials believed that Charlton had improper discussions with Senator Kyl to seek more resources for the Arizona U.S. Attorney’s Office. During McNulty’s preparation session for his closed briefing for the Senate Judiciary Committee, Sampson mentioned Charlton’s discussion with Kyl about resources as justification for Charlton’s removal. Sampson later testified before the Senate Judiciary Committee that he recalled officials in the Office of the Attorney General thinking that Charlton had directly contacted Senator Kyl in order to obtain more resources for his office. Goodling testified that Charlton’s unauthorized discussions with members of Congress were on her mind when she examined Sampson’s draft list in early 2006. Moreover, Iglesias told us that he was aware that Charlton had been criticized because people in the Department thought he had lobbied his home-state Senator for additional prosecutors, evidencing how strongly and widely held this view was in the Department.
In fact, Charlton did not approach Senator Kyl for additional resources. Rather, after an Arizona Congressman had raised to the Department the need to devote more resources to border prosecutions, Sampson asked Charlton for his views, and Charlton confirmed his need for additional resources. Shortly after Sampson’s conversation with Charlton, Senator Kyl visited Charlton’s office and asked Charlton directly whether there was anything the district needed. Charlton mentioned to Kyl his conversation with Sampson about seeking additional attorney positions for the Arizona U.S. Attorney’s Office. Charlton did not ask Senator Kyl to intervene on his behalf for more resources; he was responding to Kyl’s question. Nevertheless, when Senator Kyl later pressed the Department for more resources for Arizona, Department officials apparently believed that Charlton had acted inappropriately.
We concluded that Sampson’s, Goodling’s, and other Department officials’ erroneous belief that Charlton had acted inappropriately with Senator Kyl was another factor in the decision to remove him. However, we do not believe that this issue was the most significant factor in Charlton’s removal. The incident occurred in 2004, and none of the early removal lists included Charlton’s name. Rather, as discussed next, we believe that the primary reasons for Charlton’s removal were the Department’s view of his actions regarding the tape recording of interrogations and, most important, its view of his persistent efforts to reconsider the Department’s decision to seek the death penalty in a particular case.
Sampson testified that he placed Charlton on the U.S. Attorney removal list because of Charlton’s actions in attempting to implement a tape recording policy in his district and because of his actions in the death penalty case.
With regard to the tape recording of interrogations, we determined that Charlton began exploring this issue in 2004 because he believed the absence of recordings was undermining prosecutions in his district. Charlton first raised the issue with Deputy Attorney General Comey, who established a working group that included Charlton to consider the matter. However, the working group did not reach a consensus. After McNulty became the Deputy Attorney General, the working group became dormant, and Charlton decided to implement a tape recording policy in his district without consulting the Department’s leadership. As Charlton expected, the FBI opposed the policy and complained to McNulty about it.
Shortly before Charlton’s tape recording policy was scheduled to take effect, McNulty spoke with Charlton at a U.S. Attorneys’ conference and told him to rescind it. Charlton refused to do so, telling McNulty he would prefer to resign rather than rescind the policy. According to Charlton, the conversation was interrupted and McNulty asked Principal Deputy Attorney General Mercer to continue discussing the matter with Charlton.
Mercer told us that he persuaded Charlton to design a pilot program for tape recording interrogations rather than submit his resignation. Charlton agreed to develop the pilot program, and McNulty’s Chief of Staff Michael Elston sent an e-mail to Charlton stating that McNulty was very interested in the pilot program and that it would receive expeditious consideration. Elston added that McNulty understood the issue and was interested in energizing the Department’s consideration of it, and that McNulty hoped that Charlton would play a significant role in the Department’s review and the subsequent interagency review process. However, we found no evidence that Charlton’s pilot program was finally approved.
We believe that Charlton should have consulted with Department officials before implementing a policy requiring recording of interrogations in his district, and his unilateral action was unauthorized and inappropriate. However, after the issue was discussed with McNulty and his staff, agreement was reached that Charlton would design a pilot program. Thereafter, Charlton continued to pursue the issue, with apparent support from the Deputy Attorney General’s Office.
McNulty told us that he thought the incident demonstrated poor judgment by Charlton. McNulty said he told Sampson about Charlton’s actions at one of their regular senior leadership meetings, and Sampson said this was one of the reasons for Charlton’s removal. However, McNulty also told congressional investigators that he did not see Charlton’s actions at the time as insubordinate. McNulty told us that if it had been up to him, he would not have chosen to remove Charlton because of his attempt to implement the recording policy. However, McNulty acknowledged that he did not ask Sampson to remove Charlton’s name from the list when McNulty saw it. Mercer also told us that he did not think Charlton’s actions concerning the taping policy should have served as a basis for his removal because Charlton had ultimately “stood down” and agreed to work on the pilot program. Moreover, after the dispute with McNulty about the taping policy, which occurred in February and March 2006, Charlton was not included on the next version of the U.S. Attorney removal list that Sampson forwarded to the White House on April 14, 2006. Nonetheless, we concluded that Charlton’s actions in the matter were a significant factor in Sampson’s decision later to place Charlton on the list, and also in no other Department official’s advocating for his removal from the list.
We believe that Charlton’s action related to the death penalty case during the summer of 2006 was the most significant factor in Charlton’s removal.
As described above, Charlton felt strongly that the death penalty should not be sought in a particular case based on his conclusion that there were deficiencies in the evidence. After the case was examined through the Department’s review process, however, Attorney General Gonzales accepted the recommendation to seek the death penalty and issued a letter authorizing Charlton to notify the court of the Department’s intentions.156
Contemporaneous e-mail records and interviews show that the Deputy Attorney General’s staff and the Attorney General’s staff were upset when they learned that, after the Attorney General’s decision, Charlton’s office did not promptly file the death penalty notice, but instead obtained an enlargement of time from the court in order to request that the Attorney General reconsider the issue. The Deputy Attorney General’s and the Attorney General’s staffs believed that Charlton was insubordinate in not filing the notice, and that his attempts to seek a meeting with Attorney General Gonzales on the issue were an abuse of the review process. We believe that the perception about Charlton’s conduct in this matter, along with complaints about the tape recording issue, his perceived contact with Senator Kyl concerning resources, and his failure to assist the Obscenity Prosecution Task Force all contributed to Sampson’s decision to include Charlton on the September 13, 2006, list of U.S. Attorneys to be removed.
We do not agree that Charlton’s forceful advocacy on the death penalty case constituted insubordination. Charlton did not receive notice of the initial recommendation by the death penalty review committee and was not provided an opportunity to advocate against the committee’s recommendation. Moreover, Charlton was not informed of the outcome until he received notice that the Attorney General had authorized Charlton to seek the death penalty.
When Charlton learned of the decision, he contacted the Attorney General’s Counsel Jeffrey Taylor about an opportunity to be heard on the matter and, with Taylor’s encouragement, he sought reconsideration of the decision. Charlton then obtained an extension of time from the court for filing the death penalty notice. Later, when he was informed that Department staff believed his decision to seek an enlargement of time rather than file the notice was “insubordination,” he immediately sent an e-mail stating that he did not intend to ignore the Attorney General’s decision or exhibit any disrespect, but believed it appropriate to seek reconsideration of the Attorney General’s decision particularly since he had not had an opportunity to discuss the issue with the Deputy Attorney General before the Attorney General made a final decision.
As a result of Charlton’s persistence in seeking reconsideration of the death penalty decision, McNulty spoke with Charlton and later discussed the issue with Attorney General Gonzales, who affirmed his initial decision. Charlton then sought to speak with Gonzales directly, which according to Elston caused Department leaders to further question Charlton’s conduct.
In sum, while Department officials may have concluded that Charlton should have accepted the Department’s decision and complied with it promptly, we do not believe it is insubordinate for a U.S. Attorney to press for an audience with the ultimate decision makers in a matter as important as the decision to seek the death penalty. We believe an issue of this magnitude warrants full and vigorous examination and debate within the Department, and that Charlton’s request to speak directly to the Attorney General was neither insubordinate nor inappropriate.
The chart Goodling prepared for McNulty’s closed briefing also indicates another reason for Charlton’s termination: that “contrary to guidance from Main Justice that it was poor judgment,” Charlton allowed an employee to take leave without pay so that she could become press secretary for a candidate in the 2002 Arizona gubernatorial campaign. However, we found no evidence that this was ever raised as justification for Charlton’s removal. When we asked Charlton about it, he said that EOUSA approved this arrangement but with certain constraints, such as that the employee could not indicate that she worked in the U.S. Attorney’s Office. Charlton stated that he had received a letter from EOUSA that it was permissible for the employee to work on the campaign, but not advisable even with the constraints EOUSA suggested. According to Charlton, the employee therefore resigned from the U.S. Attorney’s Office to work on the campaign. In his congressional interview, Margolis said he was concerned at the time about the employee going on leave without pay status to work on the campaign because he thought it made the Department look too political. However, Margolis said the incident happened early on in Charlton’s tenure, and he said he recalled it only on the eve of McNulty’s preparation session. Margolis pointed out that it could not have been a ground for Charlton’s termination because no one knew about it until the group met to discuss the reasons. We concluded that this was another example of the group including after-the-fact rationalizations that did not in fact play any part in the placement of a U.S. Attorney on the removal list.
We note that other people also heard that Charlton had been criticized for allegedly requesting additional resources from Senator Kyl. For example, as we discuss in Chapter Six, Iglesias told us that he was reluctant to respond when asked in 2006 by Senator Domenici if he needed more resources since he was aware that Charlton had been criticized because people in the Department thought he had lobbied his home-state Senator for additional resources.
The FBI’s policy provides that use of tape recorders in interviews is permissible in limited circumstances on a selective basis after obtaining authorization from the FBI field office’s Special Agent in Charge.
The policy stated that “Cases submitted to the U.S. Attorneys Office for the District of Arizona for prosecution in which an investigative target’s statements has been taken, shall include a recording, by either audio or audio and video, of that statement . . . the recording shall cover the entirety of the interview to include the advice of Miranda warnings and any subsequent questioning.” The policy contained an exception for circumstances “where a taped statement cannot reasonably be obtained . . .”
The Committee is composed of career officials and political appointees from the Criminal Division, the Office of the Deputy Attorney General, the Capital Case Unit, and a rotating group of Assistant United States Attorneys.
According to Department documents describing the crime, the defendant in that case allegedly ordered a large quantity of methamphetamine from his supplier and murdered her when she delivered part of it to the apartment where the defendant lived.
We determined that in early May 2006, coordination between the Deputy Attorney General’s Office and the U.S. Attorneys’ Offices concerning capital cases was assigned to a former Associate Deputy Attorney General who left the Department before the Arizona case came to Deputy Attorney General McNulty for decision. Former Counselor to the Deputy Attorney General Joan Meyer took over the former Associate Deputy Attorney General’s capital case responsibilities in late June-early July 2006.
Charlton noted that during Ashcroft’s tenure as Attorney General he had successfully sought reconsideration of the Department’s recommendation in another death penalty case after discussing the matter with Deputy Attorney General Comey. Comey confirmed to us that after Charlton raised concerns about the case, Comey changed the advice he was planning to give Attorney General Ashcroft, who agreed with the “no seek” recommendation.
Charlton told us he was not sure whether the request to reconsider should go through the Deputy Attorney General’s Office at that point, and he said Fisher was not sure either. He said he contacted Fisher because she oversaw the Death Penalty Review Committee.
When we asked Charlton about this claim, he stated that he was not opposed to the death penalty and that he believed the death penalty should be imposed “where the law required it.” He said the concern in this case was that the evidence was not sufficient to seek capital punishment.
According to the Deputy Chief of the Capital Case Unit, this situation prompted a change in the wording of the Attorney General’s letters to U.S. Attorneys in death penalty cases, which now states, “You are authorized and directed to seek the death penalty.”
Fisher noted that U.S. Attorneys do not report “in any way, shape, or form” to the Criminal Division, but rather to the Deputy Attorney General. According to Fisher, the attitude of the U.S. Attorneys’ Offices towards the Task Force was mixed. According to Fisher, several districts were interested in pursuing cases but lacked the resources to do so. Fisher added that the Task Force was established as a small team of two to four attorneys who worked closely with the FBI to identify potential cases for referral to U.S. Attorneys, but the Task Force itself was not designed to prosecute cases.
Sampson said failure to participate in the obscenity prosecutions may have been a factor in the decision to place Bogden on the list, although he said he could not recall if it was a factor in Bogden’s removal.
It is important to note that we did not examine the merits of Charlton’s position about the strength of the evidence in this case, nor did we examine in detail the Department’s death penalty review process in this matter. Such an examination is beyond the scope of our investigation, which focused on the reasons for Charlton’s dismissal.