[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


 
  RESTORING CHECKS AND BALANCES IN THE CONFIRMATION PROCESS OF UNITED 
                            STATES ATTORNEYS

=======================================================================

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                   COMMERCIAL AND ADMINISTRATIVE LAW

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                                   ON

                                H.R. 580

                               __________

                             MARCH 6, 2007

                               __________

                           Serial No. 110-22

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov

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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. SCOTT, Virginia            HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
MAXINE WATERS, California            DANIEL E. LUNGREN, California
MARTIN T. MEEHAN, Massachusetts      CHRIS CANNON, Utah
WILLIAM D. DELAHUNT, Massachusetts   RIC KELLER, Florida
ROBERT WEXLER, Florida               DARRELL ISSA, California
LINDA T. SANCHEZ, California         MIKE PENCE, Indiana
STEVE COHEN, Tennessee               J. RANDY FORBES, Virginia
HANK JOHNSON, Georgia                STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois          TOM FEENEY, Florida
BRAD SHERMAN, California             TRENT FRANKS, Arizona
ANTHONY D. WEINER, New York          LOUIE GOHMERT, Texas
ADAM B. SCHIFF, California           JIM JORDAN, Ohio
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
[Vacant]

            Perry Apelbaum, Staff Director and Chief Counsel
                 Joseph Gibson, Minority Chief Counsel
                                 ------                                

           Subcommittee on Commercial and Administrative Law

                LINDA T. SANCHEZ, California, Chairwoman

JOHN CONYERS, Jr., Michigan          CHRIS CANNON, Utah
HANK JOHNSON, Georgia                JIM JORDAN, Ohio
ZOE LOFGREN, California              RIC KELLER, Florida
WILLIAM D. DELAHUNT, Massachusetts   TOM FEENEY, Florida
MELVIN L. WATT, North Carolina       TRENT FRANKS, Arizona
STEVE COHEN, Tennessee

                     Michone Johnson, Chief Counsel

                    Daniel Flores, Minority Counsel







                            C O N T E N T S

                              ----------                              

                             MARCH 6, 2007

                              TEXT OF BILL

                                                                   Page
H.R. 580, To amend chapter 35 of title 28, United States Code, to 
  provide for a 120-day limit to the term of a United States 
  attorney appointed on an interim basis by the Attorney General, 
  and for other purposes.........................................     3

                           OPENING STATEMENT

The Honorable Linda T. Sanchez, a Representative in Congress from 
  the State of California, and Chairwoman, Subcommittee on 
  Commercial and Administrative Law..............................     1
The Honorable Chris Cannon, a Representative in Congress from the 
  State of Utah, and Ranking Member, Subcommittee on Commercial 
  and Administrative Law.........................................     5
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Member, Subcommittee on 
  Commercial and Administrative Law..............................     7

                               WITNESSES

Mr. William E. Moschella, Principal Associate Deputy Attorney 
  General, United States Department of Justice
  Oral Testimony.................................................    10
  Prepared Statement.............................................    12
Ms. Carol C. Lam, former United States Attorney for the Southern 
  District of California
  Oral Testimony.................................................    41
  Joint Prepared Statement.......................................    47
Mr. Daniel Bogden, former United States Attorney for the District 
  of Nevada
  Oral Testimony.................................................    43
  Joint Prepared Statement.......................................    47
Mr. David C. Iglesias, former United States Attorney for the 
  District of New Mexico
  Oral Testimony.................................................    44
  Joint Prepared Statement.......................................    47
Mr. Paul K. Charlton, former United States Attorney for the 
  District of Arizona
  Oral Testimony.................................................    44
  Joint Prepared Statement.......................................    47
Mr. H.E. (Bud) Cummins, former United States Attorney for the 
  Eastern District of Arkansas
  Oral Testimony.................................................    45
  Joint Prepared Statement.......................................    47
Mr. John McKay, former United States Attorney for the Western 
  District of Washington
  Oral Testimony.................................................    46
  Joint Prepared Statement.......................................    47
The Honorable Darrell E. Issa, a Representative in Congress from 
  the State of California
  Oral Testimony.................................................    84
  Prepared Statement.............................................   105
The Honorable Asa Hutchinson, a former Representative in Congress 
  from the State of Arkansas
  Oral Testimony.................................................   108
  Prepared Statement.............................................   110
Mr. John A. Smietanka, former United States Attorney for the 
  Western District of Michigan
  Oral Testimony.................................................   111
  Prepared Statement.............................................   112
Mr. Atlee W. Wampler, III, President, The National Association of 
  Former United States Attorneys
  Oral Testimony.................................................   117
  Prepared Statement.............................................   119
Mr. George J. Terwilliger, III, former Deputy Attorney General of 
  the United States
  Oral Testimony.................................................   124
  Prepared Statement.............................................   126
Mr. T.J. Halstead, Legislative Attorney, American Law Division, 
  Congressional Research Service
  Oral Testimony.................................................   131
  Prepared Statement.............................................   133

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Material submitted by the Honorable Zoe Lofgren, a Representative 
  in Congress from the State of California, and Member, 
  Subcommittee on Commercial and Administrative Law..............    61
Material submitted by the Honorable Darrell E. Issa, a 
  Representative in Congress from the State of California........    86

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Steve Cohen, a Representative 
  in Congress from the State of Tennessee, and Member, 
  Subcommittee on Commercial and Administrative Law..............   153
Letter from Richard A. Hertling, Acting Assistant Attorney 
  General, providing personnel data on U.S. Attorneys............   154
E-mail from H.E. Cummins to five other U.S. Attorneys regarding a 
  phone call with Mike Elston, submitted by the Honorable Linda 
  Sanchez, a Representative in Congress from the State of 
  California, and Chairwoman, Subcommittee on Commercial and 
  Administrative Law.............................................   173
Copy of Medal of Merit presented to David C. Iglesias, submitted 
  by Mr. David C. Iglesias, former United States Attorney for the 
  District of New Mexico.........................................   174
Letter from Michael A. Battle to David C. Iglesias, submitted by 
  Mr. David C. Iglesias, former United States Attorney for the 
  District of New Mexico.........................................   176
Letter submitted by Richard L. Delonis, President, National 
  Association of Assistant United States Attorneys...............   177
Answers to Post-Hearing Questions from John A. Smietanka, former 
  United States Attorney for the Western District of Michigan....   179
Answers to Post-Hearing Questions from George J. Terwilliger, 
  III, former Deputy Attorney General of the United States.......   189
Answer to Post-Hearing Questions from Atlee W. Wampler, III, 
  President, National Association of Former United States 
  Attorneys......................................................   198
Answers to Post-Hearing Questions from Daniel Bogden, former 
  United States Attorney for the District of Nevada..............   213
Letter from Christopher K. Barnes to Daniel Bogden transmitting 
  the 2003 E.A.R. report, submitted by Daniel Bogden, former 
  United States Attorney for the District of Nevada..............   228
Letter from Mary Beth Buchanan to Daniel Bogden, submitted by 
  Daniel Bogden, former United States Attorney for the District 
  of Nevada......................................................   236
Letter from Michael A. Battle to Daniel Bogden, submitted by 
  Daniel Bogden, former United States Attorney for the District 
  of Nevada......................................................   238
Answers to Post-Hearing Questions from Carol C. Lam, former 
  United States Attorney for the Southern District of California.   239
Letter from Adele J. Fasano, Director, Field Operations, U.S. 
  Customs and Border Protection, submitted by Carol C. Lam, 
  former United States Attorney for the Southern District of 
  California.....................................................   252
Answers to Post-Hearing Questions from David C. Iglesias, former 
  United States Attorney for the District of New Mexico..........   255
Answers to Post-Hearing Questions from H.E. (Bud) Cummins, former 
  United States Attorney for the Eastern District of Arkansas....   257
Answers to Post-Hearing Questions from Paul Charlton, former 
  United States Attorney for the District of Arizona.............   268
E-mails from Justice Department officials regarding Paul 
  Charlton, submitted by Paul Charlton, former United States 
  Attorney for the District of Arizona...........................   271
Letter from Michael C. Nicley, former Chief Patrol Agent, U.S. 
  Border Patrol, submitted by Paul Charlton, former United States 
  Attorney for the District of Arizona...........................   274
Answers to Post-Hearing Questions from John McKay, former United 
  States Attorney for the Western District of Washington.........   275


  RESTORING CHECKS AND BALANCES IN THE CONFIRMATION PROCESS OF UNITED 
                            STATES ATTORNEYS

                              ----------                              


                         TUESDAY, MARCH 6, 2007

                  House of Representatives,
                         Subcommittee on Commercial
                            and Administrative Law,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:06 p.m., in 
Room 2141, Rayburn House Office Building, the Honorable Linda 
Sanchez (Chairwoman of the Subcommittee) presiding.
    Ms. Sanchez. This hearing of the Committee on the 
Judiciary, Subcommittee on Commercial and Administrative Law, 
will now come to order.
    I will now recognize myself for a short statement.
    In the wake of the Watergate scandal, a constitutional 
crisis that demonstrated the lengths to which our system of 
justice can be manipulated to achieve a political agenda, our 
Nation made the decision that our law enforcement system should 
be free from the influence of politics. We decided that 
ideological partisanship has no place in the dispatch of 
justice.
    Recently, we have seen troubling signs that this line is 
again being crossed. The question we are here to answer today 
is: Are important decisions about our justice system being made 
for political reasons?
    We recognize that U.S. attorneys serve at the pleasure of 
the President. However, in the past few months it appears that 
the Bush administration has exploited the change in interim 
appointment limits of U.S. attorneys by purging high-performing 
U.S. attorneys and replacing them with political cronies and 
inexperienced lawyers.
    This purge is one more example of the Administration's 
concerted effort to promote partisan politics over sound 
management. Time and time again, we have seen this President 
undermine the legal foundations of our constitutional system of 
Government, particularly by seeking political advantage in 
areas that have traditionally transcended politics.
    Congress must determine if, once again, competency in 
upholding the law is being sacrificed for political ideology. 
For example, Arkansas U.S. Attorney Bud Cummins was replaced 
with Timothy Griffin at the insistence of former White House 
counsel Harriet Miers. Mr. Griffin is a long-time Republican 
operative who has a thin legal record but substantial 
connections to the RNC and Karl Rove. I hope to learn today why 
the Administration replaced an experienced and highly competent 
U.S. attorney with a partisan loyalist.
    We also need to determine if the Administration is making a 
systematic effort to curtail ongoing political corruption 
investigations. Former San Diego U.S. Attorney Carol Lam led 
the investigation of former California Representative Randy 
``Duke'' Cunningham and his coconspirators, discovered 
pervasive and widespread political corruption and secured a 
guilty plea from Mr. Cunningham. Despite announcements of two 
related indictments just days before her departure, she was 
replaced with an interim appointee with almost no criminal law 
experience.
    We must investigate whether U.S. attorneys are being 
retaliated against for their role in investigations of 
corruption. Last week we learned that shortly before the 
November 2006 elections, two congressional Republican Members 
contacted former New Mexico Attorney David Iglesias regarding a 
corruption probe of a local Democratic elected official. I am 
deeply concerned that an ethical violation has occurred here.
    I am also concerned that John McKay, a former Seattle U.S. 
attorney, may have been fired to appease Washington-state 
Republicans who were angry over his failure to convene a 
Federal grand jury to investigation allegations of voter fraud 
in the 2004 governor's race. And I have similar concerns that 
Paul Charlton, former U.S. attorney for Arizona, and Daniel 
Bogden, former U.S. attorney for Nevada, faced retribution for 
their roles in political corruption investigations.
    Specifically, it has been alleged that Paul Charlton was 
dismissed because he was investigating charges involving land 
deals and influence peddling by sitting Republican congressmen, 
and there is speculation that Daniel Bogden was ousted for 
investigating Governor Jim Gibbons' receipt of unreported gifts 
and payments in exchange for his help as a Member of the House 
Intelligence and Armed Services Committees.
    We have also convened this hearing to consider H.R. 580, 
legislation authored by my friend and colleague from 
California, Representative Howard Berman. This legislation 
would restore the necessary legislative response to restore 
checks and balances in the U.S. attorney appointment process. 
The Berman bill would reverse a new provision in the USA 
PATRIOT Act, allowing the attorney general to indefinitely 
appoint Federal prosecutors through the end of the Bush 
administration without Senate confirmation.
    [The bill, H.R. 580, follows:]
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Ms. Sanchez. To help shed some light on these issues, we 
have with us today a truly notable witness panel. We are 
pleased to have the six recently replaced former U.S. 
attorneys, William Moschella, principal associate deputy 
attorney general, Representative Darrell Issa, former 
Representative Asa Hutchinson and former Deputy Attorney 
General George Terwilliger. We also have two additional former 
U.S. attorneys, including the president of the National 
Association of Former United States Attorneys.
    Finally, we are joined by an attorney from the 
Congressional Research Service who will discuss the CRS report 
that concludes that these mass firings in the middle of an 
Administration are unprecedented in recent history. 
Accordingly, I very much look forward to hearing the testimony.
    I would now like to recognize my colleague, Mr. Cannon, the 
distinguished Ranking Member of my Subcommittee, for his 
opening remarks.
    Mr. Cannon. Thank you, Madam Chairman.
    This hearing is frankly two hearings rolled into one. The 
first hearing, the one the majority doesn't want to have, is 
entitled H.R. 580, ``Restoring Checks and Balances in the 
Confirmation Process of U.S. Attorneys.'' If the majority were 
serious about this hearing, we would be receiving testimony 
about whether it is wise to return to a policy that allows 
judges to make interim appointments of prosecutors that 
practice before them.
    We could ask whether such practices raise ethical, 
constitutional or prudential concerns. We could discuss past 
instances when judges either refused to exercise their 
authority to appoint interim U.S. attorneys or abused the 
authority by appointing someone that was not qualified to serve 
in that position.
    But the majority doesn't want to have that hearing. 
Instead, they want a show trial of recently-dismissed U.S. 
attorneys claiming disingenuously that the dismissals have 
something to do with the first hearing.
    U.S. attorneys serve at the President's pleasure, now and 
always. The President can dismiss a U.S. attorney for any 
reason or for no reason at all. How do we know this? President 
Clinton dismissed 93 U.S. attorneys in his first months in 
office, a purge that makes the dismissal of 8 U.S. attorneys 
look like a rounding error. But were those dismissals 
inappropriate? No. Under article 2 of the Constitution, it is 
the President's responsibility to see that the laws are 
faithfully executed. U.S. attorneys are at the heart of his 
leadership team, making sure the laws are enforced, consistent 
with his policies and priorities in each judicial district in 
the country. The President is entitled to have who he thinks 
will best do that job at all times. He deserves it and the 
Nation deserves it.
    Second, the President's explanations for the dismissals at 
issue today, though not required, are reasonable. The 
Department of Justice has explained to this Committee the 
reasons for these dismissals. In every case, the President had 
a legitimate reason to believe that an infusion of fresh 
leadership would serve the country.
    Each of these U.S. attorneys had served the full 4-year 
term to which they are appointed. Some had served more. Some of 
them had, in one area or another, for one reason or another, 
parted paths with the President in implementing one or more of 
his enforcement priorities. Others had presented other issues 
that prompted the President to want to try someone new. And in 
at least one case, the President just wanted to provide another 
qualified individual the opportunity to serve as a U.S. 
attorney.
    These U.S. attorneys are entitled to their opinions, and 
those whose practices or positions differed from national 
policy may have had their reasons. But they were obliged to 
implement the President's priorities fully and to carry out 
their duties as the President saw fit. They were not entitled 
to their jobs. It is the President's responsibility to see that 
the laws are enforced. If he determines that he needs new 
leadership to fully achieve his priorities, he has a 
responsibility to obtain it.
    Again, U.S. attorneys serve at the President's pleasure, 
not at their own. These U.S. attorneys do not debate this. Mr. 
Cummins has stated that the President can remove a U.S. 
attorney for any reason or no reason or even an idiotic reason. 
I hope that wasn't in reference to the President, but we have 
had lots of Presidents who have released lots of U.S. 
attorneys.
    Mr. Iglesias has been quoted in the press as saying that 
even if he was ``moved out strictly for political reasons, I am 
okay with that.'' Speaking for the group as a whole, Mr. 
Iglesias has said that ``we are not disgruntled employees.'' 
They recognize the President's prerogatives, and so should we.
    Third, the record backs the President up. The Department of 
Justice has shown in briefings and other communications with 
the Congress that the President had legitimate reasons to opt 
for new leadership in these districts. Again, this is not to 
say that the sitting U.S. attorneys were all necessarily doing 
bad jobs, or any of them were doing bad jobs, but that the 
President has backed up his reasonable explanations with 
evidence for his belief that he could do better in achieving 
his priorities and that it was time for a change. Not a shred 
of hard evidence brought before me or this Subcommittee has 
done anything to disprove that.
    Loose accusations of political retaliation and favoritism 
have been recklessly bandied about without substantiation. Not 
a single public corruption prosecution or investigation has 
been slowed or halted because of these personnel decisions. On 
the contrary, ongoing prosecutions and investigations in these 
districts have moved forward regardless of the transition of 
leadership. It is simply a commitment to bring more new cases 
in the President's priority enforcement areas that has prompted 
the department to seek a change. This is laudable, it is 
appropriate and it should be respected.
    What has been the response of the majority? To ignore the 
President's prerogatives, to ignore his sound explanations to 
turn these former public servants into political footballs and 
to run after the phantom notion that the President must have 
engaged in retaliatory hardball politics. The conclusion is 
clear. The President was entitled to make these changes in his 
leadership team. Even if we were to disagree with his reasons, 
he was entitled to make them. And in any event, his reasons 
were entirely reasonable. Accusations that these dismissals 
were motivated by the politics of retribution are false and do 
a disservice to the public.
    Likewise, accusations that these dismissals were made to 
clear the way, to avoid Senate confirmation of U.S. attorneys 
are far from the mark. The only political maneuvering occurring 
here is that the majority, which is willfully disregarding the 
department's reasonable explanations to stir up a groundless 
partisan controversy and attempt to reverse some legislation 
that benefits the American people.
    The Republican Members of this Subcommittee encourage the 
majority to avoid the temptation of political headlines and 
instead work to address the real problems the country needs to 
face. We stand ready, willing and able to work to achieve 
bipartisan results that will benefit the American people. It is 
time to pick up the work and stop loosing precious time on 
false issues and refusals to believe the truth.
    And I yield back, Madam Chairman.
    Ms. Sanchez. I thank the gentleman for his statement.
    I would now like to recognize Mr. Conyers, a distinguished 
Member of the Subcommittee and the Chairman of the Committee on 
the Judiciary.
    Mr. Conyers. Thank you, Madam Chairman.
    I am happy to see all of us here today, including the very 
distinguished witnesses that are going to soon occupy the 
witness table.
    I want our friend, the Ranking Member of the Subcommittee, 
Chris Cannon, to understand that this is not immaterial or 
irrelevant activities. It has been in the headlines, on TV, in 
the newspapers. The country is flooded with this. It has even 
been in the Senate Judiciary Committee.
    Look, this is not----
    Mr. Cannon. Would the gentleman yield?
    Mr. Conyers. This is not unimportant activity. And, yes, I 
will yield.
    Mr. Cannon. The fact that the press needs something to make 
a big issue out of does not mean it should drive our 
deliberations and our processes because it is easy to report 
wild and vast allegations and yet as I think you will see in 
this hearing, as we saw certainly in the Senate hearing, the 
substance is modest but it will still make the headlines.
    Mr. Conyers. I accept and receive the gentleman's 
admonitions.
    Now I want him to rest more comfortably in his chair, 
because we are here to hear the measure that is before us. H.R. 
580, introduced by the gentleman from California, Mr. Berman 
and myself, and we have afforded you three witnesses for that 
purpose. I presume that you chose the witnesses or at least had 
something to do with it.
    So don't think that we are not here for the legislative 
business which we have published and I hope that these hearings 
can address several important issues.
    The first is, what is the impact of these unprecedented 
series of forced resignations have had on our criminal justice 
system. The 94 United States attorneys' offices are the heart 
and soul of our Federal law enforcement system and in many 
respects the crown jewel of the Justice Department.
    The lawyers who work in these offices are the very best and 
brightest of our lawyers. It is absolutely critical that the 
U.S. attorneys who supervise them, whether chosen by Democrats 
or Republicans, it doesn't matter, be of unquestionable 
integrity and independence.
    I have to question what sort of impact these firings have 
not only on the officers involved but every law enforcement 
official in the Nation. How does this impact the continuity of 
our ongoing investigations? How does it impact the enforcement 
of our immigration laws, our gun laws, our drug laws, not to 
mention our public corruption laws? Can we really afford on-
the-job training of law enforcement novices when the lives and 
safety of American citizens are so clearly at stake?
    What can we learn about the real reasons these prosecutors 
were fired? I am troubled when the justifications put forth for 
these firings change by the day in reaction to the latest 
revelation. What started out as performance-related firings 
quickly switched to failure to follow policy priorities. Yet as 
of today, nearly 3 months after these discharges, we have yet 
to learn of any documented evidence identifying any specific 
concerns that were raised with any of these prosecutors before 
they were discharged. That is no way to run an office, let 
alone a legal office responsible for life and death decisions.
    What do these mass firings and the way that they were 
handled say about our present Administration? Good and honest 
prosecutors appear to have had their reputations unjustly 
besmirched and they may have been threatened for telling the 
truth. They have been courageous to come before us and they 
have said that they were being fired for poor performance when 
the exact opposite seems to be true.
    Ladies and gentlemen, for the purposes of honoring the 5-
minute rule, I will submit the rest of my statement.
    And I thank the Subcommittee Chairwoman.
    Ms. Sanchez. I thank the gentleman for his statement.
    And without objection, other Members' opening statements 
will be included in the record.
    Without objection, the Chair will be authorized to declare 
a recess of the hearing.
    Before we call Mr. Moschella to the table to testify, I 
would ask the former U.S. attorneys we have subpoenaed to come 
to the table briefly.
    I want you to know that we are going to ask Mr. Moschella 
to tell us what he knows about the reasons for your 
terminations, including what may have been said in various 
conversations and what may have been written in various 
reports. Mr. Moschella may be hesitant to discuss some of this 
information based on privacy or confidentiality interests 
ascribed to each of you.
    On Wednesday, February 28, and Monday, March 5, I was 
briefed by the department concerning the alleged performance-
related reasons for your termination. Today we are going to ask 
Mr. Moschella if he would repeat those reasons for us. However, 
for him to do so today, you would need to agree to waive any 
privacy or confidentiality interests to the statements made to 
me on February 28 and March 5 in that briefing.
    Are you willing to give such a limited waiver of your 
privacy and confidentiality interests?
    And I also want to emphasize that this is totally 
voluntary. If any of you have reservations, we will respect 
that. We would not, of course, ask Mr. Moschella to improperly 
disclose grand jury or other investigative information of a 
sensitive nature in open session. And any of you who wish will 
have an opportunity to respond to Mr. Moschella.
    Do we have your permission to have a limited waiver of 
those rights so that Mr. Moschella can repeat statements that 
were made in briefings to this Subcommittee Chair?
    Let the Chair indicate that all of the witnesses have 
assented by head nodding and verbal yeses.
    Thank you. We will have you up to the table to testify in 
just a little while.
    I am now pleased to introduce the witness on our first 
panel for today's hearing. William Moschella is the principal 
associate deputy attorney general for the Department of 
Justice. Prior to that appointment, he served as assistant 
attorney general for DOJ's office of legislative affairs. He 
was also chief legislative counsel and parliamentarian to the 
House Committee on the Judiciary.
    Thank you for your willingness to participate at today's 
hearing.
    Mr. Moschella, given the gravity of the issues we are 
discussing today and your role in these hearings and so there 
is no misunderstanding, we would appreciate it if you would 
take an oath before you begin your testimony. Do you object to 
doing so?
    Please stand and raise your right hand.
    [Witness sworn.]
    Without objection, your written statement will be placed 
into the record and we would ask that you limit your oral 
remarks to 5 minutes. You will note that we have a lighting 
system that starts with a green light. At 4 minutes, it turns 
yellow, and then red at 5 minutes.
    After the witness has presented his testimony, Subcommittee 
Members will be permitted to ask one round of questions subject 
to the 5-minute limit.
    Thank you, Mr. Moschella. Will you now proceed with your 
testimony?
    Mr. Cannon. Madam Chairman, before Mr. Moschella proceeds, 
may I just clarify the scope of the commitment here?
    My understanding is that Mr. Moschella, under questioning, 
can answer questions about the office and activity within the 
office as it relates to performance of the U.S. attorneys, but 
not about cases if any were--did you discuss any cases with the 
Congresswoman at all?
    How careful is Mr. Moschella going to have to be in 
answering?
    Ms. Sanchez. He may not discuss any pending cases.
    Mr. Cannon. Did he discuss pending cases with you in that 
meeting?
    Ms. Sanchez. I don't believe that he did.
    Mr. Cannon. So, what he is going to be talking about under 
your questioning, apparently, is going to be statements he made 
to you in a meeting about the qualifications, the activities 
and the performance of these U.S. attorneys?
    Ms. Sanchez. Correct. It will be statements that were made 
in the two briefings of Members of this Subcommittee as to the 
so-called performance-related excuses or reasons that they gave 
for requesting the resignation of the U.S. attorneys who will 
be testifying here.
    Mr. Cannon. Thank you.

 TESTIMONY OF WILLIAM E. MOSCHELLA, PRINCIPAL ASSOCIATE DEPUTY 
     ATTORNEY GENERAL, UNITED STATES DEPARTMENT OF JUSTICE

    Mr. Moschella. Madam Chairman, just before I begin my 
opening testimony, I just want to make clear, I am not sure 
about the previous exercise that we just went through. The 
Privacy Act has a specific exception in it with regard to a 
presentation before the Congress. And so to the extent that 
that was meant to be a Privacy Act labor, it is unnecessary in 
this context.
    Ms. Sanchez. It doesn't hurt to have a backup plan, Mr. 
Moschella.
    Mr. Moschella. Madam Chairman, Mr. Cannon, Members of the 
Subcommittee, I appreciate the opportunity to testify today.
    Let me begin by stating clearly that the Department of 
Justice appreciates the public service that was rendered by the 
seven United States attorneys who were asked to resign last 
December. Each is a talented lawyer who served as U.S. attorney 
for more than 4 years and we have no doubt they will achieve 
success in their future endeavors, just like the 40 or so U.S. 
attorneys who have resigned for various reasons over the last 6 
years.
    Let me also stress that one of the attorney general's most 
important responsibilities is to manage the Department of 
Justice. Part of managing the department is ensuring that the 
Administration's priorities and policies are carried out 
consistently and uniformly. Individuals who have the high 
privilege of serving as presidential appointees have an 
obligation to carry out the Administration's priorities and 
policies.
    United States attorneys in the field as well as assistant 
attorneys general here in Washington are duty-bound not to make 
prosecutorial decisions but also to implement and further the 
Administration and department's priority and policy decisions. 
In carrying out these responsibilities, they serve at the 
pleasure of the President and report to the attorney general. 
If a judgment is made that they are not executing their 
responsibilities in a manner that furthers the management and 
policy goals of departmental leadership, then it is appropriate 
that they be asked to resign so that they can be replaced by 
other individuals who will.
    To be clear, it was for reasons related to policy, 
priorities and management, what has been referred to broadly as 
performance-related reasons, that these United States attorneys 
were asked to resign.
    I want to emphasize that the department, out of respect for 
the United States attorneys at issue, would have preferred not 
to talk about those reasons, but disclosures in the press and 
requests for information from Congress altered those best laid 
plans. In hindsight, perhaps this situation could have been 
handled better. These U.S. attorneys could have been informed 
at the time they were asked to resign about the reasons for the 
decisions.
    Unfortunately, our failure to provide reasons to these 
individual United States attorneys has only served to fuel wild 
and inaccurate speculation about our motives. And that is 
unfortunate, because faith and competence in our justice system 
is more important than any one individual. That said, the 
department stands by the decisions. It is clear that after 
closed-door briefings with House and Senate Members and staff, 
some agree with the reasons that form the basis for our 
decisions and some disagree. Such is the nature of subjective 
judgments.
    Just because you might disagree with a decision does not 
mean it was made for improper political reasons. There were 
appropriate reasons for each decision.
    One troubling allegation is that certain of these United 
States attorneys were asked to resign because of actions they 
took or didn't take relating to public corruption cases. These 
charges are dangerous, baseless and irresponsible. This 
Administration has never removed a United States attorney to 
retaliate against them or interfere with or inappropriately 
influence a public corruption case. Not once.
    The attorney general and the director of the FBI have made 
public corruption a high priority. Integrity in government and 
trust in our public officials and institutions is paramount. 
Without question, the department's record is one of great 
accomplishment that is unmatched in recent memory. The 
department has not pulled any punches or shown any political 
favoritism. Public corruption investigations are neither rushed 
nor delayed for improper purposes. Some, particularly in the 
other body, claim that the department's reasons for asking 
these United States attorneys to resign was to make way for 
pre-selected Republican lawyers to be appointed and circumvent 
Senate confirmation. The facts, however, prove otherwise.
    After the seven United States attorneys were asked to 
resign last December, the Administration immediately began 
consulting with home State Senators and other home State 
political leaders about possible candidates for nomination. 
Indeed, the facts are that since March 9, 2006, the date the 
attorney general's new appointment authority went into effect, 
the Administration has nominated 16 individuals to serve as 
United States attorney and 12 have been confirmed.
    Furthermore, 18 vacancies have arisen since March 9, 2006. 
Of those 18 vacancies, the Administration: one, has nominated 
candidates for six of them, and of those six, the Senate has 
confirmed three; two, has interviewed candidates for eight of 
them; three, is working to identify candidates for the 
remaining four.
    Ms. Sanchez. Mr. Moschella, your time has expired. If you 
could just briefly conclude.
    Mr. Moschella. Let me repeat what has been said many times 
before and what the record reflects. The Administration is 
committed to having a Senate-confirmed United States attorney 
in every single Federal district.
    In conclusion, let me make three points. First, although 
the department stands by the decision to ask these United 
States attorneys to resign, it would have been much better to 
have addressed the relevant issues up front with each of them. 
Second, the department has not asked anyone to resign to 
influence any public corruption case and would never do so. 
Third, the Administration at no time intended to circumvent the 
confirmation process.
    I would be happy to take your questions.
    [The prepared statement of Mr. Moschella follows:]
                  Prepared Statement of Will Moschella
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Ms. Sanchez. Thank you for your testimony.
    I would now like to recognize myself for the first round of 
questioning.
    Mr. Moschella, we have had now two briefings regarding the 
purported reasons for the requested resignations of the six 
U.S. attorneys that are behind you.
    Could you please summarize for the Subcommittee the 
particular reasons with respect to each individual, Ms. Lam, 
Mr. McKay, Mr. Cummins, Mr. Bogden, Mr. Iglesias and Mr. 
Charlton, why they were asked to resign?
    Mr. Moschella. I will, and I will try to do so quickly.
    Ms. Sanchez. You have about 4 minutes to do so.
    Mr. Moschella. I notice that two individuals are not here, 
and those individuals would have been in the management 
category----
    Ms. Sanchez. We are interested solely in the individuals 
sitting behind you.
    Mr. Moschella [continuing]. Just so the record is clear.
    With regard to Carol Lam, a distinguished prosecutor and 
someone who did fulfill more than her 4-year term, there were 
two basic issues. It has been a priority of the Department of 
Justice and this Administration, both in violent crime and in 
immigration. In violent crime, Project Safe Neighborhoods, 
which is our landmark anti-gun program, has been talked about 
by the President, by the attorney general, in conferences, at 
U.S. attorneys meetings. And quite frankly, her gun prosecution 
numbers are at the bottom of the list. She only beat out Guam 
and the Virgin Islands in that area.
    On immigration, it has been reported in the press after our 
briefings with the Senate Judiciary Committee that her numbers 
for a border district just didn't stack up. The President of 
the United States, this Administration, has made immigration 
reform a priority and those on the border, in these border 
districts, have a responsibility there and to the rest of the 
country to vigorously enforce those laws.
    Ms. Sanchez. Mr. McKay?
    Mr. Moschella. With regard to Mr. McKay, the department 
really had policy differences and were concerned with the 
manner in which he went about advocating particular policies 
and we will get into the details of information sharing, but he 
spent quite a considerable amount of time advocating for a 
particular system, basically advocating that the Justice 
Department give our good housekeeping seal of approval for this 
particular system, but we decided, because various 
jurisdictions around the country have different systems, that 
we would plug our pipe--one DOJ pipe in which we share with 
State and local governments--to those systems.
    Ms. Sanchez. Mr. Cummins?
    Mr. Moschella. I think Mr. Cummins' situation has been 
well-documented. His was not for performance-based reasons. I 
will just refer to, in the interest of time, the deputy 
attorney general's testimony a couple of weeks ago in the 
Senate.
    Ms. Sanchez. We would like to get the information on the 
record here, if you don't mind.
    Mr. Moschella. It may take a little bit longer than the 
minute and 35 seconds that I have, but Mr. Cummins was--the 
Administration asked Mr. Cummins to move on only after we knew 
that--you know, he had indicated he was not going to serve out 
the remainder of his term--a qualified individual who had 
served both as a prosecutor at main Justice and in his 
district, was coming back from Iraq after serving his country 
for a year in Mosul, not in the green zone, and prosecuting 
over 40 JAG-related cases there, was interested in a U.S. 
attorney position.
    Mr. Griffin was considered for the other district in 
Arkansas earlier in his tenure, was interviewed. He had gone 
all the way through the process and likely would have been the 
candidate. He would have but for the fact that he took another 
position, he probably would have been the U.S. attorney in that 
other district. So it was clear that he was interested in a 
position and given the knowledge that Mr. Cummins was not 
likely to serve out the remainder of his term, because there 
had been at least one press report that I am aware of where 
that was indicated.
    Ms. Sanchez. Okay. Mr. Bogden? I am sorry to hurry you 
along, but we have limited time here. If you could please get 
through the final three as briefly as you can. Mr. Bogden?
    Mr. Moschella. Sure.
    The general sense in the department about Mr. Bogden is 
that given the importance of the district in Las Vegas, there 
was no particular deficiency. There was an interest in seeing 
new energy and renewed vigor in that office, really taking it 
to the next level.
    It is important to note that the reason why this process 
was undertaken was really to ensure that in the last 2 years of 
this Administration we were fielding the best team possible, 
and that is what the attorney general was doing when we--as we 
reviewed these.
    Ms. Sanchez. Okay. Mr. Iglesias?
    Mr. Cannon. Pardon me, Madam Chairman. We are going to have 
a large number of witnesses and many people here who want to 
participate. I don't mean to be a skunk to the party, but if we 
do the 5-minute rule, we are probably going to get through more 
quickly.
    Ms. Sanchez. Okay.
    Mr. Watt. Madam Chair, I would be delighted to yield the 
gentlelady my time for questioning and pass, because I think we 
need this information in the record.
    Ms. Sanchez. I appreciate that, Mr. Watt. I understand 
that.
    Mr. Watt. I yield the gentlelady my 5 minutes.
    Ms. Sanchez. Okay. Thank you, Mr. Watt.
    Mr. Moschella, please, as briefly as you can, Mr. Iglesias?
    Mr. Moschella. Sure. And it is difficult to do it in such a 
short time frame. As you know, our briefing took about 40 or 50 
minutes.
    Ms. Sanchez. Right. I think you can distill that, though, 
to the heart of the matter fairly quickly.
    Mr. Moschella. I will.
    Ms. Sanchez. It is usually a one or two sentence reason.
    Mr. Moschella. There was a general sense with regard to 
this district, again, Mr. Iglesias had served, as they all did, 
the entire 4-year term, that the district was in need of 
greater leadership. We have had a discussion about the EARS 
Report, and the EARS Report does pick up some management issues 
and Mr. Iglesias had delegated to his first assistant the 
overall running of the office. And, quite frankly, U.S. 
attorneys are hired to run the office, not their first 
assistants.
    Ms. Sanchez. Okay. And Mr. Charlton?
    Mr. Moschella. I would put Mr. Charlton more in the policy 
category. Mr. Charlton had undertaken in his district a policy 
with regard to the taping of FBI interviews and set a policy in 
place there that had national ramifications. It did not go 
through the whole policy process. It has implications for 
prosecutions, for law enforcement agencies, the bureau's sister 
agencies at ATF, DEA, Marshals, ICE, CBP and the like, and that 
was just completely contrary to the way policy development 
occurs in the Department of Justice.
    Furthermore, on the death penalty, we have a process in the 
Department of Justice. It is the one area that is non-delegable 
by the attorney general. And Mr. Charlton, in a particular 
case, was told and was authorized to seek in a particular case. 
He chose instead to continue to litigate after that long and 
exhaustive process, going from his career people to him to the 
criminal division, the Capital Case Unit, which comes to the 
recommendation of the deputy attorney general's office, and 
then the attorney general.
    Ms. Sanchez. Thank you, Mr. Moschella.
    I am going to reserve the balance of Mr. Watt's time and 
turn to my Ranking Member, Mr. Cannon, for questions.
    Mr. Cannon. I don't think that you can reserve time. I 
think that Mr. Watt has to use it. You can return it to Mr. 
Watt and he can ask questions or yield back.
    Mr. Watt. I would be happy to take it back and at an 
appropriate time re-yield it to you if that----
    Mr. Cannon. I don't think that you can hold time. We may go 
a second round, which is perfectly appropriate.
    I don't mean to be a stickler here, but we have lots of 
folks that have lots of questions and lots of witnesses.
    Mr. Watt. When my turn comes, I can take it. I don't know 
that there is anything in the rules that prohibits me from 
taking the rest of my time.
    Mr. Cannon. I think that the normal procedure would have 
been for me to take time. If you wanted to give----
    Mr. Watt. If you had objected to my yielding it to the 
Chair at that moment, she might have had to take it in my time 
slot, but you didn't object.
    Mr. Cannon. No, that is correct. I did not object because 
of our personal relationship, but once your time is granted, I 
think you lose that time for the round.
    Mr. Watt. I don't think so.
    Mr. Cannon. So if you want to take time--I think that is 
the rule. But this is--I don't mean to be a stickler here. If 
you want to take the time, fine. But I would like to----
    Mr. Watt. Well, why are we talking about this if you don't 
mean to be a stickler?
    Ms. Sanchez. We will take that issue--excuse me. We will 
take that issue under advisement.
    In the meantime, Mr. Cannon, you will be recognized for 
your 5 minutes to ask questions.
    Mr. Cannon. Thank you very much.
    Thank you, Mr. Moschella, for being here.
    I am one of your great admirers. I appreciated working with 
you here on the Committee where you served as parliamentarian 
and legal counsel to the Committee for several years. In fact, 
how long did you serve on this Committee?
    Mr. Moschella. Since 1998 to 2003.
    Mr. Cannon. Thank you.
    Great service. We appreciate it on the Committee. And we 
appreciate your being back here. And I want to thank you for 
your very thoughtful statement in a difficult environment and 
give you a chance, first of all, to add anything that you would 
like in particular.
    I know that you were a little bit rushed, but you did 
mention Lam's prosecution or low-end number of prosecutions on 
the firearms issues. Can you elaborate on that a little bit, 
please?
    Mr. Moschella. Well, when the President ran for election, 
one of the cornerstone priorities that he had was preventing 
violent crime. We do so through our Project Safe Neighborhoods 
Program. Congress has appropriated millions and millions of 
dollars for this program over the last several years.
    Our firearms prosecutions have gone up I believe over 70 
percent over the time of this Administration and we expect the 
U.S. attorneys to follow in those priorities. The U.S. 
attorneys hear about those priorities at conferences, PSN 
conferences, at U.S. attorneys conferences, through memos and 
other forums. Indeed, at one of the PSN conferences, President 
Bush gave a videotaped presentation about the importance of 
prosecuting violent criminals.
    Mr. Cannon. And how did Ms. Lam's district rank in terms of 
number of prosecutions during the relevant period?
    Mr. Moschella. I don't have the numbers committed to 
memory, but she was 91st out of 93 districts.
    Mr. Cannon. And the other districts were--do you recall 
what 92 and 93 were?
    Mr. Moschella. Guam and the Virgin Islands.
    Mr. Cannon. Places that don't have the kind of significant 
crime that we have in Southern California.
    Mr. Moschella. And certainly don't have the significant 
resources of the Southern District of California.
    Let me say, I think every U.S. attorney will say, ``I have 
resource problems.'' And it is true. Congress in the past 
several years has not funded the President's request and we 
actually got a pretty good appropriation out of the joint 
resolution. So there are strains, and we have set specific 
priorities.
    That said, these are high Administration priorities and we 
expect that those priorities be fulfilled.
    Mr. Cannon. What happened to prosecutions of people 
smuggling people or drugs across the border in Ms. Lam's 
district?
    Mr. Moschella. Well, at about the 2004, 2005 time frame, 
just at the time, coincidentally, that the Administration is 
really gearing up to make its case on the Hill for 
comprehensive immigration reform, the numbers in that district 
dropped precipitously, and it was because of a policy 
instituted to focus on, and I know Ms. Lam will say, on higher 
priority prosecutions.
    The truth is, on the border we need to prosecute these 
cases before they become interior problems. And I understand 
prioritizing, but we have made this a priority for the border, 
and to have both components of comprehensive immigration reform 
work, the guest worker program and enforcement, you need them 
both, and the Congress has put a lot of resources toward this 
effort. We have put more resources on the border. We can always 
use more, but the other border districts did substantially 
more.
    Mr. Cannon. Since time is limited, let me just clarify. You 
are speaking in terms of Ms. Lam's priorities and what she 
thought was higher priority, and then you went on to talk about 
what we needed. When you talk about what we needed, you are 
talking about what the President has directed, what the 
attorney general has directed and what the Department of 
Justice was telling Ms. Lam to do. Is that not correct?
    Mr. Moschella. That is right. And quite frankly, Members of 
Congress, some from the House, some from--at least one in the 
Senate, Senator Feinstein, wrote specifically about this issue, 
the concern that the San Diego area, which is an extremely 
important sector and port of entry, that it not become kind of 
a magnet for these coyotes and other smugglers.
    Mr. Cannon. And did it become a magnet?
    I see my time has expired.
    Mr. Cannon. And I will just let the witness answer the 
question.
    Ms. Sanchez. Will you please restate the question, Mr. 
Canno?
    Mr. Moschella. Did it become a magnet?
    Mr. Cannon. In other words, was there change in the 
patterns at the border?
    Mr. Moschella. Well, I know that the border patrol and 
others in that area were very concerned about the numbers of 
apprehensions made and the number of prosecutions that were 
declined. So I don't have a specific figure for you. But when 
you lower the prosecutions, the deterrence level certainly will 
go down.
    Ms. Sanchez. The time of the gentleman has expired.
    The Chair now recognizes the gentleman from Michigan, Mr. 
Conyers, for 5 minutes.
    Mr. Conyers. Thank you.
    This is a little bit astounding. Here we have the greatest 
corruption prosecution in the end of the 20th century and 21st 
century by Ms. Lam, and you say she rates so poorly that we are 
going to have to improve her office by replacing her.
    This past Sunday, Mr. Moschella, on interviews with the 
Justice Department officials, the New York Times reported that 
discussions began in October about removing U.S. attorneys and 
that after a list was identified, it was presented to Attorney 
General Gonzales and Deputy Attorney General McNulty. Is that 
correct?
    Mr. Moschella. That is generally correct. There was a 
process, starting in October----
    Mr. Conyers. I don't need the details, but I think that 
your answer is basically yes.
    Who inside the department was involved in the discussions 
to identify the U.S. attorneys to be removed?
    Mr. Moschella. Well, the discussion occurred in really a 
collaborative way between the attorney general's office----
    Mr. Conyers. Yourself?
    Mr. Moschella. No. I joined the deputy's office in October, 
on October 3, just about when this process began.
    Mr. Conyers. Kyle Sampson, chief of staff to the attorney 
general?
    Mr. Moschella. The chief of staff was involved.
    Mr. Conyers. Yes. Mike Elston, chief of staff to Mr. 
McNulty?
    Mr. Moschella. That is correct.
    Mr. Conyers. Monica Goodling, in the office of the attorney 
general?
    Mr. Moschella. Yes, sir.
    Mr. Conyers. And who else?
    Mr. Moschella. I would say that was probably the core 
group, and then at certain stages other folks----
    Mr. Conyers. What about Michael Battle?
    Mr. Moschella. As I was saying, some may have been 
consulted to obtain either information or----
    Mr. Conyers. Yes. What about Michael Battle?
    Mr. Moschella. Yes, he was consulted.
    Mr. Conyers. Okay. And he has since resigned as head of the 
executive office of the U.S. attorneys?
    Mr. Moschella. I think he has another couple weeks on the 
job. But to the extent that the question somehow implies that 
he is being forced out, nothing could be further from the 
truth.
    Mr. Conyers. Well, I haven't implied anything.
    Mr. Moschella. Not you. But it is implied. We have received 
many----
    Mr. Conyers. Look, we are not reviewing the media right 
now. I just am trying within this limited time to get some 
responses from you.
    You were involved subsequently, though, in these 
discussions. Am I right?
    Mr. Moschella. That is right. I was involved in the 
discussions.
    Mr. Conyers. Did you consult former DOJ officials, like 
James Comey?
    Mr. Moschella. I don't believe Mr. Comey was consulted.
    Mr. Conyers. Well, was anyone at the White House consulted 
or did they offer any input in compiling the list of U.S. 
attorneys to be terminated, to the best of your knowledge?
    Mr. Moschella. The list was complied at the Department of 
Justice.
    Mr. Conyers. Was the White House consulted?
    Mr. Moschella. Well, eventually, because these are 
political appointees----
    Mr. Conyers. Sure.
    Mr. Moschella [continuing]. Which is unremarkable, send a 
list to the White House, let them know----
    Mr. Conyers. I understand.
    Mr. Moschella [continuing]. Our proposal and whether they 
agreed with it.
    Mr. Conyers. The answer is yes. Your answer is yes?
    Mr. Moschella. Yes.
    Mr. Conyers. All right. I believe that is ordinary process.
    Now, who did it go to in the White House?
    Mr. Moschella. Our contact is the counsel's office.
    Mr. Conyers. Who is that?
    Mr. Moschella. Specifically who in the counsel's office?
    Mr. Conyers. Well, is it true that it was the White House 
that asked that you find a position for Mr. Rove's former 
deputy, Mr. Timothy Griffin?
    Mr. Moschella. If you mean you as in me, personally----
    Mr. Conyers. You, as in Mr. Moschella.
    Mr. Moschella. No.
    Mr. Conyers. But what about the department?
    Mr. Moschella. There was a point in time when, before Mr. 
Griffin had come back from Iraq, and knowing that he would be 
returning from his service in Iraq, that the counsel to the 
President communicated and asked is there----
    Mr. Conyers. So your answer is yes----
    Ms. Sanchez. The time of the Chairman has expired.
    Were you finished with the answer to that question, Mr. 
Moschella?
    Mr. Moschella. I don't know if we got it all. There was a 
communication about whether or not there was a place for Mr. 
Griffin and, obviously, he had already been considered for the 
other district in Arkansas, so there is an interest in allowing 
him to continue to serve his country in that capacity.
    Mr. Conyers. Thank you, Mr. Moschella.
    Ms. Sanchez. Thank you, Mr. Conyers.
    The Chair now recognizes the gentleman from Ohio, Mr. 
Jordan, for 5 minutes.
    Mr. Jordan. Thank you, Madam Chair.
    Thank you, Mr. Moschella, for joining us today.
    Before or after the department determined to dismiss this 
group of attorneys, did the department ever interfere with one 
of their districts' public corruptions cases?
    Mr. Moschella. Absolutely not.
    Mr. Jordan. Never asked to speed any up? Never asked to 
dismiss a case?
    Mr. Moschella. No.
    Mr. Jordan. Before or after the department determined to 
dismiss this group of attorneys, did the department support the 
attorneys' investigations and prosecutions of public corruption 
cases, whether against Republicans or Democrats or whomever?
    Mr. Moschella. Absolutely. I mean, the attorney general, as 
I said, the attorney general and the director of the FBI have 
made this area a priority. Who else other than the FBI and the 
Justice Department can root out the kind of corruption that we 
want to see rooted out? And I think that the record--and Mr. 
Conyers mentioned Ms. Lam. I didn't say that Ms. Lam's 
performance in the things that she was doing was poor. The 
Cunningham case is something, as I said, we applaud, we herald, 
and if public officials are engaged in that kind of activity, 
they need to be brought to justice.
    All I pointed out with regard to that district is that in 
the other priority areas, they were not being as vigorously 
pursued as we would have liked.
    Mr. Jordan. You had mentioned in your earlier testimony and 
you just referenced it right there, about Ms. Lam, that she was 
91st out of 93 or 92nd out of 94 districts. For the other five 
attorneys, can you give me a summary of where they may have 
ranked in specific areas of prosecution cases relative to that, 
you know, to the 94 districts across the country?
    Mr. Moschella. Well, in the other districts, we didn't have 
this same sort of difference on prosecution. We certainly had 
these other policy differences. For example, as I mentioned for 
Mr. Charlton, on death penalty or FBI taping and the like.
    We certainly were aware, those who are considering these 
things, we certainly were aware that in Mr. McKay's district, 
that the sentencing--within--he had one of the--maybe one other 
district was lower, but one of the lowest within guidelines 
sentencing ranges, and we had--Deputy Attorney General Comey 
had sent out a memo I believe in 2004 to all U.S. attorneys 
indicating that we, the Justice Department, need to do our part 
to ensure that we get the maximum number of within guideline 
sentences.
    So that was a consideration, certainly, in that district.
    Mr. Jordan. You also mentioned in your testimony relative 
to Mr. McKay, since you just brought him up there, that there 
were policy differences. Can you elaborate a little bit more on 
those policy differences?
    Mr. Moschella. He was a vigorous and strong proponent of a 
particular information sharing system called LInX. He did a lot 
to promote it around the country and within the department, but 
we had a difference, and the manner in which we----
    Mr. Jordan. And it was fair to say that you communicated 
the difference that the leadership in the Department of Justice 
had with him, and yet he continued to promote that?
    Mr. Moschella. Yes. He was always in contact, particularly 
on this issue, because the deputy attorney general's office is 
really driving information sharing policy. So he clearly knew 
the position of the department in this regard.
    Mr. Jordan. Appreciate it.
    Madam Chair, I yield back the balance of my time.
    Ms. Sanchez. Thank you.
    The gentlewoman from California, Ms. Lofgren, is recognized 
for 5 minutes.
    Pardon me, I skipped over a colleague.
    The gentleman from Georgia, Mr. Johnson. My apologies. You 
are recognized for 5 minutes.
    Mr. Johnson. Thank you.
    Mr. Moschella, is it true--or I should say, isn't it a fact 
that several of the individuals in the group that drew up the 
termination list have close associations with the White House, 
in particular Kyle Sampson, who worked at the White House until 
coming to DOJ in 2003 and one of Monica Goodling's jobs at 
Department of Justice is to be a liaison to the White House. Is 
that correct?
    Mr. Moschella. That is correct. But that is her job. I 
would hope that the White House liaison within the department 
had a close working relationship with the White House. It is 
kind of in the job description.
    Mr. Johnson. Of course.
    Mr. Moschella. And Kyle Sampson is the chief of staff to 
the attorney general. I assume that the chief of staff to the 
attorney general has some relationship.
    Mr. Johnson. Is it possible, Mr. Moschella, that there are 
conversations that they or others had with you or had--that 
they had or other had--that you don't know about? Isn't that 
correct? There are possibilities that they had conversations 
that you don't know about? Isn't that correct?
    Mr. Moschella. Well, Congressman, in preparation for this 
hearing, I did what I think is the appropriate amount of due 
diligence to collect the facts and so while anything is 
possible, I believe I know----
    Mr. Johnson. It is possible, and you answered the question.
    Were there meetings of the group within the Justice 
Department that compiled the termination list?
    Mr. Moschella. Meetings? There were meetings.
    Mr. Johnson. And were there memoranda or record of these 
meetings or e-mails or other communications on the subject that 
were generated?
    Mr. Moschella. I don't know of any memoranda that was 
created. At some point, names were put on a list, but I don't 
know about the specific records.
    Mr. Johnson. Who would have control of that list? Who would 
maintain control of that list?
    Mr. Moschella. Well, if folks have a list in their----
    Mr. Johnson. Specifically who?
    Mr. Moschella. I don't know what information is in anyone's 
files. The information could be in any number of places.
    Mr. Johnson. All right.
    At some point, recommendations were made to Deputy Attorney 
General McNulty and Attorney General Gonzales about which U.S. 
attorneys to terminate. Did they agree with those that your 
group recommended or were there any changes to the list that 
they made?
    Mr. Moschella. I wouldn't put it exactly the way you did, 
sir. This was not kind of a working group that made a 
recommendation to the DAG and the AG. It was more a 
collaborative process between----
    Mr. Johnson. So they were involved, along with your group, 
in making this list?
    Mr. Moschella. And there was a consultation process, and as 
they were looking at----
    Mr. Johnson. They came to a consensus kind of agreement, is 
that what it was?
    Mr. Moschella. That is right. It came to a consensus.
    Mr. Johnson. All right, well, let me ask you this question 
then. Is there anything that evidences the agreement? Any 
written memoranda, any documentation that evidences that 
consensus agreement? Or is it just in someone's head?
    Mr. Moschella. I don't have a specific document in mind, 
but----
    Mr. Johnson. Well, are there some documents that you can 
identify for us that evidence the consensus agreement?
    Mr. Moschella. No, but I assume that there is--that the 
names were on a piece of paper at some point. And the names are 
the seven that----
    Mr. Johnson. Did you make a list of the names?
    Mr. Moschella. I did not.
    Mr. Johnson. Did you see anyone else make a list?
    Mr. Moschella. I did not see anyone make a list.
    Mr. Johnson. How many times did this group meet along with 
McNulty and Gonzales about this list?
    Mr. Moschella. I don't know a specific number of times that 
the group met.
    Mr. Johnson. Do you recall the dates that you all met?
    Mr. Moschella. No. And as I said, I may have been involved 
in some of the meetings. I did not have a basis upon which to 
add substantively to the record of the U.S. attorney. So I may 
not have been in any meetings.
    Prior to serving as the Pay DAG, I was the assistant 
attorney general for legislative affairs for three and a half 
years and so----
    Mr. Johnson. Mr. Moschella, I am getting ready to run out 
of time and I want to ask you this question.
    The Committee is very interested in further inquiry into 
this matter. Can I have your assurance that you will make 
available to the Committee the individuals I have asked you 
about and all memoranda, e-mails and other documents on this 
subject as was asked by myself and previous questioners? Can I 
get your commitment on that?
    Mr. Moschella. Congressman, we have done everything we can 
to cooperate, including providing documents to the Committee, 
having the briefings. We will continue to work with you.
    Mr. Johnson. Thank you, sir.
    Ms. Sanchez. The time of the gentleman has expired.
    The Chair now recognizes that gentleman from Florida, Mr. 
Keller, for 5 minutes.
    Mr. Keller. Thank you, Madam Chairman.
    Mr. Moschella, do U.S. attorneys serve at the pleasure of 
the President?
    Mr. Moschella. Yes, sir.
    Mr. Keller. Because I only have 5 minutes, I am going to 
limit my questions to Ms. Lam's situation. That has been 
brought up quite a bit.
    Did the Department of Justice headquarters ever discourage 
Ms. Lam from bringing the case against Duke Cunningham?
    Mr. Moschella. No. In fact, I know that there was 
discussion about which district to send it to, and her district 
was favored over another district.
    Mr. Keller. Did the Department of Justice actually assist 
Ms. Lam in trying to help her obtain documents from Congress 
relating to the Duke Cunningham case?
    Mr. Moschella. Yes, assistance has been provided in that 
regard.
    Mr. Keller. Let me be crystal clear. Did Ms. Lam's role in 
prosecuting Duke Cunningham have anything whatsoever with her 
being asked to resign?
    Mr. Moschella. No, sir.
    Mr. Keller. Now, it is my understanding from your earlier 
testimony, the concerns that the attorney general had with her 
related to the prosecution of gun crimes and immigration 
enforcement. Is that correct?
    Mr. Moschella. Yes, sir.
    Mr. Keller. Okay. And those concerns, in fact, actually 
predated the Duke Cunningham scandal coming to light. Isn't 
that correct?
    Mr. Moschella. Yes. Well, I don't know exactly when Duke 
Cunningham----
    Mr. Keller. I will refresh your recollection. This is the 
story that broke the Duke Cunningham story wide open, published 
by San Diego Union Tribune June 12, 2005: ``Lawmakers' Home 
Questioned.'' This was the beginning of the end, appropriately, 
for Mr. Cunningham.
    I have letters here, letter after letter, over a year 
before that. February 2, 2004, Congressman Darrell Issa writing 
to Ms. Lam, complaining that she is not prosecuting alien 
smugglers. March 15, 2004, Ms. Lam responds to Congressman 
Issa. May 24, 2004, Will Moschella, on behalf of DOJ, 
responding to Mr. Issa, raising concerns about an illegal alien 
smuggler, Antonio Imparo Lopez not being prosecuted.
    Does that refresh your recollection?
    Mr. Moschella. It does.
    Mr. Keller. So, in fact, the concerns that were being 
raised, which ultimately led to her dismissal, were raised 
before we even knew about the Duke Cunningham scandal. Is that 
right?
    Mr. Moschella. Well, I don't want to get----
    Mr. Keller. Before the public knew about it.
    Mr. Moschella. Yes, those concerns existed. As I testified 
in the 2004-2005 time frame, when she specifically changed 
policy in the department, there was a precipitous drop in the 
number of immigration cases.
    Mr. Keller. Let me cut you off, because I have got to go 
with some more questions.
    Did the Department of Justice ever share its concerns 
before asking her to resign, about the problem with gun 
violence prosecution and immigration enforcement prosecution?
    Mr. Moschella. On the gun side, yes. I believe she had a 
conversation about it with Deputy Attorney General Comey. On 
the immigration side, I don't know specifically what was 
communicated. I know there was back and forth with regard to 
what was going on in her district.
    But, that said, again, United States attorneys know what 
the priorities are and should be executing on those priorities.
    Mr. Keller. Let me again refresh your recollection. On 
April 6, 2006, Attorney General Gonzales testified before the 
full House Judiciary Committee, and I relayed to him some 
concerns I heard from border patrol agents, having spent a week 
with the border patrol in San Diego, about their complaints 
about there not being any prosecution of people who are 
smuggling aliens unless they commit a violent act against 
someone or bring 12 people with them.
    And this specifically was my question to Attorney General 
Gonzales: ``What if anything will you do to see that the U.S. 
attorney in San Diego prosecutes those alien smugglers, at 
least those who have been repeatedly arrested by border patrol 
agents?''
    Answer, by Gonzales: ``I am aware of what you are talking 
about with respect to the San Diego situation, and we are 
looking into it. We are asking all U.S. attorneys, particularly 
those on our southern borders, to do more, quite frankly. We 
need to be doing more, and we are looking at the situation in 
San Diego, and we are directing that our U.S. attorneys do 
more, because you are right, if people are coming across the 
border repeatedly, particularly those who are coyotes and they 
are smugglers, whether criminals or felons, they ought to be 
prosecuted.''
    Now, that little dialogue between myself and the attorney 
general took place on national TV, on CSPAN.
    Mr. Moschella. I was sitting behind him.
    Mr. Keller. You were sitting behind him. After that, did 
the attorney general or anyone from DOJ share with Ms. Lam the 
concerns that he had raised at the hearing relating to the 
prosecution of alien smugglers?
    Mr. Moschella. I can't tell you if a transcript or 
something like that was sent to her. I don't know.
    Mr. Keller. You don't know? Okay.
    Thank you. I will yield back the balance of my time.
    Ms. Sanchez. Thank you.
    The gentlewoman from California is recognized, Ms. Lofgren, 
for 5 minutes.
    Ms. Lofgren. Thank you, Madam Chairwoman.
    The Department of Justice has praised the Cunningham 
corruption probe as really a lynchpin in the growing pursuit of 
public corruption cases and I believe at the time that former 
U.S. Attorney Carol Lam left the office, that probe had led to 
at least two more indictments and I think was still ongoing, 
based on press accounts.
    I am concerned about the state of those investigations. The 
top FBI official in San Diego, according to the San Diego Union 
Tribune, was quoted as saying that Ms. Lam's dismissal would 
undermine multiple continuing investigations. And I realize 
that mid-last month several Members of Congress wrote to the 
department, suggesting that Ms. Lam be retained as outside 
counsel so that those corruption investigations would not be 
disrupted and would be completed.
    Is the department intending to take that course of action?
    Mr. Moschella. No. We see no reason to have outside counsel 
on this case. And let me say, I would be surprised if it were 
Ms. Lam's opinion that the prosecutors on the case were not 
able to fulfill the----
    Ms. Lofgren. Reclaiming my time, I am just quoting the top 
FBI official who expressed the concern that these 
investigations would be disrupted.
    Mr. Moschella. I can say--let me say that that individual 
also used a very inflammatory word in one of the press articles 
and said that the decision was politics, and there is 
absolutely, positively no basis for it. No one is----
    Ms. Lofgren. I don't know the individual. I do know the 
FBI, and they tend not to be very political people. They are 
tough cops.
    Mr. Moschella. My brother is an FBI agent. I respect 
their----
    Ms. Lofgren. And they are not tough cops?
    Mr. Moschella. And they are. But let me tell you, that 
comment was absolutely irresponsible.
    Ms. Lofgren. Well, you can imagine, if you will, Mr. 
Moschella, that the impact of these firings has led to concern 
about the role of politics across the country.
    Let me ask you this, and we will hear from the fired U.S. 
attorneys shortly on the alleged reasons for their termination, 
but would you agree with me and the CRS that although U.S. 
attorneys have in fact sometimes been dismissed in the past, 
the discharge of this many U.S. attorneys, I think it is eight 
so far, in this short a period of time is unprecedented?
    Mr. Moschella. I don't know if it is unprecedented. But as 
I said before, what was going on at the department was a 
process to look at what we can do in the last 2 years of the 
Administration to push the policies and priorities of the 
department. Nothing more, nothing less.
    In January, the attorney general directed that he get 
briefed on his policy and priority areas. He had set specific 
goals, specific metrics that we measure ourselves by, and we 
intend to fulfill our own goals in this regard.
    Ms. Lofgren. Let me ask you this. Is it true that at least 
with respect to the six U.S. attorneys that are here with us 
today, all received favorable performance reviews or EARS 
evaluations?
    Mr. Moschella. No. And let me just say that has been talked 
about. EARS reports are not reviews of the U.S. attorneys 
themselves. The U.S. attorneys have two supervisors, the 
attorney general and the deputy attorney general. Neither----
    Ms. Lofgren. Have these reports been provided to the 
Committee?
    Mr. Moschella. I believe they have.
    Ms. Lofgren. All right. Then I will review them in some 
detail.
    We learned just today that Mr. Battle has apparently 
submitted his resignation sometime ago. Have you provided a 
copy of his resignation letter to the Committee or record of 
his resignation decision to his Committee?
    Mr. Moschella. No.
    Ms. Lofgren. Could you do so?
    Mr. Moschella. I will get back to the Committee, but let me 
just say, I saw Mike Battle yesterday and had a good laugh over 
this. Mike Battle had indicated to folks in the department that 
he was looking last year and folks have known about this for 
quite sometime.
    Ms. Lofgren. Well, if we could just get the documents, that 
would be very good.
    Now, we are interested in the nature and extent of 
communications between the department and Members of Congress 
concerning any of the terminated U.S. attorneys. Can you 
provide us with communications from Members of Congress, on 
both sides of the aisle, in advance of the terminations of the 
U.S. attorneys?
    Mr. Moschella. We will go back and see what--the only 
letters, really, that I know of, are the ones by Senator 
Feinstein and the ones referenced by Mr. Keller.
    Ms. Lofgren. Verbal communication would also be included, 
if you could.
    Ms. Sanchez. The time of the gentlewoman has expired.
    The Chair now recognizes the gentleman from Florida, Mr. 
Feeney, for 5 minutes.
    Mr. Feeney. Thank you, Madam Chairman.
    Mr. Moschella, thanks for being back with us.
    There is one statement in your testimony that probably 
isn't technically correct. You say, like other high-ranking 
officials in the executive branch, you are referring to U.S. 
State attorneys, ``They may be removed for any reason or no 
reason at all.'' That probably isn't exactly accurate, that you 
couldn't fire somebody because, for example, of their race or 
ethnicity. You couldn't fire somebody to obstruct justice.
    Would it be correct that you can't fire even high-level 
officials for any reason whatsoever?
    Mr. Moschella. As we said, everyone--there was a reason, 
whether folks agree or disagree with these, there was a reason.
    Mr. Feeney. I was just pointing out that, theoretically, 
there are certain----
    Mr. Moschella. I have not done the article 2 analysis about 
whether or not there is any limitation on the President. I 
don't believe so, but there are all reasons in this case. It 
wouldn't be the right thing to do in the examples that you 
said.
    Mr. Feeney. I think what you really intended or ought to 
have said there is that these are not lifetime appointments, 
they serve at the pleasure of the President. And within reason, 
he has the ability to, just as he does to hire them, to fire 
them for anything that would be a legal reason.
    Mr. Moschella. They are like the folks sitting behind you 
today. They are at-will employees. I sat there for almost 13 
years.
    Mr. Feeney. Aside from the performance issues on some 
specific benchmarks that you mentioned in the Southern 
California case, you also point out that these are not just 
prosecutors, that they have managerial and policy 
responsibilities.
    And so that, for example, you point out that the attorney 
general, at U.S. attorney conferences and through memos, even 
the President of the United States through a video, announces 
his priority policies and what can you do to State attorneys 
who are simply ignoring the attorney general and the President 
of the United States when it comes to management 
responsibilities and policy priorities? Other than firing, do 
you have any other discipline mechanisms?
    Mr. Moschella. No, there isn't a way that you can garnish 
their--I don't believe you can garnish their wages, or 
something like that. I mean, they are the presidential-
appointed, Senate-confirmed leader of that office, and I don't 
know how else we would communicate to them those priorities, 
other than the manner in which you state, the memos, 
conferences and the like.
    Mr. Feeney. I remember a great deal of criticism of the 
former secretary of defense and criticism of the President for 
not asking him to step down earlier. There was even criticism 
after he did step down. Recently, we have had people with the 
U.S. Army resign because of a situation at Walter Reed.
    It seems as if the Administration is damned if they do and 
damned if they don't when it comes to replacing people that are 
not putting priorities on their policies. I can tell you, I for 
one have been strongly critical, not just of independent state 
of attorneys for lack of enforcement, for illegal immigration 
issues and violent crime, but of the Administration itself, and 
I am delighted to hear that no matter how successful in one 
area a State attorney is, that if they are not prosecuting 
illegal immigration offenses, and especially firearm offenses 
with respect to violence, that I personally am delighted that 
there is a signal sent to all State attorneys that these are 
priorities of the Administration and, personally, I want to 
congratulate you.
    By the way, one thing that we haven't put formally in the 
record, Congressman Keller talked about his correspondence and 
Congressman Issa's, but it wasn't just Republicans complaining 
about lack of enforcement in Southern California. Senator 
Feinstein's letter on June 15, 2006 made very clear that the 
U.S. attorney's office for the Southern District of California 
may have some of the most restrictive prosecutorial guidelines 
nationwide for immigration cases, such that many border patrol 
agents end up not referring their cases.
    I also want to stress the importance of vigorously 
prosecuting these types of cases. And she goes on to say that 
she is concerned that lax prosecution can endanger the lives of 
border patrol agents.
    So Republicans and Democrats in Congress are urging the 
Administration to do a better job in Southern California. And 
as you said, you can't garnish wages. You really only have one 
remedy available to you, and I personally applaud you for using 
it. I hope everybody else along the border gets the message. By 
the way, I hope they will quit----
    Ms. Sanchez. The time of the gentleman has expired.
    Mr. Feeney [continuing]. Prosecuting border patrol agents, 
if I can add my two cents on that, too.
    Ms. Sanchez. The gentleman from Massachusetts, Mr. 
Delahunt, is recognized for 5 minutes.
    Mr. Delahunt. Thank you, Madam Chair.
    Mr. Moschella, I am going to ask you to keep your responses 
as concise as possible because there is a series of questions I 
would like to pose to you.
    I found it interesting that you used the word authorized 
the U.S. attorney to seek the death penalty. Does that mean in 
terms of your policy that if main Justice makes a decision to 
authorize the U.S. attorney to seek the death penalty, that 
that U.S. attorney must comply with that authorization? Is 
there any discretion at all?
    Mr. Moschella. Yes. It is to seek.
    Mr. Delahunt. Then it is a decision made in Washington. It 
is not made in the local jurisdiction?
    Mr. Moschella. That is right. This is a non----
    Mr. Delahunt. Thank you.
    You know, you referred in very cursory terms to a more 
expanded version of why many of these individuals had been 
terminated. Were they given that information prior to the 
termination?
    Mr. Moschella. No, sir.
    Mr. Delahunt. Wouldn't it have been a better practice to 
extend that courtesy to them?
    Mr. Moschella. As I said, in hindsight, it absolutely would 
have. I think that----
    Mr. Delahunt. Thank you.
    Mr. Moschella. Yes, sir.
    Mr. Delahunt. You know, you mentioned that in response to a 
question by Congresswoman Lofgren, that I don't think that you 
really meant it, that it was unprecedented or that there had 
been precedents in terms of the eight dismissals within a 
matter of months.
    Mr. Moschella. My only point is I have not gone back in 
past Administrations and done a----
    Mr. Delahunt. To be perfectly candid, Mr. Moschella, and I 
do have respect for you, you know that, this has been a matter 
that has been raised prior, too, and you haven't gone back and 
done that kind of research?
    Mr. Moschella. I have not.
    Mr. Delahunt. There was a Senate hearing this morning. It 
is my understanding that during the course of that hearing, one 
of the individuals that is present here today, Mr. Cummins, 
testified before the Senate that he received a telephone call 
from Michael Alspin on or about February 20. Are you aware of 
that testimony?
    Mr. Moschella. I am generally aware of it. I don't know 
that I caught it all. I caught some of it.
    Mr. Delahunt. Okay. Well, according to my information, the 
former U.S. attorney testified that Mr. Alspin explained that 
the public perceived the Department of Justice as being 
reluctant to disseminate specific information regarding the 
U.S. attorneys' dismissals. But that if the dismissed U.S. 
attorneys continue to speak to the media, the Department of 
Justice would have to release information that would exacerbate 
the U.S. attorneys' situation.
    Mr. Cummins further mentioned that Mr. Alspin suggested 
that it would be a bad idea for the dismissed U.S. attorneys to 
voluntarily testify in Congress. Are you familiar with that 
testimony by Mr. Cummins?
    Mr. Moschella. I am not sure that that is what he said. In 
fact, after questioning by Senator Specter, he said that 
whatever transpired, he said I wouldn't make a good witness at 
a trial in this matter. He didn't have a clear recollection of 
specific words, and that it was his opinion that whatever it 
was, was friendly advice. And that is a quote. He said it was 
friendly advice.
    Mr. Delahunt. Okay. Thank you, Mr. Moschella.
    Would you have----
    Mr. Moschella. Can I just say----
    Mr. Delahunt. I don't have a lot of time.
    Mr. Moschella. I will be very brief.
    Mr. Delahunt. My time is very short.
    Let me just pose one additional question, then. Would the 
Department of Justice make Mr. Alspin available to this 
Committee for purposes of inquiry into this matter?
    Mr. Moschella. That is not a decision for me, but I will 
certainly take it back and get back to you as soon as we can.
    Mr. Delahunt. Who is the decision for?
    Mr. Moschella. I will consult with the new acting head of 
the Office of Legislative Affairs.
    Mr. Delahunt. Well, I think that you have an increase in 
your pay grade. Would your recommendation be favorable that 
this Committee would have an opportunity to inquire of Mr. 
Alspin?
    Mr. Moschella. I think Mr. Alspin would probably be happy 
to talk to you about that.
    Mr. Delahunt. I thank you, and I yield back.
    Ms. Sanchez. Thank you. Would----
    Mr. Moschella. Madam Chairman, may I just--because I didn't 
get an opportunity to just make one point in that questioning 
by Mr. Delahunt.
    I just want to say, as I said, we should have, in 
retrospect, told these U.S. attorneys the reasons. And the 
record is that we did not go out publicly and talk about these 
things. The record is that the press reported on it. There were 
inquiries by the Congress. We briefed the Senate. The deputy 
attorney general briefed the Senate in closed door sessions----
    Ms. Sanchez. Mr. Moschella, will that be your policy in the 
future, moving forward, that you will explain to U.S. attorneys 
who you are asking to resign the reasons for their termination, 
prospectively?
    Mr. Moschella. It seems to me the prudent course.
    Ms. Sanchez. Thank you.
    We have been advised by the House parliamentarian that once 
Mr. Watt's time began it could not be interrupted, and 
therefore that Mr. Watt's time for this round of questions has 
expired.
    Is there any objection to Mr. Watt receiving 3 minutes of 
time now for questioning?
    Mr. Cannon. Madam Chair, reserving the right to object, I 
would be pleased if Mr. Watt had 5 minutes to question.
    Ms. Sanchez. Is there any objection to Mr. Watt being 
recognized for 5 minutes for this round of questioning?
    Hearing none, Mr. Watt is recognized for 5 minutes.
    Mr. Watt. I thank both the Chairman and the Ranking Member.
    Mr. Moschella, this morning's New York Times published an 
article saying that former Federal prosecutor of Maryland, 
Thomas DiBiagio, was forced out in early 2005 because of 
political pressure stemming from public corruption 
investigations involving associates of the State governor, Mr. 
Ehrlich, our former colleague.
    First, are you aware of efforts made by any prominent 
Maryland Republicans to pressure Mr. DiBiagio to back away from 
the inquiries about the Ehrlich administration?
    Mr. Moschella. I am not.
    Mr. Watt. Are you aware of any complaints made to the FBI 
by Mr. DiBiagio about this incident?
    Mr. Moschella. I am not.
    Mr. Watt. Now, when you say you are not aware of it, does 
that mean it is not the case, or you just don't have any 
personal knowledge of it?
    Mr. Moschella. I am saying that I don't have personal 
knowledge. But----
    Mr. Watt. Have you done anything to review these 
allegations?
    Mr. Moschella. I have, in the last several hours since the 
story broke this morning.
    Mr. Watt. And you haven't found any impropriety there, is 
that what you are saying?
    Mr. Moschella. That is correct. And, in fact----
    Mr. Watt. I am just trying to get to the bottom of this.
    Mr. Moschella. But let me----
    Mr. Watt. Did Mr. DiBiagio's investigation into whether 
associates of Governor Ehrlich had improperly funneled money 
from gambling interests to promote legalized slot machines in 
Maryland play any role in his dismissal?
    Mr. Moschella. Absolutely not.
    Mr. Watt. And you are saying that as a matter of fact, not 
just based on your personal knowledge? Were you involved in his 
dismissal?
    Mr. Moschella. No. As I said, I was not in the deputy's 
office until October of last year. But I--what I want to----
    Mr. Watt. Are you saying that is a statement of facts on 
behalf of the department, or are you saying it based on your 
knowledge?
    Mr. Moschella. No, I am, because I--and this is what I 
wanted to explain--I spoke to 42-year career veteran David 
Margolis who is the person in charge of ethics matters in the 
department under this Administration and the Clinton 
administration. And he walked me through what occurred then.
    Mr. Watt. Okay. Well, that is why I am just trying to make 
sure that there was no impropriety. Is it your testimony, then, 
that Mr. Ehrlich and no one else in his administration 
contacted the Department of Justice about Mr. DiBiagio's 
performance as U.S. attorney?
    Mr. Moschella. In fact, I believe it is Mr. Margolis' 
recollection that they supported him in the U.S. attorney 
position.
    Mr. Watt. Okay. And tell us, then--if you know, Mr. 
Moschella--what the circumstances under which Mr. DiBiagio was 
asked to leave.
    Mr. Moschella. Thank you, Congressman.
    As I said, I discussed this matter with David Margolis, who 
has the responsibility in the department for these matters. It 
came to his attention that there were inappropriate e-mails and 
a staff meeting initiated by Mr. DiBiagio in which he 
specifically called for public corruption cases within a 
specific time frame, indicating that he wanted to bring some 
prior to the election.
    This was so egregious that the deputy attorney general at 
the time, Jim Comey, had to write him a letter saying, ``You 
will not bring any public corruption cases without running it 
by me first.''
    Mr. Watt. So wait a minute, now. This seems entirely 
inconsistent with your prior testimony that this was totally 
unrelated to any public corruption investigation. Am I missing 
something here? Didn't you just testify that there was no 
connection?
    Mr. Moschella. His being asked to remove had nothing to do 
with any public corruption case. What I am saying is he sent 
several e-mails----
    Mr. Watt. But wasn't this before the election of Governor 
Ehrlich, and he was trying to get a prosecution done or charges 
brought before that election? And you are saying that an 
instruction from the Department of Justice to him not to pursue 
an investigation and charges before the election is not 
related?
    Mr. Moschella. We didn't tell him not to pursue any 
specific case. In fact, I am happy to provide the Committee 
with the agenda for the staff meeting that he called.
    And I just want to make this clear, after this just kind of 
outrageous kind of conduct occurred, David Margolis 
commissioned a specific review of him in which the evaluators 
found that the office was in disarray, poorly managed, had 
extremely poor morale.
    This is something that is kind of well known in----
    Mr. Watt. All coincidentally right after he said----
    Ms. Sanchez. The time of the gentleman----
    Mr. Watt [continuing]. ``I want to pursue a prosecution 
before an election involving the governor of Maryland.'' That 
is all coincidental, I take it.
    Mr. Moschella. I don't know.
    Ms. Sanchez. The time of the gentleman has expired.
    Mr. Conyers. I would request unanimous consent that Mr. 
Watt be extended an additional 2 minutes so that he can explore 
with Mr. Moschella the circumstances in this particular 
situation.
    Ms. Sanchez. The request is for unanimous consent for Mr. 
Watt to continue with this line of questioning for 2 minutes. 
Is there any objection?
    Hearing none, Mr. Watt you may continue.
    Mr. Watt. I guess the question I am raising is, you have 
testified on the one hand that there is no connection, and then 
you have come right back around and testified that there is a 
connection because there was a specific letter that went out 
from the Justice Department saying you shall not put a time 
line on this, and then you say there is no connection?
    Mr. Moschella. No, no, no.
    Mr. Watt. It seems to me that the investigation should have 
been launched of the person who wrote that letter.
    Mr. Moschella. No, no. There is no ``this,'' as in a 
specific case. So, in other words, he was requesting from his 
staff, and I think that if you look at, the Baltimore Sun early 
examined this issue, the concern--and I can tell you that----
    Mr. Watt. Was the e-mail related to this particular 
corruption investigation or it was a general e-mail?
    Mr. Moschella. It was general.
    Mr. Watt. Okay. And your response was a general response, 
related to no particular corruption investigation. Is that what 
you are saying?
    Mr. Moschella. That is right.
    Mr. Watt. Okay.
    I yield back the balance of my time.
    Ms. Sanchez. Thank you, Mr. Watt.
    The gentleman from Arizona, Mr. Franks, is recognized for 5 
minutes.
    Mr. Franks. Madam Chairman, I have no questions for this 
witness. Thank you.
    Ms. Sanchez. Mr. Moschella, thank you very much for your 
testimony.
    If you could please stick close in case there are further 
questions.
    We will now move to our second panel. Will the second panel 
of witnesses please be seated.
    Mr. Cohen. Thank you, Madam Chair. I had a bill I had to 
handle, first one, passed.
    But is there a chance Mr. Moschella could come back for 
just a minute?
    Ms. Sanchez. Is there any objection to recalling Mr. 
Moschella so that Mr. Cohen may question him?
    Hearing no objection, Mr. Moschella?
    And, Mr. Cohen, the gentleman from Tennessee, is recognized 
for 5 minutes.
    Mr. Cohen. Thank you, Madam Chairman, and I appreciate the 
Committee.
    If these questions have been asked of you, sir, I 
apologize. But you have discussed Mr. Cummins, and at some 
point you had said that he had made it known that he wanted not 
to fill out his term. Did he make that known to you?
    Mr. Moschella. No, sir.
    Mr. Cohen. Did he make it known to anybody at the 
Department of Justice?
    Mr. Moschella. What I have been told is that both because 
of some press reporting and some comments made to colleagues, 
that it was generally known that he would be looking to move on 
at some point, not serving out the full, you know, the second 
term, the full second term.
    Mr. Cohen. What other situations does the Administration 
depend on press reports to take policy actions? Does the 
Administration regularly act on press reports or do they 
basically act on facts that they ascertain themselves?
    Mr. Moschella. I didn't say that it was done solely on 
that. There was information that he had indicated, as I am 
told, by two colleagues, for example at the U.S. attorneys 
conference, that it wouldn't be--because of whatever 
particulars to his situation, he wouldn't be there for the 
entire second term.
    Mr. Cohen. Did anybody pick up the phone and ask him if he 
wanted to resign?
    Mr. Moschella. I don't believe so. I haven't been told that 
that happened.
    Mr. Cohen. You said that you hired Mr. Griffin, that he had 
obviously served this country nobly in Mosul, and that he 
wanted to serve this country in another capacity, and that is 
the reason you hired him. Is that correct?
    Mr. Moschella. Mr. Griffin had gone through the process for 
the other district in Arkansas and was one of four individuals 
considered, and as I think I have already testified, was most 
likely to be the person selected for that position. He had 
prosecutorial experience here in Washington and in Arkansas. He 
worked on the Project Safe Neighborhood Project for Mr. 
Cummins, but then he took another position, so he was not 
selected for the other district, and then after that served in 
Iraq.
    Mr. Cohen. And you said after he came back from Iraq you 
wanted to give him this opportunity. Is that not correct, sir? 
I believe I heard that before I left.
    Mr. Moschella. No, that is right.
    Mr. Cohen. What are the other Affirmative Action Iraqi 
veteran programs that you have in the Department of Justice? 
Was this the entire Affirmative Action Iraqi veteran Department 
of Justice program, or do you have other programs for people 
returning from Iraq?
    Mr. Moschella. Well, of course we have the veteran's 
preference laws which we institute through our personnel 
system, but this is not a normal personnel matter. This is a 
presidential-appointed, Senate-confirmed position.
    Mr. Cohen. And if he had not been in Iraq, would you have 
still hired him?
    Mr. Moschella. Pardon me?
    Mr. Cohen. If he had not gone to Iraq, would you have still 
wanted him to be the U.S. attorney?
    Mr. Moschella. As I said, before he went to Iraq, he was 
considered for another position and would likely have been 
selected but for the fact that he took another position.
    Mr. Cohen. You are familiar with Deputy Attorney General 
Palm McNulty?
    Mr. Moschella. I am.
    Mr. Cohen. And isn't it true that at a Senate hearing that 
Mr. McNulty admitted that Mr. Griffin was not the best possible 
person for the job?
    Mr. Moschella. I don't recall that to be his testimony?
    Mr. Cohen. What do you recall as his testimony? Did he 
suggest anything about Mr. Cummins not being a good attorney 
general?
    Mr. Moschella. No. He didn't suggest that Mr. Cummins would 
not----
    Mr. Cohen. What did he say about Mr. Griffin?
    Mr. Moschella. That Mr. Griffin was well qualified. Mr. 
Griffin had as much--I think Mr. Cummins would tell you he had 
as much prosecutorial experience, if not more, than when Mr. 
Cummins started in his position as U.S. attorney.
    Mr. Cohen. And where was that prosecutorial experience?
    Mr. Moschella. It was both here in Washington, in the 
criminal division, in the U.S. attorney's office, in Mr. 
Cummins' office, as an assistant United States attorney and 
then as a JAG lawyer.
    Mr. Cohen. What role did Mr. Rove play in recommending him 
to the Department of Justice?
    Mr. Moschella. I don't know that he played any role?
    Mr. Cohen. Do you know if there is any correspondence or 
any e-mails from the White House or any person, Ms. Miers, Mr. 
Rove or anybody else, to the Department of Justice concerning 
either replacing Mr. Cummins or replacing him with Mr. Griffin?
    Mr. Moschella. No. As I think the deputy attorney general 
briefed Members of the Senate, that there was a communication 
at some point from the counsel to the President to the 
department in anticipation of Mr. Griffin coming back from Iraq 
and seeing if there was a position within the department and 
that he had already been considered for a United States 
attorney position.
    Ms. Sanchez. The time of the gentleman has expired.
    Mr. Cohen. May I ask one last question?
    Ms. Sanchez. Does the gentleman ask unanimous consent for 
one last question?
    Mr. Cohen. Unanimous consent, yes. Yes, ma'am.
    Ms. Sanchez. Any objection?
    Hearing none----
    Mr. Cohen. I believe you talked about Mr. Alspin's memo and 
you said you didn't think it was an enhanced--that possibly it 
was an enhancement, as Mr. Cummins said. Is that correct? That 
it possibly could be an enhancement?
    Mr. Moschella. What memo? I am confused.
    Mr. Cohen. An escalation. I think that was the term Mr. 
Cummins used, that there could be an escalation of charges. You 
said that wasn't true.
    Mr. Moschella. That is certainly not Mr. Alspin's 
recollection of the conversation. And before you got here, I 
testified in recalling Mr. Cummins' response to Senator Specter 
that he took it as friendly advice, and then others testified 
that they took it as more threatening. What I would say to the 
panel is that the person who was on the other end of the line 
took it as friendly advice and those who were not a party to 
the conversation may have taken it as more threatening.
    Ms. Sanchez. The time of the gentleman has expired.
    Mr. Cohen. Thank you, Madam Chair.
    Ms. Sanchez. Thank you.
    Again, Mr. Moschella, we thank you for your testimony. If 
you could please stay close.
    At this time, I would like to ask the second panel of 
witnesses to please be seated.
    I am pleased to introduce our second panel of witnesses.
    Our first witness, Ms. Carol Lam, served as a U.S. attorney 
for the Southern District of California from 2002 until 
February of 2007. She joined the United States Attorneys Office 
for the Southern District of California as an assistant U.S. 
attorney in 1986 where she was chief of the major fraud 
section. In 2000, she was appointed to be a judge of the San 
Diego Superior Court.
    Our second witness, David Iglesias, was U.S. attorney for 
the District of New Mexico from October 2001 until the end of 
February 2007. Mr. Iglesias was a U.S. Navy JAG officer from 
1985 to 1988. After leaving active duty in 1988, Mr. Iglesias 
continued his career in public service by serving as State 
assistant attorney general special prosecution. He is also a 
reserve captain in the Navy where he serves as staff judge 
advocate for Readiness Command Southwest.
    Our third witness, Daniel G. Bogden, served as U.S. 
attorney for the District of Nevada from October 2001 to 
February 2007. Prior to that, he was chief of the Reno Division 
of the United States Attorneys Office, where he had worked 
since 1990. He also served on numerous task forces and 
Committees, including the Attorney General's Advisory 
Committees on Violent and Organized Crimes and Native American 
Issues and the executive board of the Southern Nevada High 
Intensity Drug Trafficking Area.
    Our fourth witness, Paul Charlton, was U.S. attorney for 
the district of Arizona from 2001 to February of 2007. As U.S. 
attorney, Mr. Charlton served as chairman for the Border 
Subcommittee and chaired the Arizona Antiterrorism Advisory 
Committee. Prior to his presidential appointment, he worked 
since 1991 as an assistant U.S. attorney in the District of 
Arizona.
    Our fifth witness, H.E. ``Bud'' Cummins, was U.S. attorney 
for the Eastern District of Arkansas from 2001 until December 
of 2006. Prior to that, he was chief legal counsel for Governor 
Huckabee. He clerked for U.S. Magistrate John F. Forster, Jr. 
in the Eastern District of Arkansas and later clerked for the 
then chief judge of that district, Stephen Reasoner. He is 
currently working as a consultant for a bio-fuels company.
    Our final witness on the panel, John McKay, served as a 
U.S. attorney for the Western District of Washington from 
October 2001 until January 2007. Prior to that, he was aide to 
Congressman Joel Pritchard. He served as special assistant to 
the director of the FBI while he was a White House fellow in 
1989-1990 and as president of the Legal Services Corporation 
from 1997 to 2001. He also received in 2001 the Washington 
State Bar Association's Award of Merit, its highest honor.
    I would like to extend to each of the witnesses my warm 
regards and appreciation for your cooperation with our 
subpoenas and for your presence here today.
    Given the gravity of the issues that we are discussing 
today and your role in these hearings, and so there is no 
misunderstanding, we would like to ask each of you, as we did 
with Mr. Moschella, to take an oath before you begin your 
testimony. Does anybody object to doing so?
    Thank you.
    [Witnesses sworn.]
    Ms. Lam, will you please proceed with your testimony?

 TESTIMONY OF CAROL LAM, FORMER UNITED STATES ATTORNEY FOR THE 
                SOUTHERN DISTRICT OF CALIFORNIA

    Ms. Lam. Thank you.
    Good afternoon, Madam Chair and Members of the 
Subcommittee. My name is Carol Lam, and until recently I was 
the United States Attorney for the Southern District of 
California.
    In the interest of conserving time, I will be making 
introductory remarks on behalf of all the former United States 
attorneys before you on the panel today, with whom I have had 
the great privilege of serving as a colleague.
    From the following districts: Bud Cummins, Eastern District 
of Arkansas; Paul Charlton, District of Arizona; Daniel Bogden, 
District of Nevada; David Iglesias, District of New Mexico; and 
John McKay, Western District of Washington.
    We thank the Committee and your Subcommittee for your 
courtesy in the manner in which we were subpoenaed to appear 
before you today and we will do our best to answer fully and 
completely any questions posed to us by Members.
    Each of us is very appreciative of the President and our 
home State Senators and Representatives who entrusted us 5 
years ago with appointments as United States attorneys. The men 
and women in the United States Attorneys Office, based in 94 
Federal judicial districts throughout the country, have the 
great distinction of representing the United States in criminal 
and civil cases in Federal court.
    They are public servants who carry voluminous caseloads and 
work tirelessly to protect the country from threats, both 
foreign and domestic. It was our privilege to lead them and to 
serve with our fellow United States attorneys around the 
country.
    As United States attorneys, our job was to provide 
leadership in each of our districts to coordinate Federal law 
enforcement and to support the work of assistant United States 
attorneys as they prosecuted a wide variety of criminals, 
including drug traffickers, violent offenders and white-collar 
defendants.
    As the first United States attorneys appointed after the 
terrible events of September 11, 2001, we took seriously the 
commitment of the President and the attorney general to lead 
our districts in the fight against terrorism. We not only 
prosecuted terrorism related cases but also led our law 
enforcement partners at the Federal, State and local levels in 
preventing and disrupting potential terrorist attacks.
    Like many of our United States attorney colleagues across 
this country, we focused our efforts on international and 
interstate crime, including the investigation and prosecution 
of drug traffickers, human traffickers, violent criminals and 
organized crime figures. We also prosecuted, among others, 
fraudulent corporations and their executives, criminal aliens, 
alien smugglers, tax cheats, computer hackers and child 
pornographers.
    Every United States attorney knows that he or she is a 
political appointee, but also recognizes that the importance of 
supporting and defending the Constitution in a fair and 
impartial manner is important and devoid of politics. 
Prosecutorial discretion is an important part of a United 
States attorney's responsibilities. The prosecution of 
individual cases must be based on justice, fairness and 
compassion, not political ideology or partisan politics. We 
believe that the public we served and protected deserves 
nothing less.
    Toward that end, we also believe that within the many 
prosecutorial priorities established by the Department of 
Justice, we have the obligation to pursue those priorities by 
deploying our office resources in the manner that best and most 
efficiently addresses the needs of our districts. As 
presidential appointees in particular geographic districts, it 
was our responsibility to inform the Department of Justice 
about the unique characteristics of our districts. All of us 
were long-time if not lifelong residents of the districts in 
which we served.
    Some of us had had many years of experience as assistant 
U.S. attorneys and each of us knew the histories of our courts, 
our agencies and our offices. We viewed it as a part of our 
duties to engage in discussion about these priorities with our 
colleagues and superiors at the Justice Department. When we had 
new ideas or differing opinions, we assumed that such thoughts 
would always be welcomed by the Department and could be freely 
and openly debated within the halls of that great institution.
    Recently, each of us was asked by Department of Justice 
officials to resign our posts. Each of us was fully aware that 
we served at the pleasure of the President and that we could be 
removed for any or no reason. In most of our cases, we were 
given little or no information about the reason for the request 
for our resignations.
    This hearing is not a forum to engage in speculation and we 
decline to speculate about those reasons. We have every 
confidence that the excellent career attorneys in our offices 
will continue to serve as aggressive, independent advocates of 
the best interests of the people of the United States, and we 
continue to be grateful for having had the opportunity to serve 
and to have represented the United States during challenging 
and difficult times for our country.
    While the members of this panel all agree with the views 
that I have just expressed, we will be responding individually 
to the Committee's questions and those answers will be based on 
our own individual situations and circumstances. The members of 
the panel regret the circumstances that have brought us here to 
testify today. We hope those circumstances do not in any way 
call into question the good work of the United States 
attorney's offices we led and the independence of the career 
prosecutors who staff them.
    And while it is never easy to leave a position one cares 
deeply about, we leave with no regrets because we served well 
and upheld the best traditions of the Department of Justice.
    Thank you, and we welcome the questions of the Chair and 
Members of the Committee.
    Ms. Sanchez. Thank you, Ms. Lam.
    I know that no other U.S. attorney has prepared written 
testimony. However, if witnesses would like to take a few 
minutes to respond to Mr. Moschella's testimony, you may do so 
now.
    If nobody wishes to have that opportunity, we can just move 
straight into questioning. Is there any interest in responding 
to Mr. Moschella's testimony?
    Mr. Iglesias?
    Mr. Iglesias. May I have a minute to review my notes?
    Ms. Sanchez. Absolutely.
    Mr. Bogden?

 TESTIMONY OF DANIEL BOGDEN, FORMER UNITED STATES ATTORNEY FOR 
                     THE DISTRICT OF NEVADA

    Mr. Bogden. I thank the Committee, and I am also thankful 
for this subpoena, because after going through a very traumatic 
and emotional time for me since December 7 when I got the call 
concerning what was happening with my position, I finally today 
got an explanation as to why I was asked to step down.
    After 16\1/2\ years in the Department of Justice, knowing 
full well that my career with the Department of Justice now is 
essentially over, I relish the 5\1/2\ years I had as United 
States attorney, but it is not a whole lot of solace when I 
realize that the reason why I was asked to step down is so new 
blood could be put in my position.
    My only question and concern of the department is what 
happened to the old blood? Our district has achieved, I think I 
have been an outstanding leader for the district, and I think 
we have accomplished the things that we needed to accomplish. 
We followed through on what the attorney general wanted us to 
do as far as our priorities and our mission, and I have been 
very proud of the way that my staff and my office was able to 
achieve under some very, very difficult conditions.
    I know that as a presidential appointee, I serve at the 
pleasure of the President, and I have been asked to step down 
and I can accept that and I will have no regrets in that 
regard.
    Ms. Sanchez. Thank you.
    Mr. Iglesias?

TESTIMONY OF DAVID IGLESIAS, FORMER UNITED STATES ATTORNEY FOR 
                   THE DISTRICT OF NEW MEXICO

    Mr. Iglesias. Yes. Madam Chair, I would like to just 
briefly--I promise this will not take anywhere near 5 minutes.
    Leadership. 2001, my office prosecuted 5,508 criminal 
defendants. 2006, 6,212 for an increase of 13 percent. 
Immigration cases went from 2,146 in 2001 to 2006 3,825, for a 
78 percent increase. Increase in FTEs was only 7 percent. Cases 
handled per assistant U.S. attorney went from 76 to 100 during 
that 5-year period.
    62 percent of what my office does is immigration related, 
24 percent drugs, 4 percent firearms. We have a 95 percent 
conviction rate.
    These numbers show improvement. Improvement does not happen 
in a vacuum. I respectfully challenge Mr. Moschella's 
characterization of my 5 years as somehow lacking in 
leadership.
    That is all I have.
    Ms. Sanchez. Thank you, Mr. Iglesias.
    Mr. Charlton?

 TESTIMONY OF PAUL CHARLTON, FORMER UNITED STATES ATTORNEY FOR 
                    THE DISTRICT OF ARIZONA

    Mr. Charlton. Thank you, Madam Chair, Mr. Conyers, Ranking 
Member.
    I would like to address very briefly the idea that Mr. 
Moschella spoke about relating to the FBI's taping policy, 
because there is in my mind no small amount of irony in the 
Department of Justice having chosen that as the reason for my 
having been asked to resign.
    I would underscore that I understand full well that I serve 
at the pleasure of the President and am grateful for having had 
that opportunity. But as that is one of the reasons they 
discussed, I wish to make these points.
    First, the United States attorney, unlike many United 
States attorneys in the country, in Arizona, is responsible for 
prosecuting violent crime offenses that take place in Indian 
country, on the Indian reservations, Arizona's 21 Indian 
reservations, in fact the largest Indian reservation in the 
Nation, the Navaho Indian Reservation, is in Arizona. That 
means we are essentially the district attorneys for those 
tribes. We prosecute murders, kidnappings, rapes, child 
molestation cases.
    In child molestation cases in particular, because I am a 
career prosecutor before I had to leave in January. In child 
molestation cases in particular, the best evidence that you 
often receive are the words that come from the molesters' 
mouths, because there is often times very little if any 
physical evidence of the molestation.
    Now, with that as a general umbrella, it is important to 
know that the FBI has a policy that discourages the taping or 
recording of confessions. In the District of Arizona, we have 
lost, we will lose and continue to lose cases, have pled down, 
will plead down and will continue to plead down child 
molestation cases so long as that policy is in place.
    It is the responsibility of the chief law enforcement 
officer in every district to ask law enforcement agencies to 
provide the best evidence so that you can go forward with a 
reasonable likelihood of success of a conviction. I exercised 
that discretion when in February of 2006 I asked all Federal 
law enforcement agencies to, where appropriate, obtain taped 
statements of any confessions that were made by suspects so 
that in particular in Indian country we could better do our job 
in prosecuting those cases.
    After having issued that letter and asking Federal law 
enforcement to implement that program, in March of 2006 I 
received a call from the deputy attorney general's office 
telling me that the deputy attorney general and the director of 
the FBI were displeased with that letter and that they wanted 
me to revoke that policy.
    I indicated that I felt so strongly about this matter, I 
referred them to the fact that we were losing cases or pleading 
down cases because of the inability to obtain taped confession. 
I told them that I would resign before I would withdraw this 
pleading--before I would withdraw this program.
    The deputy attorney general's office asked me not to resign 
over this issue, but instead to submit a request for a pilot 
program citing examples of cases that had been pled down or 
lost because of the FBI's failure to tape confessions, and in 
March of 2006, I did so. I was promised by the deputy attorney 
general's office that there would be an expeditious review of 
this matter and that it would be reviewed favorably.
    I left the job with the United States attorney on January 
30, 2007. I have not received anything from the Department of 
Justice with regards to my request regarding that pilot 
program.
    That is all I have, Madam Chairman.
    Ms. Sanchez. Thank you, Mr. Charlton.
    Mr. Cummins?

TESTIMONY OF H.E. (BUD) CUMMINS, FORMER UNITED STATES ATTORNEY 
              FOR THE EASTERN DISTRICT OF ARKANSAS

    Mr. Cummins. Thank you, Madam Chairman.
    I would just echo what has been said. It was an honor for 
me to serve as a United States attorney. I am very appreciative 
of the President for giving me--for entrusting me with that 
responsibility. I served purely at the pleasure of the 
President and they were entitled to take that job back any time 
they wanted, and I frankly was not entitled to carp about it, 
and I didn't and neither did any of my colleagues up here.
    I would just try to remind everyone, I have a sense that 
there are people sitting in certain circles, which happen to be 
the team I think I am on, that are saying ``don't these guys 
know that they serve at the pleasure of the President? Why are 
they complaining?'' And the fact is, we didn't complain. I 
don't believe any of us complained.
    This became a dispute between Congress and the 
Administration, and the first time I thought we were entitled 
to speak was when, frankly, it became horribly mismanaged in 
the way that they defended their actions to Congress, because 
the statements that were made were just not consistent with the 
facts in my case at first, and after they--and I will say the 
deputy attorney general straightened the facts out in my case. 
And I could have walked away and maybe still be in the inner 
circle of my team.
    But only at that point did I start becoming aware of the 
circumstances surrounding these other individuals, and because 
I was pretty intimately familiar with what had gone on and the 
history of the thing, I frankly was very uncomfortable that 
they were being mistreated and that the statements that were 
being made were being offered up to explain other motivations.
    And I didn't think that was fair to them, because I know 
these people as former colleagues to be very good at what they 
do. That is not to say they had a stranglehold on their job or 
that they thought they would be there forever or that they were 
going to, you know, whine if somebody decided to make a change. 
But they are entitled to not have somebody offer up pretextual 
reasons, if that was what occurred.
    I don't know the truth about why these decisions were made 
in their cases. But, frankly, the only reason I continue to be 
involved in this or outspoken at all is, you know, a great 
concern on my part, and I think many of you share it, that 
people are suggesting that these people were doing something 
wrong that they were never told about and that is why their 
jobs were taken away, and they probably don't deserve to be 
treated like that.
    Ms. Sanchez. Thank you, Mr. Cummins. I appreciate your 
testimony.
    Mr. McKay?

TESTIMONY OF JOHN McKAY, FORMER UNITED STATES ATTORNEY FOR THE 
                 WESTERN DISTRICT OF WASHINGTON

    Mr. McKay. Thank you, Madam Chair.
    I did not seek this forum when I was asked to resign. I did 
resign. I resigned quietly. I didn't speak out publicly until 
the department came forward in sworn testimony and declared 
that my service and by inference the work of the men and women 
whom I led in Seattle and in Tacoma suffered from performance-
related problems. I felt it was my duty then to step forward 
and to contest that and I appear here of course under subpoena, 
along with the rest of the individuals before you.
    It was my privilege to serve as United States attorney. And 
I know that others can serve in that role and that they will 
serve at the pleasure of the President. I am very pleased to 
hear the department change its views regarding my service and 
the work of the men and women in my office and to indicate that 
it is no longer a performance issue but a difference in policy. 
That is a change from prior position of the Department of 
Justice.
    What Mr. Moschella just testified to regarding information 
sharing, I would simply say this: all of my work on the program 
called LInX was fully authorized by the deputy attorney general 
of the United States in a memorandum dated April 2004. At that 
time, the deputy attorney general declared the Seattle 
Washington State LInX program to be the pilot project of the 
Department of Justice.
    That memorandum remained in force and effect past the time 
that I was ordered to resign. I was appointed to chair a group 
of 15 United States attorneys. By then, chairman of the AGAC, 
the Attorney General's Advisory Committee, Paul McNulty, he 
chose me to lead the information-sharing work of the United 
States attorneys.
    Deputy Attorney General McNulty, while serving as United 
States attorney in Virginia, himself led a LInX information-
sharing system of which there were five growing to seven and 
which will I believe continue to grow.
    The EARS evaluation, Madam Chairman, that was referenced by 
Mr. Moschella, in fact all of them relate, I believe, to the 
leadership of the individual United States attorneys and to 
their fulfillment or nonfulfillment of Department of Justice 
priorities.
    I know that in my case, it indicated that my leadership was 
outstanding in every way that I am aware of in that report.
    Finally, as to LInX, the department did leave out the fact 
that in January of this year, I was awarded the Department of 
the Navy's highest civilian award, the Distinguished Public 
Service Award for Innovation in Law Enforcement Leadership. 
That award was given to me because of the LInX program.
    Thank you very much.
    [The joint prepared statement of former United States 
Attorneys follows:]
       Joint Prepared Statement of former United States Attorneys
    Good afternoon Madame Chair, and members of the subcommittee. My 
name is Carol Lam. Until recently, I was the United States Attorney for 
the Southern District of California. In the interest of conserving 
time, I will be making introductory remarks on behalf of all the former 
United States Attorneys before you on the panel today, with whom I had 
the great privilege of serving as a colleague, from the following 
districts: Bud Cummins, Eastern District of Arkansas; Paul Charlton, 
District of Arizona; Daniel Bogden, District of Nevada; David Iglesias, 
District of New Mexico; and John McKay,Western District of Washington. 
We thank the Committee and the Subcommittee for your courtesy in the 
manner in which we were subpoenaed to appear before you today, and will 
do our best to answer fully and completely any questions posed to us by 
Members.
    Each of us is very appreciative of the President and our home state 
Senators and Representatives who entrusted us five years ago with 
appointments as United States Attorneys. The men and women in the 
United States Attorney's Offices in 94 federal judicial districts 
throughout the country have the great distinction of representing the 
United States in criminal and civil cases in federal court. They are 
public servants who carry voluminous case loads and work tirelessly to 
protect the country from threats both foreign and domestic. It was our 
privilege to lead them and to serve with our fellow United States 
Attorneys around the country.
    As United States Attorneys, our job was to provide leadership in 
each of our districts, to coordinate federal law enforcement, and to 
support the work of Assistant United States Attorneys as they 
prosecuted a wide variety of criminals, including drug traffickers, 
violent offenders and white collar defendants. We did that with great 
success. As the first United States Attorneys appointed after the 
terrible events of September 11, 2001, we took seriously the commitment 
of the President and the Attorney General to lead our districts in the 
fight against terrorism. We not only prosecuted terrorism-related 
cases, but also led our law enforcement partners at the federal, state 
and local levels in preventing and disrupting potential terrorist 
attacks. We did that with great success.
    Like many of our United States Attorney colleagues across this 
country, we focused our efforts on international and interstate crime, 
including the investigation and prosecution of drug traffickers, human 
traffickers, violent criminals and organized crime figures. We also 
prosecuted, among others, fraudulent corporations and their executives, 
criminal aliens, alien smugglers, tax cheats, computer hackers, and 
child pornographers.
    Every United States Attorney knows that he or she is a political 
appointee, but also recognizes the importance of supporting and 
defending the Constitution in a fair and impartial manner that is 
devoid of politics. Prosecutorial discretion is an important part of a 
United States Attorney's responsibilities. The prosecution of 
individual cases must be based on justice, fairness, and compassion--
not political ideology or partisan politics. We believed that the 
public we served and protected deserved nothing less.
    Toward that end, we also believed that within the many 
prosecutorial priorities established by the Department of Justice, we 
had the obligation to pursue those priorities by deploying our office 
resources in the manner that best and most efficiently addressed the 
needs of our districts. As Presidential appointees in particular 
geographic districts, it was our responsibility to inform the 
Department of Justice about the unique characteristics of our 
districts. All of us were longtime, if not lifelong, residents of the 
districts in which we served. Some of us had many years of experience 
as Assistant U.S. Attorneys, and each of us knew the histories of our 
courts, our agencies, and our offices. We viewed it as a part of our 
duties to engage in discussion about these priorities with our 
colleagues and superiors at the Justice Department. When we had new 
ideas or differing opinions, we assumed that such thoughts would always 
be welcomed by the Department and could be freely and openly debated 
within the halls of that great institution.
    Recently, each of us was asked by Department of Justice officials 
to resign our posts. Each of us was fully aware that we served at the 
pleasure of the President, and that we could be removed for any or no 
reason. In most of our cases, we were given little or no information 
about the reason for the request for our resignations. This hearing is 
not a forum to engage in speculation, and we decline to speculate about 
the reasons. We have every confidence that the excellent career 
attorneys in our offices will continue to serve as aggressive, 
independent advocates of the best interests of the people of the United 
States. We continue to be grateful for having had the opportunity to 
serve and to have represented the United States during challenging and 
difficult times for our country.
    While the members of this panel all agree with the views I have 
just expressed, we will be responding individually to the Committee's 
questions, and those answers will be based on our own individual 
situations and circumstances.
    The members of the panel regret the circumstances that have brought 
us here to testify today. We hope those circumstances do not in any way 
call into question the good work of the United States Attorneys Offices 
we led and the independence of the career prosecutors who staff them. 
And while it is never easy to leave a position one cares deeply about, 
we leave with no regrets, because we served well and upheld the best 
traditions of the Department of Justice.
    We welcome the questions of the Chair and Members of the Committee. 
Thank you.

Daniel Bogden, Las Vegas, Nevada

David Iglesias, Albuquerque, New Mexico

Paul Charlton, Phoenix, Arizona

Carol Lam, San Diego, California

Bud Cummins, Little Rock, Arizona

John McKay, Seattle, Washington

    Ms. Sanchez. Thank you, Mr. McKay.
    I have been advised that we have votes coming up on the 
House floor shortly. There will be two votes. We will begin the 
questioning--I will begin by recognizing myself first. But when 
in fact they do call votes, we will have to stop and take a 
short recess until Members reconvene and as quickly as we can 
get Members to return, we will continue.
    I would like to begin by recognizing myself for 
questioning.
    Mr. Iglesias, can you tell me briefly how you came to leave 
your position as a U.S. attorney?
    Mr. Iglesias. How much time do I have to answer that 
question?
    Ms. Sanchez. We have got about 5 minutes, sir. You are 
going to have to be very brief.
    Mr. Iglesias. Succinctly, until today I didn't know what 
the official reason was.
    On the 7th of December last year, I was doing some Navy 
duty for a couple of days in Newport, Rhode Island. I was 
flying back. I took a call from Mike Battle, the director of 
the executive office. I hadn't talked to Mike for a while and 
wondered why he was calling. I figured it would be a very good 
call or a very bad call. And my instincts were correct.
    He told me that the Administration wanted to go a different 
way and I was expected to tender my resignation by the end of 
January, and I said, ``Mike,'' because I considered Mike to be 
a friend, I still do. He is a decent guy. I said, ``What is 
going on here? I have received absolutely no warning there was 
a problem. Is there a problem? What is going on?''
    He goes, ``Look, Dave, I don't think I want to know. All I 
know is this came from on high.''
    So I was stunned and I told him that I would probably have 
to ask for some more time. In fact, I asked Deputy Attorney 
General McNulty for a 1-month extension until I could find 
another job and he granted that request.
    Ms. Sanchez. I am just going to interrupt you and jump in 
quickly, because I would like to move along in the testimony.
    You have been quoted in the newspapers as expressing 
concern that your termination was political and that you were 
appalled by two phone calls you received from Members of 
Congress a few months before your dismissal. Can you briefly 
summarize for us those concerns?
    Mr. Iglesias. Yes, ma'am.
    On or about the 16th of October, while I was in Washington, 
D.C., on DOJ business, I received a call from Congresswoman 
Heather Wilson from New Mexico. I called her right back and she 
said she had heard lots about sealed indictments and she says, 
``What can you tell me about these sealed indictments?''
    Well, asking a Federal prosecutor about sealed indictments 
is like asking a research physicist about nuclear drop codes or 
launch codes. It is verboten. So I did not answer her question. 
I was evasive, nonresponsive, and I told her we sometimes did 
it for juvenile cases or national security cases and I could 
tell that she was disappointed by my answer. And she says, 
``Well, I guess I will have to take your word for it.''
    Approximately 2 weeks later I received a call at home from 
Senator Pete Domenici. I had never received a call from Senator 
Domenici at home while I was a United States attorney. 
Initially it was his chief of staff, Steve Bell, who said, 
``Hey, Dave, the senator wants to talk to you. You know, we are 
receiving some complaints about you.''
    And I said, ``Oh, okay.'' And he goes, ``Will you talk to 
the Senator?'' I said, ``Absolutely.''
    He handed the phone over to the senator and Senator 
Domenici wanted to talk to me about these corruption matters, 
corruption cases. These were widely reported in the local 
media. And he wanted to know if they would be filed before 
November. And I gave an answer to the effect I didn't think so. 
And he said, ``Well, I am very sorry to hear that,'' and the 
line went dead. The telephone line went dead.
    So I thought to myself, did he just hang up on me? He 
didn't call back, I didn't call back, but I had a sick feeling 
in the pit of my stomach that something very bad had just 
happened. And within 6 weeks, I got the phone call from Mike 
Battle indicating that it was time for me to move on.
    Ms. Sanchez. Why do you believe that the November deadline 
was important? What was your sense after receiving those two 
phone calls? What caused that sick feeling in the pit of your 
stomach?
    Mr. Iglesias. My sense was that they expected me to take 
action on these widely reported corruption matters and I needed 
to do it immediately.
    The public corruption--you have to understand that my 
office has successfully completed the most--the biggest 
corruption case in New Mexico history. We successfully 
convicted two State treasurers and a couple of other guys for 
public corruption. That retrial had ended in September, and the 
State was full of rumors that there were more pending matters 
and it became the focus of the attack ads from both Patricia 
Madrid, who was challenging Congresswoman Heather Wilson.
    I knew anything I said publicly could be used in an attack 
ad. I distinctly remembered John Ashcroft sitting me in his 
office in 2001 and saying, ``When you come to the Justice 
Department, politics stay at the front door. You do not engage 
in politics, David.''
    I said, ``Yes, sir.''
    So after I got those two phone calls, one asking about 
sealed indictments, the other asking if I was going to file 
anything before November, and the unprecedented nature of 
getting those phone calls, I had the distinct impression that I 
was to take action before November.
    Ms. Sanchez. Thank you.
    Mr. Iglesias, just this past weekend, Senator Domenici sent 
out a press conference claiming that he had complained about 
the U.S. attorney's office performance, particularly on 
immigration issues. What is your response to that, briefly?
    Mr. Iglesias. That is news to me. I had never heard from 
the Justice Department of any complaints by any Member of 
Congress.
    Ms. Sanchez. Thank you.
    I now would like to recognize the gentleman from Utah, Mr. 
Cannon, for 5 minutes.
    Mr. Cannon. Thank you, Madam Chair.
    Ms. Lam, I would like to let you know I watched your 
testimony in the Senate. I think you are very bright and very 
tough. I asked a number of questions to Mr. Moschella about 
your work, largely just to point out the differences between 
you. I don't think there is any question but that there are 
differences. How those sort of sort themselves out on a 
national level is something else.
    But I just wanted to let you know that those are not 
questions to hurt your character or your reputation, which I 
think you have much enhanced in this process, although I did 
find it interesting that you pointed out in your testimony here 
that you decline to speculate as to the reason you--and the 
other U.S. attorneys declined to speculate as to the reasons 
for dismissal. And yet it seems to me that we have just heard 
Mr. Iglesias speculate, pardon me, ad nauseam, about what he 
guesses are the reasons for his dismissal.
    Let me read to all of you a statement from the U.S. 
attorney's manual. All of this comes out of section 1 8.010. 
``All congressional staff or Member contacts with the USAO's, 
including letters, phone calls or visits of any other means, 
must be reported promptly to the United States attorney.
    Ms. Lam, did you report the letters that you received from 
Representative Issa and Senator Feinstein?
    Ms. Lam. Well, in fact I think those letters actually were 
not directed to me in particular, but actually to the attorney 
general. And Senator Feinstein, I may have received a copy of 
one. But there may have been one letter early on that came to 
me and I did convey that to the department.
    Mr. Cannon. And Mr. McKay, did you report on your 
conversations with Mr. Hastings's staff?
    Mr. McKay. Yes, I will. I received a telephone call from.
    Mr. Cannon. No, no, no. Did you report that conversation 
with Congressman Hastings's staff? Did you report that to the 
U.S. attorney general's office?
    Mr. McKay. To the main Justice? No, I did not.
    Mr. Cannon. Why not? Not important?
    Mr. McKay. No, it was important, but I called in my first 
assistant and criminal chief and reviewed the telephone call 
from Congressman Hastings's chief of staff to me following the 
2004 governor's election. And we all three concluded that I had 
stopped the caller from crossing the line into lobbying or 
attempting to influence me.
    Mr. Cannon. So in other words, you mean you kept him from 
going across the boundary which would have made it important 
enough to report?
    Mr. McKay. That was our conclusion, yes.
    Mr. Cannon. Mr. Iglesias, did you report the contacts from 
Ms. Wilson or Mr. Domenici?
    Mr. Iglesias. No, sir.
    Mr. Cannon. Why not? Were they also unimportant, like Mr. 
McKay has just pointed out?
    Mr. Iglesias. They were very important. They were very 
important to my career. Mr. Domenici was a mentor and a friend. 
Heather Wilson was a friend. I campaigned with her in 1998. I 
felt terribly conflicted about having to report it. I 
eventually did.
    Mr. Cannon. When?
    Mr. Iglesias. In late February I reported it. Not to the 
Justice Department, but I made--I started talking to the media 
about being contacted by two Members of Congress.
    Mr. Cannon. Oh, wait a minute. No, no. You started talking 
to the media and you call that reporting?
    Mr. Iglesias. No, sir. That is what you just said.
    Mr. Cannon. What did you say? You said that you reported it 
later. When did you report it?
    Mr. Iglesias. I did not report it to the Justice 
Department.
    Mr. Cannon. But you said earlier that you reported it----
    Mr. Iglesias. To the media.
    Mr. Cannon. You mean you reported it to the media, meaning 
you used that as your mechanism for communicating with the 
Department of Justice?
    Mr. Iglesias. That is correct.
    Mr. Cannon. Is that appropriate?
    Mr. Iglesias. I think that is your job, sir.
    Mr. Cannon. No, no, no. You were a U.S. attorney. Was that 
an appropriate action?
    Mr. Iglesias. Not anymore.
    Mr. Cannon. You are not a U.S. attorney anymore.
    Mr. Iglesias. I am a private citizen, sir.
    Mr. Cannon. Were you a U.S. attorney when you announced 
that? When you went to the press?
    Mr. Iglesias. No, sir. I said two Members of Congress. I 
did not identify them until, in public, today.
    Mr. Cannon. Were you a U.S. attorney when you said you had 
been contacted?
    Mr. Iglesias. Yes, sir. I was.
    Mr. Cannon. Did you in that press conference talk about 
upcoming or public corruption actions that would be coming 
soon?
    Mr. Iglesias. My last press conference was my last day on 
the job as a United States attorney and there were questions 
about pending corruption matters. I indicated that I expected 
there to be a public comment sometime soon.
    Mr. Cannon. Indicating that the public corruption case 
would be handed down?
    Mr. Iglesias. I can't speculate as to what the local media 
thought about the comments.
    Mr. Cannon. Well, it got reported. The local media said, 
``As the investigation of the kickback scheme reportedly 
involving construction of Albuquerque's Metro Court and several 
other buildings, a corruption case rumored to dwarf the Vigil 
and Montoya cases, Iglesias said he expected indictments to 
come up ``very soon.''
    ``But as he prepared for a news conference today in which 
he is expected to focus on a defense of his tenure, Iglesias 
said those indictments would not come under his watch.''
    Did you make those two comments?
    Ms. Sanchez. The time of the gentleman has expired.
    Mr. Cannon. Madam Chair, I know we are going to votes, but 
are we going to have another set of questions, or at least 
maybe a couple of sets?
    Ms. Sanchez. We may have a second round of questions.
    Mr. Cannon. I think the rule allows me 5 minutes for each 
witness, so I will just waive that.
    Ms. Sanchez. Why don't you go ahead and answer the last 
question and after that answer, we will take a short recess in 
order for Members to walk across the Capitol to vote.
    Mr. Cannon. And that question was, did you say those things 
that I have quoted to you to the press.
    Mr. Iglesias. I don't recall using the word indictment. I 
did say that there would be some public announcements as to the 
questions involving the alleged corruption matters.
    And by the way it is Vigil, not Vigil. It is Vigil.
    Ms. Sanchez. Okay. Thank you.
    The Committee will stand in recess while Members go to the 
Capitol to vote. As soon as we can get Members to return here 
after the last vote, we will reconvene the hearing.
    [Recess.]
    Ms. Sanchez. The Subcommittee will be called to order.
    Before we left for votes, we had begun the first round of 
questioning. I believe Mr. Cannon from Utah had finished his 
questioning.
    And I will now recognize the gentleman from Michigan, Mr. 
Conyers, for 5 minutes.
    Mr. Conyers. Thank you, Madam Subcommittee Chair.
    I would like to turn to Mr. McKay for just a moment.
    Mr. John McKay, I have been impressed listening to you 
today and this morning, as a steadfast and professional lawyer. 
Do you know of anything in your performance as U.S. attorney or 
were you advised of anything in your performance that would 
justify a performance-related termination?
    Mr. McKay. No, Mr. Chairman.
    Mr. Conyers. And, of course, it goes without saying that, 
if nobody was told why they were being discharged to begin 
with, that leaves you totally up in the air. This is a colossal 
admission of maladministration on the part of the Department of 
Justice and just happening not to tell anybody why they were 
being terminated, because you serve at the President's 
pleasure. That is quite inadequate to me.
    In fact, the New York Times reported on March 1st of this 
year that you received, Mr. McKay, a positive performance 
evaluation just 1 year ago, in which you were found to be an 
effective, well-regarded, and capable leader. Is that 
essentially what that article said?
    Mr. McKay. I believe that is correct, Mr. Chairman. I did 
receive, I think, the final evaluation, which are called EARS 
evaluations for our office, was finished on September 22nd of 
2006.
    Mr. Conyers. Now, referring to Mr. Moschella's stated 
reason for your dismissal, I understand that you were praised 
by the FBI special agent-in-charge, Laura Laughlin, for your 
work in promoting information-sharing, and called it one of 
your greatest contributions to law enforcement.
    Do you remember that? And is it correct?
    Mr. McKay. I do, and it is correct.
    Mr. Conyers. In addition, sir, I understand that the chief 
judge in your district, the Honorable Chief Judge Robert 
Lasnik, stated, ``This is unanimous among the judges: John 
McKay was a superb U.S. attorney. And for the Justice 
Department to suggest otherwise is just not fair. By every 
measure, the performance of his office improved during his 
tenure.''
    Had you been aware of those comments made about you?
    Mr. McKay. I read them in the paper, Mr. Chairman, and I 
was grateful on behalf of the hard-working men and women of my 
office who really earned those accolades.
    Mr. Conyers. Now, particularly in light of the absence of 
any other reasonable explanation for your termination, I was 
disturbed by a report from the Seattle Times, dated February 
16, 2000, which I will ask unanimous consent to enter into the 
record at this time.
    Ms. Sanchez. Without objection, so ordered.
    Mr. Conyers. The report states, in part, ``One of the most 
persistent rumors in Seattle legal circles is that the Justice 
Department forced McKay, a Republican, to resign to appease 
Washington State Republicans angry over the 2004 governor's 
race. Some believe McKay's dismissal was retribution for his 
failure to convene a Federal grand jury to investigate 
allegations of vote fraud in the race.''
    Now, is it correct that it was your determination, in your 
office, not to convene such a grand jury?
    Mr. McKay. Yes, that is correct.
    Mr. Conyers. And what do you make of the Seattle Times 
story itself, in general?
    Mr. McKay. Well, I would say, Mr. Chairman, that it is very 
true that the controversy surrounding the 2004 governor's 
election was one that had a lot of public debate. I was aware 
that I was receiving criticism for not proceeding with a 
criminal investigation. And, frankly, it didn't matter to me 
what people thought. Like my colleagues, we work on evidence, 
and there was no evidence of voter fraud or election fraud. 
And, therefore, we took nothing to the grand jury.
    Mr. Conyers. Thank you. This article went on to report that 
there were some in Washington State who were upset about that, 
including a lobbyist for the Building Industry Association of 
Washington, who said that he had urged President Bush to fire 
you as a result.
    I understand that, earlier today, you testified in the 
Senate about a call that you received from someone on behalf of 
a Congressman concerning the 2004 governor's race. Who was that 
call from?
    Mr. McKay. That call was from the then-chief of staff of 
U.S. Representative Doc Hastings, Ed Cassidy.
    Mr. Conyers. Please explain when that call was made to you 
and what transpired during the call, please.
    Mr. McKay. Mr. Chairman, I received a telephone call in the 
weeks following the 2004 governor's election. It would have 
been in late 2004, early 2005. He telephoned me and asked for 
information about any action that my office was taking on the 
election, again, a very controversial matter.
    I related to him the information that was publicly 
available at the time, which was that the Seattle division of 
the Federal Bureau of Investigation was taking any information 
that any citizen had about election fraud or election crime 
and, in fact, that my office, in consultation with the voting 
rights section, had done the same, so that anyone with 
information should report it to the bureau.
    That was all I told him, and he then began to advance the 
conversation, and I cut him off.
    Ms. Sanchez. The time of the gentleman has expired.
    Mr. Conyers. Thank you for your testimony.
    Ms. Sanchez. Thank you, Mr. Conyers.
    The Chair now recognizes the gentleman from Ohio, Mr. 
Jordan, for 5 minutes.
    Mr. Jordan. Thank you. Thank you, Madam Chair.
    I want to direct my comments to Mr. McKay, who was just 
speaking. In the testimony that Ms. Lam read for all of you, 
she indicated that, you know, everyone understands you serve at 
the discretion of the President, his pleasure, that you can be 
removed for any reason.
    Of course, it would have been nice if you would have been 
given a reason. I think Mr. Moschella's point was well-taken. 
When you think about how this was done, it could have certainly 
been handled better, and I do sympathize with you in that 
regard.
    Nevertheless, there were reasons given by the department 
and, in your case, specifically, too, I think they talked about 
sentencing guidelines and policy differences.
    I am just going to, in respect of the time we have, focus 
on the policy differences, because tell me if I am right. And 
maybe this is me reading too much into it, but it seems to me 
this scenario was something like this. You had an idea that you 
thought made sense. The folks at the main office didn't maybe--
weren't as enthused about it, maybe the way to say it. And you 
advocated strongly for it, maybe even after they said that, you 
know, this was not a direction we were going to go.
    I can respect that; I think my time in the general assembly 
in Ohio, the governor of my same party and I differed on policy 
decisions all the time. I can remember specifically having him 
yell at me on the phone and hang up. Of course, the main 
difference is, the governor can't get--he can't get rid of me. 
Thank goodness. He would have if he could have, but he 
couldn't.
    So I understand the situation. I appreciate people who 
advocate strongly for what they believe in. But is that a fair 
assessment of what took place in the policy differences reason 
that was given by the department for your being not--or for you 
being let go?
    Mr. McKay. Well, let me say, I never asked for an 
explanation----
    Mr. Jordan. I understand.
    Mr. McKay [continuing]. Of anyone from the Department of 
Justice. I came forward only when it was stated that there were 
performance issues in my office, which is now apparently not 
the position of the Department of Justice.
    On the issue of information-sharing, I was the chairman of 
the information-sharing committee of the United States 
attorneys. It was my job to speak out on information-sharing. 
And I did that.
    And, no, I was never advised that the Department of Justice 
wanted to go in a different direction until they told me that I 
was going in a different direction.
    Mr. Jordan. Not at all?
    Mr. McKay. Not at all.
    Mr. Jordan. Specifically with this, what is it called, this 
particular system, called the--did you call it the LInX system? 
I don't remember.
    Mr. McKay. Yes, Law Enforcement Information Exchange, which 
was a Department of Justice-sanctioned pilot program in 
Washington State, of which I was the leader.
    Mr. Jordan. Is that system still in place? Is it being used 
by the Department of Justice in certain jurisdictions around 
the country?
    Mr. McKay. It is being used at 160 police agencies in the 
State of Washington.
    Mr. Jordan. Relative to the U.S. attorney's district, is it 
being used----
    Mr. McKay. Yes, sir.
    Mr. Jordan. In how many of the 93 districts is it being 
used?
    Mr. McKay. I believe in five locations the pilot programs 
are still running, and it is being expanded to, I believe, 
seven, one in the Washington capital region, and one in the Los 
Angeles area.
    Mr. Jordan. Well, then explain to me then why the 
department felt you were too--I mean, I guess I am not seeing 
the connection there.
    Mr. McKay. Well, I wouldn't try to speculate on the 
connection, and I think you should ask the Department of 
Justice, because they never explained it to me, Congressman, 
and I am just being forthright about that.
    Mr. Jordan. Talk to me, then, about the second one, the 
sentencing guidelines. You were not meeting those criteria that 
the department had specified that you needed to--you know, 
goals that you needed to get to.
    Mr. McKay. Thank you. You know, it is very interesting now, 
today, for the first time, hearing that their differences with 
me were policy reasons, but I would say, even as to policy 
reasons, one would expect that they would have raised that 
policy issue with me or my office. And this is the first time I 
have heard from anyone at the Department of Justice about 
issues regarding about sentencings and sentencing ranges.
    I would point out, Congressman, that what they are 
referring to is sentences imposed by United States district 
judges, which fall inside or outside of the sentencing ranges. 
That has nothing to do with the policy positions of my office. 
Those are sentences imposed by judges in the Western District 
of Washington.
    They had no differences with me, to my knowledge, on cases 
brought, the types of indictments brought by my office. In 
fact, I think the conclusion of their own evaluation team was 
exactly the opposite.
    Mr. Jordan. And how many of those decisions that you 
referenced did you appeal?
    Mr. McKay. Congressman, we are only allowed to appeal with 
the approval of the Justice Department, and I couldn't tell you 
the number that were appealed, but all appeals are approved by 
the solicitor general at Main Justice, not by our offices.
    Ms. Sanchez. The time of the gentleman has expired.
    The Chair now recognizes the gentleman from Georgia, Mr. 
Johnson, for 5 minutes.
    Mr. Johnson. Thank you, Madam Chair.
    Ms. Lam, when Mr. Moschella testified, he stated that there 
were three ways that equated to performance issues with U.S. 
attorneys that underlied their resignation request, and those 
were policy priorities and management. And he said, for you, 
that you failed in terms of your priorities.
    Specifically, he said, on immigration prosecutions, you 
come from a border district, and your numbers, in his words, 
don't stack up. And your office came in 91 out of 93 districts, 
but isn't it a fact that, during the last 2 months that data 
was available, which would be June and July of 2006, that the 
Southern California judicial district ranks second in the 
number of immigration prosecutions? Isn't that a fact?
    Ms. Lam. I think that may be true, and that may be 
referring particularly to alien smuggling offenses. And we have 
to distinguish between criminal aliens and alien smuggling.
    Mr. Johnson. And isn't it a fact that, in 2005, 97.7 
percent of the immigration cases referred to the Southern 
California U.S. attorney's office were prosecuted?
    Ms. Lam. I couldn't tell you the figure. I am sorry.
    Mr. Johnson. Well, those are the figures that I have here, 
and I don't think that there is any problem with the veracity 
of those figures.
    And he also cited that your priorities as to violent 
crime--he mentioned the anti-gun program and said that your 
prosecutions were at the bottom of the list. But isn't it a 
fact that, in 2004, the last year that available data is 
available to us, that your office ranked ninth out of 94 
judicial districts in the country in the percentage of ATF 
cases referred that were prosecuted?
    Ms. Lam. Again, I am not familiar with those particular 
statistics. I am sorry, Congressman, but I will say this: My 
concern was making sure that gun prosecutions in the Southern 
District of California were being handled responsibly.
    Project Safe Neighborhood is an important initiative. It 
was being handled responsibly, because it is a Federal and 
State initiative. And the gun prosecutions in our district were 
being handled extremely responsibly by the D.A.'s office. There 
was only one D.A.'s office in San Diego County, and they were 
handling those gun prosecutions very, very well. There were no 
complaints from State and local officials.
    Mr. Johnson. Okay, thank you. And now your office has been 
involved and gained notoriety, did it not, in the prosecution 
of former Congressman Randy ``Duke'' Cunningham?
    Ms. Lam. Yes, sir.
    Mr. Johnson. And he entered a plea of guilty and received a 
sentence equating to about 8 years----
    Ms. Lam. That is correct.
    Mr. Johnson [continuing]. If I recall correctly, and then 
there was an ongoing investigation related to that corruption 
probe, is that correct?
    Ms. Lam. That is correct.
    Mr. Johnson. Do you surmise that your forced resignation 
would have anything to do with that investigation?
    Ms. Lam. Well, as I indicated in my opening statement, I am 
not here to surmise, Congressman.
    Mr. Johnson. Well, thank you. I appreciate your 
professionalism, and I guess it is up for someone up here on 
this panel to make the summarizations of what may have 
occurred.
    But the same thing seems to have happened, Mr. Charlton, in 
your situation, where they said Mr.--the gentleman who 
testified, Mr. Moschella, said that you fell down, in terms of 
policy.
    And he mentioned specifically the taping of the FBI 
interviews, and he said that that seemed to go against DOJ 
policy. And I guess he didn't understand exactly why you felt 
like you needed taped interviews of confessions and admissions 
from suspects in child molestation, as well as other cases, so 
that you could help create a better track record, as far as 
your successful prosecutions go.
    But yet, at the same time, it appears that you were 
involved in a public corruption investigation, as well, having 
to do with an investigation of Congressman Rick Renzi of 
Arizona. Is that correct?
    Mr. Charlton. Congressman Johnson, were I still the United 
States attorney, my response would be, it is our policy to 
neither confirm nor deny where there is an ongoing 
investigation of any individual. And I think, with all due 
respect and intended respect, it is probably the most 
appropriate thing for me to do, is to respond in the same way 
to that question, sir.
    Mr. Johnson. Well, let me just----
    Ms. Sanchez. The time of the gentleman has expired.
    Mr. Johnson. Thank you.
    Ms. Sanchez. Thank you.
    The Chair now recognizes Mr. Keller, the gentleman from 
Florida, for 5 minutes.
    Mr. Keller. Thank you, Madam Chairwoman.
    And, Ms. Lam, let me ask you a few questions. You are a 
Bush appointee?
    Ms. Lam. Yes, sir.
    Mr. Keller. And did you serve out your full 4-year term of 
your appointment as U.S. attorney?
    Ms. Lam. Yes, sir, the first 4-year term, yes.
    Mr. Keller. And you serve at the pleasure of the President, 
and you can be removed for any reason or no reason at all, is 
that correct?
    Ms. Lam. Yes, sir.
    Mr. Keller. Okay. Do you have any evidence whatsoever that 
your role in prosecuting Duke Cunningham is the reason you were 
asked to resign?
    Ms. Lam. I was not looking for evidence; I don't have any 
indication one way or the other.
    Mr. Keller. I know you weren't looking for it, but do you 
have any evidence, that you have at all, that you were asked to 
resign----
    Ms. Lam. No, sir.
    Mr. Keller. Okay.
    Well, let me just say a few things, and I want to be fair 
to you. And your office is to be commended for successfully 
prosecuting that case. And you and the career prosecutors 
deserve a lot of credit for your work. If you never did 
anything the rest of your life, you will go down in the books 
as having a monumental achievement.
    Did the Department of Justice headquarters ever discourage 
you from bringing the case against Congressman Cunningham?
    Ms. Lam. No.
    Mr. Keller. In fact, didn't the Department of Justice 
assist your office in trying to attain documents from Congress 
in the Cunningham case?
    Ms. Lam. In the Cunningham case? I am not sure if that was 
true in the Cunningham case. It could be; I am not sure.
    Mr. Keller. Okay. Now, in your testimony, you said you were 
given little or no information about the reason for the request 
for your resignation. Is that right?
    Ms. Lam. That is correct.
    Mr. Keller. And I assume you got the same call that the 
others have referenced on December the 7th of 2006 from Mike 
Battle, telling you that you are going to be asked to resign?
    Ms. Lam. Yes.
    Mr. Keller. And at that time, he gave you no reasons?
    Ms. Lam. That is right.
    Mr. Keller. Okay. Did you ask him for any reasons?
    Ms. Lam. Yes.
    Mr. Keller. And what did he say?
    Ms. Lam. He said, ``I don't know.''
    Mr. Keller. Thank you.
    You heard earlier from Mr. Moschella that he believes the 
Department of Justice talked to you regarding concerns that 
they had relating to the prosecution for gun crimes. Did you 
recall ever speaking to anyone from the Department of Justice 
regarding any concerns they had relating to your prosecutions 
for gun-related crimes?
    Ms. Lam. I spoke to Jim Comey when he came out to visit our 
office, I believe in 2003. It may have been 2004, but I think 
it was 2003.
    Mr. Keller. Okay. Did you ever have any conversations with 
anyone from the Department of Justice regarding any concerns 
that they may have had relating to the need to have more 
prosecutions for alien smuggling?
    Ms. Lam. I had a conversation with the other southwest 
border U.S. attorneys and the current deputy attorney general 
about our need for more resources to prosecute immigration 
along the border.
    Mr. Keller. Okay. Were you, in fact, aware prior to being 
asked to resign that Border Patrol agents, and Members of 
Congress from both parties, and the attorney general himself 
had raised concerns that, in their opinion, you weren't doing 
enough to prosecute alien smugglers?
    Ms. Lam. I did not hear from the Department of Justice 
about the testimony you referenced today from the attorney 
general. I knew that there were concerns by the Border Patrol 
union, although I was in constant contact with Border Patrol 
management, which disagreed in large part with the union's 
position.
    Mr. Keller. Okay. You recall back in February 2nd of 2004 
receiving a letter from Darrell Issa to you, concerning the 
need to prosecute more alien smugglers, particularly someone 
named Antonio Amparo-Lopez?
    Ms. Lam. Yes.
    Mr. Keller. And then you replied to him a month later, on 
March 15, 2004, essentially saying that you have referred this 
matter to the Department of Justice?
    Ms. Lam. That is our requirement, yes.
    Mr. Keller. Okay. Were you aware back in September 23 of 
2005 that 19 Members of Congress had sent a letter to President 
Bush regarding concerns they had relating to the need for more 
prosecutions in your area of alien smugglers?
    Ms. Lam. I was aware of that letter, yes.
    Mr. Keller. Okay. I think you briefly mentioned this, but 
when I went to San Diego in January of 2006, I talked to Border 
Patrol agents who were concerned about the need for more 
prosecutions. And I brought that up with Attorney General 
Gonzales. You have already had my question and answer to him.
    Is your testimony that, after that hearing, when he gave 
that, nobody from DOJ followed up with you to talk about the 
need to step it up, in terms of prosecuting more?
    Ms. Lam. No.
    Mr. Keller. Okay. One final thing, some folks on the other 
side have suggested that maybe you should be appointed as 
outside counsel to help with Cunningham-related cases or other 
corruption probe cases. And I understand you already have a 
pretty good job in the private sector. Are you seeking to be 
outside counsel for those cases?
    Ms. Lam. No, that request was made without my knowledge and 
without consultation with me.
    Ms. Sanchez. The time of the gentleman has expired.
    Mr. Keller. Thank you.
    Ms. Sanchez. The Chair now recognizes the gentlewoman from 
California, Ms. Lofgren, for 5 minutes.
    Ms. Lofgren. Thank you, Madam Chair.
    And before going into my questions, I would like to ask 
unanimous consent to insert in the record a letter from Senator 
Dianne Feinstein to the attorney general, along with the 
response that she received from Will Moschella, on behalf of 
the Department of Justice.
    Ms. Sanchez. Without objection, so ordered.
    [The material referred to follows:]
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Ms. Lofgren [continuing]. Several people here today.
    Ms. Lam, Mr. Moschella and, earlier this week, the 
Department of Justice told Members that it was the low numbers 
of immigration and gun cases that really was the cause of your 
need to be replaced and that you should address the President's 
priorities.
    Were you specifically ever told what was expected of you, 
what the priorities of the President were?
    Ms. Lam. I certainly knew what the priorities were. I was 
never specifically told that if I was not enforcing them it 
would cost me my job, no.
    Ms. Lofgren. So no one ever came and said, ``You need to do 
X, Y and Z, in terms of prosecution, or else we have got a big 
problem here''?
    Ms. Lam. No.
    Ms. Lofgren. And not about the immigration question, 
either?
    Ms. Lam. The immigration question--I have never made any 
secret of this, that, given the high numbers on the border, 
that my view is the way to tackle them--we can best tackle the 
problem is to attack the problem at its root, as close to the 
root as we can get, and that is going to be bigger prosecutions 
that are going to take more resources and result in lower 
filings.
    Ms. Lofgren. Let me ask you this. It has been referenced, 
the letter sent by our colleague, Congressman Issa, along with 
then-Representative Cunningham and 12 other Republican members 
of the California delegation to the attorney general, then 
Ashcroft, asking him to require, as I understand it, a zero-
tolerance stance against smuggling and a prosecution in every 
case.
    Did the attorney general implement such a policy in 
response to that letter?
    Ms. Lam. No.
    Ms. Lofgren. If he had implemented a policy such as that, 
did your office have the resources to actually implement such a 
policy?
    Ms. Lam. It would be impossible. There are more than 
180,000 people arrested on the California border with Mexico 
every year. I know in Phoenix, it is almost 600,000 people. I 
don't think any office in the country has ever prosecuted more 
than 5,000 or 6,000 felonies a year.
    Ms. Lofgren. No, prosecutors, like everyone in Government, 
have to make decisions about resource allocations. We all do, 
and we don't have limitless resources. Since immigration is a 
focus of the department's criticism of you today, can you 
explain to us how you went about prioritizing your immigration-
related prosecutions in your district?
    What were you trying to achieve? Who did you prosecute? Why 
did you take the approach?
    Ms. Lam. Absolutely. When I first arrived in the office in 
2002 as the United States attorney, I noted that our filings 
were very high. However, a large percentage of our filings were 
being brought against low-level defendants, such as nannies who 
were returning to the country after going home for the weekend 
in Mexico and presenting false documents at the border.
    These people were being prosecuted as felons and then given 
time served and released, the same for first-time, low-level 
foot-smugglers. It was a judicial revolving door, but no U.S. 
attorney wanted to be known as the U.S. attorney who lowered 
filings.
    The result was, the office was not able to handle any 
higher-level investigations and prosecutions. So I made the 
decision that an adjustment had to occur. We studied the 
problems very, very closely. It took a couple of years to 
implement. We are now seeing the fruits of it.
    And the letter you have just entered into the record, 
ma'am, was authored by Will Moschella, only 3 months before I 
received a phone call on December 7, to Senator Feinstein, 
defending our approach of seeking longer sentences against the 
worst offenders on the border.
    I think it is a legitimate, valid approach and one that I 
had every indication that the department was supporting.
    Ms. Lofgren. I am just about out of time. So the 
department--you saw the letter drafted by Mr. Moschella to 
Senator Feinstein, essentially endorsing the approach you were 
taking. And did you ever hear contrary to that letter, that he 
didn't agree with the process you have just outlined?
    Ms. Lam. No, ma'am.
    Ms. Lofgren. Has the department ever indicated concern to 
you that your district was suffering a higher crime rate than 
others and that your office and your prosecution policies were 
deficient?
    Ms. Lam. Congresswoman, in fact, in December of 2006, the 
department sent a team of people out to study why the city of 
San Diego had the lowest violent crime rate in 25 years. They 
had met with me, and with the police chief, and with the 
sheriff, and had a very good meeting, trying to figure out why 
we had such a successful, low rate of crime.
    Ms. Lofgren. My time is up. I would just like to say how 
impressed I am by the professionalism of all the witnesses. 
Thank you very much.
    Ms. Sanchez. The time of the gentlelady has expired.
    The gentleman from Massachusetts, Mr. Delahunt, is 
recognized.
    Mr. Delahunt. Yes, I would like to just echo the statement 
by my colleague from California. I spent 22 years as the 
elected State's attorney, district attorney in the greater 
Boston area, and I want to commend all of you for what is your 
obvious professionalism.
    I have to tell you, what really strikes me is the lack of 
consultation on the part of the leadership at the Department of 
Justice, with each and every one of you. If there were 
problems, I would submit that it was incumbent on that 
leadership to provide you guidance and to have the kind of 
face-to-face discussion that I believe just simply is 
reflective of good management.
    And in this case, this is a case study of mismanagement, 
poor management. You have been disrespected, and I think this 
is a very sad commentary on the operation of the Department of 
Justice. The longer I listen, the more outraged I become.
    But in any event, let me apologize--and I think I speak for 
most Members on this Committee, that your obvious 
professionalism is to be acknowledged. And let me, at least for 
myself, extend my gratitude for the contribution you have made 
to the United States of America.
    Having said that, there are some questions here that I will 
address to Mr. Charlton. And, Mr. Charlton, let me say, if they 
didn't take your advice in the policy, in terms of taping 
confessions of child molesters, they ought to reconsider it. 
They ought to reconsider it.
    I think we can all agree that child molestation is a crime 
that is particularly offensive and totally--well, let me just 
let it sit there.
    But maybe we ought to have another hearing, Madam Chair, 
upon that policy and why, particularly what the problem with 
the Department of Justice is, in terms of adopting what makes 
common sense, I would dare say, to any prosecutor, to 
prosecutor, in terms of preserving evidence so that those who 
molest our children can be incarcerated.
    Mr. Charlton, isn't it correct that, on December 7th, 
Michael Battle, director of the executive office for the United 
States attorneys, called to notify you that you had been fired.
    Mr. Charlton. Yes, sir.
    Mr. Delahunt. Is it further correct that Mr. Battle refused 
to tell you whether the firing was related to your performance 
or to the performance of the office?
    Mr. Charlton. Yes, sir.
    Mr. Delahunt. Did you then make several additional calls to 
senior Department of Justice officials to try to find an 
explanation for the termination?
    Mr. Charlton. Yes, sir.
    Mr. Delahunt. Did you finally reach a senior official who 
told you that your firing was not performance-related?
    Mr. Charlton. I reached a senior official who gave me a 
different explanation, yes, sir.
    Mr. Delahunt. Well, what did he say to you?
    Mr. Charlton. He told me that this was being done because I 
raised not only the fact that I had been asked to resign, but 
that others had been asked to resign. He indicated to me that 
this was being done so that other individuals would have the 
opportunity to ``touch base'' as United States attorney before 
the end of the President's term.
    Mr. Delahunt. Okay. And with whom did you speak? Who was 
that official?
    Mr. Charlton. With William Mercer, the acting associate 
attorney general.
    Mr. Delahunt. I thank you. And with that, I yield back my 
time.
    Ms. Sanchez. Thank you.
    The Chair now recognizes the gentleman from Arizona, Mr. 
Franks, for 5 minutes.
    Mr. Franks. Thank you, Madam Chair. Madam Chair, I would 
like to yield to the distinguished Ranking Member, Mr. Cannon.
    Mr. Cannon. I thank the gentleman.
    Ms. Lam, just one little detail I would like to follow up 
on. Is your office, the office you have left, competent to 
handle the prosecution of these two other indictments that were 
recently filed? Do you have any concerns about the competency?
    Ms. Lam. Under the current leadership, I have no concerns.
    Mr. Cannon. Thank you.
    And, Mr. McKay, we talked earlier about the phone call you 
had from the chief of staff for Mr. Hastings. And you indicated 
or agreed with me, I think, when I said that you thought it was 
not that important. But it occurred----
    Mr. McKay. No, I did not say that. I am sorry, sir.
    Mr. Cannon. I think what you said was that--I said, so this 
just didn't arrive at the level of importance to report it?
    Mr. McKay. That is correct, yes.
    Mr. Cannon. Okay, thank you. But as I thought about it 
later, I realized that, in the Senate, you--I think it was the 
Senate; maybe it was here--you said that it was a matter of 
concern such that you called your staff together.
    Mr. McKay. Yes, that is correct.
    Mr. Cannon. So it did raise some concerns with you. Did you 
talk about whether or not you should call DOJ and report it?
    Mr. McKay. Yes, I did.
    Mr. Cannon. And what did your staff suggest?
    Mr. McKay. We all three agreed that I had stopped Mr. 
Cassidy before he crossed the line, and that it was not 
necessary to report it, and that we would leave it where it 
was.
    Mr. Cannon. Great, thank you. And I think that was highly 
consistent with what you said earlier.
    Did you call Mr. Hastings and suggest to him that his chief 
of staff had gotten close to the line?
    Mr. McKay. No, Congressman, I did not. I believe I made 
that very clear to Mr. Cassidy.
    Mr. Cannon. That he was getting close to the line?
    Mr. McKay. Yes.
    Mr. Cannon. So I guess what I am going at here, you felt 
you communicated that what he was doing was getting close to 
being inappropriate, but you didn't feel any need to suggest 
that Mr. Hastings had a problem that he needed to correct 
within his office?
    Mr. McKay. No, Congressman, if it had gotten to that level, 
I would have been calling the Department of Justice about the 
call. You see my point, his call was disconcerting to me, and 
it was enough of concern that I called my two senior advisers 
together.
    But, no, I think Mr. Cassidy was very capable of reporting 
it to his own boss, and I left it at that.
    Mr. Cannon. When people do embarrassing things sometimes, 
they don't tell their bosses. Where is my staff? I will remind 
them. No, I am sorry. That is a little light, I suppose.
    The policy, though, doesn't talk about whether it is 
important or not. It talks about any contact. I would just 
leave that with you on the record.
    But one of the issues--and, actually, I sort of missed 
this. I am sorry, but I am just following up on someone else's 
question. How many sentencing appeals were you recommending 
that the department authorize? And this goes back to an earlier 
conversation, I think, with Mr. Jordan.
    Mr. McKay. I couldn't give you the number of appeals that 
we recommended to the solicitor general. I can tell you one is 
one that I handled myself, which was the appeal of the sentence 
imposed on the millennium bomber, Ahmed Ressam, a matter which 
I personally handled.
    And I did recommend to the solicitor general that his 
sentence be appealed to the Ninth Circuit.
    Mr. Cannon. Then it is like an isolated case. Were you 
recommending that more sentences would be appealed, or was that 
an issue?
    Mr. McKay. Congressman, at some point it became the policy 
of the Department of Justice--and I believe it became law for 
us--to report to the department sentences imposed by district 
judges that fell outside the sentencing guidelines. And my 
office assiduously did that to Main Justice and to the 
solicitor general's office.
    So I can't tell you the number of appeals we recommended, 
but there were many appeals in my office.
    Mr. Cannon. Was that reporting essentially a recommendation 
to appeal, in your----
    Mr. McKay. No, as I indicated earlier, of course, the 
sentences are imposed by the district judges, not by 
prosecutors. And so, many times, the judge may impose a 
sentence below the guideline range not recommended by us. And 
the procedure, which was followed by me and my office, was to 
report sentences outside the sentencing guidelines to Main 
Justice, which we did.
    Mr. Cannon. In that process, did you talk to anybody about 
whether or not you should affirmatively appeal those? Or did 
you take that report as sufficient?
    Mr. McKay. Well, I took the report as sufficient. But we 
did, on certain appeals, make recommendations that they would 
be appealed to the Ninth Circuit, including the Ressam case.
    Mr. Cannon. Okay, so you would make that recommendation, 
and then you would be authorized or directed by Main Justice to 
go ahead with an appeal?
    Mr. McKay. Yes, the solicitor general has complete 
authority over whether matters are appealed to the circuit 
courts by U.S. attorneys.
    Mr. Cannon. Great. Thank you. I see the time is about over, 
and I would certainly look forward to a second round.
    Ms. Lam. I am sure I am breaking some rule somewhere, but I 
did want to add something----
    Mr. Cannon. It is my time. You are not breaking a rule.
    Ms. Lam. Very good. You asked whether my office could 
competently handle the continuing prosecutions, and I do 
believe they can. However, I do think it is important to 
emphasize that, in sensitive prosecutions, high-profile 
prosecutions, it is very helpful to have a confirmed United 
States attorney, because of the many interactions with the 
Department of Justice and the many sensitive issues involved.
    Ms. Sanchez. The time of the gentleman has expired.
    The gentleman from North Carolina, Mr. Watt, is recognized 
for 5 minutes.
    Mr. Watt. Thank you, Madam Chair.
    Mr. McKay, let me just clarify one thing. Did the gentleman 
who called you from Representative Hastings's office indicate 
where he was calling at the direction or on behalf of the 
Congressman, or did he indicate either way?
    Mr. McKay. He did not. I believe when I responded to him, I 
told him that I was certain that neither he nor the Congressman 
was in the process of lobbying me.
    Mr. Watt. Okay.
    Mr. Bogden, I think you got your call on December 7, 2006, 
from Michael Battle, the director of the executive office of 
the United States attorneys, telling you that your services 
were not going to be needed any longer, is that correct?
    Mr. Bogden. That is correct, sir.
    Mr. Watt. And did you get any explanation on that occasion 
as to whether this termination was related to your performance 
or to the performance of your office?
    Mr. Bogden. He just told me that the Administration wanted 
the office to go in another direction. When I asked him further 
what direction that was, he could give me no further details. I 
pressed him a little further, and he admitted that he wasn't 
part of the decision process, but he had been given the 
marching orders to make the call.
    I asked him, since I wanted an explanation as to why I had 
received a call, who I could speak with that could give me some 
information, he said he thought about that himself, and if he 
had received such a call, he would reach out to the deputy 
attorney general, Paul McNulty.
    Mr. Watt. And did you subsequently talk to any senior 
Department of Justice officials to get any additional 
explanation?
    Mr. Bogden. Yes, I talked to a couple of them. I attempted 
to reach out to Deputy Attorney General McNulty. He hadn't 
returned my call that day, so I reached out to the acting 
associate attorney general, Bill Mercer, and I had a 
conversation with Mr. Mercer.
    I let him know how disappointed I was and how upset I was, 
because I really felt that our office was going in the right 
direction and we were working very hard and achieving much. He 
then gave me an explanation.
    He said that the Administration has a very short 2-year 
window of opportunity, concerning the United States attorneys 
positions, and that this would be an opportunity to put others 
into those positions so they could build their resumes, get an 
experience as a United States attorney, so that, for future 
possibilities of being Federal judges or other political-type 
positions, they would be better enhanced to do so.
    Mr. Watt. So, in effect, you were told that you were being 
fired to make way for some other Republican Party loyalist or 
political up-and-comer who the Administration wanted to pad 
their resume?
    Mr. Bogden. That is what it seemed to me to be.
    Mr. Watt. And who was it that told you that?
    Mr. Bogden. That was the acting associate attorney general, 
William Mercer.
    Mr. Watt. Okay. Had you been engaged in an investigation of 
Governor Jim Gibbons at that point?
    Mr. Bogden. I just have to say, as having been a United 
States attorney, that matters concerning investigation, I don't 
think it is appropriate for me to either confirm or deny that 
there was any such investigation.
    Mr. Watt. Okay. Can you tell us briefly what your EARS 
report, released in 2005, indicates about your performance?
    Mr. Bogden. Well, I had an EARS report. The evaluation was 
done March 3 to March 7, 2003. The EARS report, the final 
version, came out August 4, 2004. It was a very positive 
report. It was one of those--a good report, concerning our 
relationships with law enforcement, the things we were able to 
accomplish, things like that.
    I think also received another letter, June 2, 2005, which 
was another letter from the executive office, in this case, the 
director of EOUSA, at that time Mary Beth Buchanan. She had 
high praise for our office in a number of areas. Those areas 
included terrorism, white-collar crime, drug programs, our 
OCDETF program, what we were doing to combat gun violence.
    She noted that our district excelled in presenting the 
message of zero tolerance of official corruption, as was 
evidenced by our public corruption investigations. She also 
commented on our outstanding work in organized crime and crimes 
in Indian country.
    Mr. Watt. And is it true that, under your leadership, your 
office was one of the top offices in the country, in terms of 
numbers of immigration cases, drug cases, gang cases, child 
exploitation cases, and gun cases prosecuted?
    Mr. Bogden. And I think also identity theft there, sir, 
all----
    Mr. Watt. Identity theft, also.
    Ms. Sanchez. The time of the gentleman has expired.
    Mr. Watt. Thank you, Madam Chair.
    Ms. Sanchez. Thank you, Mr. Watt.
    The gentleman from Tennessee, Mr. Cohen, is recognized for 
5 minutes.
    Mr. Cohen. Thank you, Madam Chairman.
    Mr. Bogden, I would just like to ask you one question, kind 
of an aside. I see that the Justice Department asserted you 
were fired because you resisted an obscenity task force. And I 
know what happens in Las Vegas stays in Las Vegas, what is 
obscenity in Nevada?
    Mr. Bogden. Sir, that is the first I have heard that that 
was any type of issue. That certainly wasn't anything that was 
relayed to me by either EOUSA or the Department of Justice.
    As far as what we have been able to do, we put together a 
Child Exploitation and Obscenity Initiative back in July of 
2005. When we put that initiative into effect, we have been 
able to increase our child exploitation prosecutions five-fold, 
so I am kind of surprised to hear that there would be anything 
contesting what we were doing in the areas of either child 
exploitation or obscenity.
    Mr. Cohen. Thank you, sir.
    I know a little bit more about the area around the Delta. 
And, Mr. Cummins, Congressman Berry speaks very highly of you, 
as to people throughout Memphis and the Delta.
    You were appointed in 2001 by President Bush, is that 
correct?
    Mr. Cummins. Yes, Congressman. And while we are talking 
about your neighboring districts, I would like to recognize 
that my home State, home district, Congressman Vic Snyder is in 
attendance and, I may be presumptuous, but I think he is mostly 
here because of our friendship and out of concern for what is 
happening to me and I would just like to publicly say that I 
appreciate him.
    We don't happen to be in the same political party. In fact, 
I was his opponent in 1996 for Congress. But he works hard and 
represents our district honorably and I appreciate his 
attendance here today.
    Mr. Cohen. How did you make it--the gentleman said you made 
it known you didn't want to finish up your term.
    Who in the Justice Department did you allegedly tell that 
to or did you not?
    Mr. Cummins. The short answer is I didn't. I mean, 
honestly, Jody and I, my wife, had kind of decided that I had 
probably passed up some opportunities already during my time as 
United States attorney and if another one came along, we ought 
to give it serious consideration.
    A lot of our colleagues, maybe a third or more, had already 
moved on since 2001, when most of us started. And so I don't 
think I made any secret of that.
    I didn't know that you were supposed to keep all--anyway, I 
think what he is referring to are press reports that came out 
about comments I made after they had already called me and told 
me I was fired, when I did start kind of mentioning to the 
press that I might be moving on the future.
    But, frankly, that was part of kind of my attempt to be 
discreet and kind of conceal the fact that they had handled it 
like they had handled it.
    I chose to try to present a story like I would have 
expected them to handle it, which would have been more of a 
consultative process and treated me like I was a member of the 
team and called me and said, ``Hey, we would like to put this 
other guy in your district,'' and I am pretty sure I would have 
done whatever they had asked me to do.
    That isn't what happened and I was trying to kind of soften 
it up so that it wouldn't create a controversy. Obviously, I 
failed in that.
    But I didn't know all these other dismissals were going to 
take place and had they not, it probably would have gone 
unnoticed.
    Mr. Cohen. Kind of like the Cardinals when they call 
somebody up from Little Rock, they bring them off the farm 
team.
    Mr. Cummins. That is right.
    Mr. Cohen. Let you know when you are being relieved.
    Mr. Cummins. That is right. It is a good analogy. The 
manager can take the pitcher off the mound anytime he wants. It 
is kind of nice if you get a pat on the rump and if you have 
been throwing strikes, they shouldn't go to the press 
conferences and say you were throwing balls. But they can take 
you off the mound anytime they want.
    Mr. Cohen. On February 20, 2007, you received a letter, I 
believe, from Mr. Michael Elston.
    Mr. Cummins. I am not aware of a letter.
    Mr. Cohen. A call, excuse me, a call.
    Mr. Cummins. Yes, sir.
    Mr. Cohen. And what was the gist of that call?
    Mr. Cummins. Well, an article had appeared in the 
``Washington Post.'' I mean, I think the call, in short, was 
stimulated by whatever was said in the article had touched some 
nerves and there were one or more people at the department at 
that were irritated that some of us were, at that point, 
responding to media inquiries, because at that point, they had 
put forward these explanations about the dismissals that we 
were concerned about and didn't think were fair.
    And I had a conversation with him about it. It was pretty 
congenial. But at the end of the conversation, there was one 
part of that I felt like I really--I struggled with it, because 
I felt like it was a confidential conversation between Mr. 
Elston and I.
    But I also kind of thought he wanted me to tell the others, 
and so I passed that part. I conveyed to the people at this 
table that that conversation had taken place.
    Mr. Cohen. And you suggested it might be a major escalation 
of the conflict if they testified. Could it have been a surge?
    Mr. Cummins. I am not prepared to present my Iraq war plan 
today, but it was--I am reading from the e-mail I sent him and 
there was a part where I said that when the subject of 
testifying in Congress came up, that it was obvious that he 
viewed that as a major escalation in the controversy.
    What I was trying to convince him of was that nobody at 
this table was driving the controversy, that all of us had 
attempted to take our orders, whether we thought they were good 
orders or bad orders, and go off quietly, that really this was 
about Congress calling the department to task on the decisions 
they made and it was our reaction to the department's position 
to try and defend these decisions.
    And, frankly, from our perspective, they could have told 
you all it was none of your business. You might not have liked 
that, but we probably would have been fine with that and we 
would have continued to go away quietly.
    It was only when they gave the explanations they gave that 
we--and I was trying to convince them of that, that we weren't 
trying to stir the controversy, that we turned down voluntary 
invitations to testify and that I didn't really necessarily 
anticipate that there was going to be anymore motivation to 
stir the pot.
    But he made it clear that, in his view, that the department 
had been very restrained in their treatment of the issue and 
the disclosures they had made to defend their decisions and 
that if there was a perception that we were somehow trying to 
stir the pot, that it was likely that we would have to--we, and 
really I am talking about my colleagues more than me, because I 
had been separated out at that point--but that they might 
suffer some embarrassment because of additional disclosure that 
would be necessary to defend the department's position.
    Some people have tried to characterize that as a threat. 
Mr. Moschella said I characterized it as "friendly.'' But I 
said, ``It could have been either. I am not going to 
characterize for you.''
    That was the nature of the discussion. It was pretty 
friendly, but I thought the point was there and I really felt 
like if I didn't tell these other people that and then they 
went out and gave an interview the next day and the world fell 
in on them, that I would feel bad about that.
    So I felt like they needed to know this comment was made, 
go make your own decisions about what you do next, but you need 
to know the score and that is how I saw it.
    Mr. Cohen. Thank you. My time is up. I want to thank you 
for your comments.
    Mr. Cummins. I am sorry for the long answer.
    Mr. Cohen. That is fine.
    I would like to ask the Chairwoman if we couldn't submit 
this, with unanimous consent, this copy of this e-mail, to make 
it part of the record.
    Ms. Sanchez. Without objection, so ordered.
    The Chair would also like unanimous consent to include in 
the record several commendations for the work that Mr. Iglesias 
did in his time as U.S. attorney in New Mexico.
    Without objection, so ordered.
    We had considered possibly doing a second round of 
questions. I understand this has probably been a very long day 
for you.
    We still have one other panel of witnesses to hear 
testimony and to question.
    Mr. Cannon. Madam Chair?
    Ms. Sanchez. Yes.
    Mr. Cannon. I think that I have a right to 5 minutes for 
each witness and I thought that we had an understanding that we 
would have a second round.
    I would ask unanimous consent that I be given 5 more 
minutes to question the witnesses and then if you would like to 
dismiss, I would not object to that.
    Ms. Sanchez. In light of the fact that you have been 
indulgent in granting our Members additional time, we will 
yield to you 5 additional minutes to ask any follow-up 
questions.
    After that, we will dismiss this panel and call up the 
third panel of witnesses.
    Mr. Cannon. Thank you, Madam Chair. It actually has been an 
extraordinarily long day.
    Ms. Sanchez. Without objection, it will be so ordered.
    Mr. Cannon is recognized for 5 minutes.
    Mr. Cannon. Thank you. And this has been an extraordinarily 
long day.
    Mr. Cummins, I just want to remind you that leadership 
changes in parties and we hope you don't change parties. That 
is not a suggestion that you run against Mr. Snyder or anything 
like that.
    Mr. Cummins. I appreciate the friendship I have received 
from my Democrat friends, but I have no intention of changing 
parties at this time.
    Mr. Cannon. Good. Let me just say that you all have been 
put in a difficult position. Mr. Moschella I think apologized 
pretty profoundly for the difficulty.
    That said, I think things have been handled differently by 
different of you all individually.
    I just have to say I am a little astonished by some of the 
things that have been said and, unfortunately, whether you said 
in the Senate--I am sorry, in the other body, I think is the 
correct way to do it, if we are going to be rule oriented here.
    And so let me just ask, Mr. Iglesias, I think over in the 
other body, you talked about loyalty being a two-way street and 
said you were conflicted about calls from Mr. Domenici and Ms. 
Wilson and you didn't report those calls.
    I think you said that here, as well.
    Mr. Iglesias. Yes, sir.
    Mr. Cannon. You mentioned, I think, there, I am not sure if 
you said here, that Senator Domenici hung up on you. Is that 
correct? Would you like to add to that?
    Mr. Iglesias. Sir, that is close. I think what I testified 
this morning was that the line went dead and I wasn't sure if 
he hung up or what, but I took that as he hung up.
    Mr. Cannon. Great. And we talked earlier about how you 
didn't report those contacts and you didn't report them because 
you were conflicted, because you had some loyalty to these two 
people.
    I get the sense that perhaps Senator Domenici actually 
recommended you for the job.
    Mr. Iglesias. That is correct, sir.
    Mr. Cannon. And when you said that loyalty goes two ways, 
you felt that you were justified in lashing back because he had 
abandoned you.
    Mr. Iglesias. Well, as I ruminated during the month of 
December and January, I tried to piece together what had 
happened and I started hearing in Albuquerque that in early 
January, they were already asking for names for people to 
replace me.
    This is shortly after the December 7 call.
    Mr. Cannon. So you felt abandoned I think is the point, 
right?
    Mr. Iglesias. I think that is a good characterization.
    Mr. Cannon. Now, you heard Ms. Lam's testimony when she 
spoke for all of you that you were not going to speculate.
    Did you agree with that statement by her that you are not 
going to speculate about the reasons for your being asked to 
resign?
    Mr. Iglesias. That is correct, sir, and there is no way 
that I could prove beyond a reasonable doubt what happened.
    Mr. Cannon. But you are speculating. You speculated in the 
Senate. You speculated here, right?
    Mr. Iglesias. Just putting forward facts that happened to 
me.
    Mr. Cannon. No, no, no, you are speculating about 
conclusions relating to those facts and I think you have 
characterized them as your conclusions, have you not?
    Mr. Iglesias. Sir, I really try not to speculate.
    Mr. Cannon. I think the term you used was ``connecting the 
dots.'' Doesn't that mean speculation?
    You were the one that did the connection. Nobody came up to 
you and said, ``I was talking to Senator Domenici and I am 
going to connect the dots for you, because you are not smart 
enough to figure it out yourself.''
    You did the connection, right?
    Mr. Iglesias. I attempted to reconstruct what had happened.
    Mr. Cannon. Which was speculative.
    Mr. Iglesias. Would you please define speculation?
    Mr. Cannon. Well, Ms. Lam used speculation. I am suspecting 
that you agreed to Ms. Lam's testimony, but you apparently have 
not been able to contain your concerns.
    I will tell you that I know Mr. Domenici. He is really 
smart and really tough and I just don't believe your 
characterization of how the phone conversation happened.
    I don't think he would have called you and done something 
that should have been reported to the Department of Justice, 
which you felt, now you say you felt should have been reported, 
but were conflicted and didn't do it.
    You also conveyed yourself, I think, in the Senate, that 
this happening as like a Pearl Harbor. Is that fair?
    Mr. Iglesias. My telephone call was on Pearl Harbor Day, 
sir.
    Mr. Cannon. And did you feel like this was a Pearl Harbor 
Day or was it just the fact that it was----
    Mr. Iglesias. On a microscopic level, yes, sir.
    Mr. Cannon. Well, I would suggest that it is microscopic.
    And then you need a month, you are running a big office, 
but you needed another month in the office to provide a 
transition in your life. I take it that is because you were not 
living providently.
    Mr. Iglesias. Sir, there are very few good legal jobs in 
Albuquerque, unlike Washington, D.C.
    Mr. Cannon. Let me just ask one final question.
    You announced an indictment in the press. Do you think that 
the lawyer for the defendant in that case should bring or can 
bring a motion based upon you prejudicing his case?
    Mr. Iglesias. I am not sure what a criminal defense 
attorney would do. It is debatable, sir.
    Mr. Cannon. But you violated policy that is intended to 
avoid that kind of outcome, is it not, the case?
    Mr. Iglesias. I am not willing to concede that, sir, no.
    Mr. Cannon. Well, you have got a few seconds left. Why 
don't you tell me what it meant?
    Mr. Iglesias. I don't understand your question, sir.
    Mr. Cannon. You announced an indictment in the press, 
something you characterized in the case of Ms. Wilson as being 
like a nuclear scientist being asked to divulge the secrets of 
a code for blowing up a bomb, and yet you announced it in the 
press.
    That doesn't strike you as bad?
    Mr. Iglesias. No, sir, I didn't. My last press conference, 
I avoided the use of the term ``indictment.'' I was talking 
about matters that were commonly reported in the Albuquerque 
market.
    Ms. Sanchez. The time of the gentleman has expired.
    Mr. Cannon. God bless you, you were the U.S. attorney and 
you talked to the press about it.
    I yield back.
    Mr. Delahunt. Madam Chair?
    Ms. Sanchez. Yes, Mr. Delahunt?
    Mr. Delahunt. I am going to ask unanimous consent for a 
minute.
    The inference that was drawn by the Ranking Member I think 
is an inaccurate one.
    Ms. Sanchez. Without objection, so ordered.
    Mr. Delahunt. I would like to address this to anyone on the 
panel, but my memory is that the attorney general of the United 
States, U.S. attorneys and district attorneys call press 
conferences to announce indictments.
    Am I missing something or is that the policy of the United 
States Government and the Department of Justice?
    Mr. Cannon. Would the gentleman yield?
    Mr. Delahunt. I yield.
    Mr. Cannon. Mr. Iglesias was the U.S. attorney at the time 
he called the press conference and he didn't announce 
indictments. He announced that there were going to be 
indictments in the near future, a very different thing.
    Mr. Delahunt. Well, the statement that you made, 
Congressman, was regarding the announcement of an indictment. 
You didn't explain that it was about indictments that would be 
forthcoming.
    But just so that there is no confusion, I think it is very 
important that we note for the record that it is good policy, 
sound public policy to announce indictments, whether it comes 
from a U.S. attorney's office or from the Department of Justice 
or from a State prosecutor.
    Ms. Sanchez. The time of the gentleman has expired.
    Mr. Keller. Madam Chairwoman, I ask unanimous consent for 
30 seconds.
    Ms. Sanchez. The gentleman is recognized for 30 seconds.
    And I will note this will be the last time that we 
recognize Members who have already had an opportunity to ask 
questions.
    Mr. Keller. Thank you.
    I just want to wrap up this proceeding on behalf of all of 
us, I think, on both sides of the aisle and just let you know 
that we are very empathetic, because we realize that getting 
fired from your job is sort of the capital punishment of the 
workplace.
    You all have come together today and exposed yourself to a 
lot of criticism by waiving your privacy rights, and yet you 
have acted, all of you, very professionally and we appreciate 
that.
    And you probably did deserve a little better than an icy 
call on December 7, 2006 saying you are fired without given a 
reason and I am glad that you got----
    Ms. Sanchez. The time of the gentleman has expired.
    Mr. Keller [continuing]. That apology today from the 
Department of Justice and we wish you all the best in your 
future endeavors.
    Ms. Sanchez. I want to thank all of our witnesses. We know 
that it is taken you a considerable amount of effort to get 
here to Washington, D.C. to testify.
    We understand it has been a very long day. I think you have 
been very helpful in shedding some light on what happened 
factually in terms of your requested resignations.
    You have been professional in your answers and, again, I 
can't thank you enough for being here today to testify.
    You are now excused.
    And very shortly we will call the third panel of witnesses.
    Thank you, again.
    At this time, I would ask our third panel of witnesses to 
please be seated.
    I am pleased to introduce our third panel of witnesses.
    Our first witness is Representative Darrell Issa, first 
elected to Congress in 2000. Congressman Issa represents the 
49th District of California and currently serves on the House 
Committee on the Judiciary. He also serves on House Foreign 
Affairs Committee and the House Government Reform Committee.
    Our second witness, the honorable Asa Hutchinson, is a 
former U.S. attorney for the western district of Arkansas. He 
served as a U.S. Congressman for the 3rd District of Arkansas 
from 1996 to 2001 and was a Member of the House Committee on 
the Judiciary.
    In 2001, he was appointed administrator of the Drug 
Enforcement Administration. In 2003, he was confirmed as the 
under secretary for border and transportation security for the 
Department of Homeland Security and served in that capacity 
until January of 2005.
    Our third witness, John Smietanka, served as a U.S. 
attorney for the western district of Michigan and as the acting 
U.S. attorney for the northern district of Illinois. He also 
served as the principal associate deputy attorney general for 
the Department of Justice. He is currently in private practice 
in southwest Michigan.
    Our fourth witness, Atlee Wampler III, is a former U.S. 
attorney for the southern district of Florida. He also served 
as a special attorney for the Department of Justice, organized 
crime and racketeering section, and the attorney in charge of 
the Miami Strike Force, organized crime and racketeering 
section, for DOJ. He is currently the president of the National 
Association of Former U.S. Attorneys.
    Our fifth witness, George Terwilliger, is also a former 
U.S. attorney, having served in the district of Vermont. He 
also served as the deputy attorney general for the Department 
of Justice and as the acting attorney general of the United 
States. He is currently in private practice.
    Finally, our sixth witness, P.J. Halstead, has served as a 
legislative attorney in the American Law Division of the 
Congressional Research Service of the Library of Congress since 
1998. In this capacity, Mr. Halstead is one of CRS's primary 
analysts on constitutional law and Congressional oversight 
issues.
    I want to thank you all for your willingness to participate 
at today's hearing.
    Now, it is my pleasure to ask my colleague, Congressman 
Issa, to proceed with his testimony.

 TESTIMONY OF THE HONORABLE DARRELL ISSA, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Mr. Issa. Thank you, Madam Chair and Ranking Member.
    I will place my formal statement in the record and, 
hopefully, since I have such a group of knowledgeable people on 
the U.S. attorney's office, I will limit my testimony to one 
U.S. attorney, the U.S. attorney for the southern district of 
California.
    As you have already heard here today, many, many Members of 
Congress, but, to a certain extent, led by my efforts, because 
I was one of the Members, I was the Member of the Judiciary 
closest to the border and in the district that she oversaw, had 
deep concerns for a very long time about enforcement against 
human smugglers at the border.
    We voiced that in the appropriate ways that I believe this 
Committee needs to do it and this body, the U.S. House of 
Representatives needs to do it.
    We are, after all, the oversight over the administration of 
the laws we pass and the money that we appropriate.
    The President and the Vice President were the only two 
members of the Administration elected. They asked for and had 
confirmed a number of individuals, thousands of them, and they 
set policy and they ran for reelection on that policy.
    And there were two hallmarks of the policy. One was that, 
in fact, they said they would secure the border, before 9/11 
and especially after 9/11.
    Secondly, President Bush has lobbied long and hard this 
body and particularly this Committee for a comprehensive guest 
worker program. In the period 2004-2005-2006, I and my 
colleagues sent numerous different letters and this Committee 
held hearings in which our concerns about the enforcement in 
the San Diego region was voiced.
    And I would ask unanimous consent that my records of those 
letters be included in the record.
    Mr. Conyers. [Presiding.] Without objection, it will be 
included.
    [The material referred to follows:]
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Issa. Thank you, Mr. Chairman.
    This was not something that was done in the dark of night. 
This was not done by whispers or political activities. This was 
done on a bipartisan basis.
    And already submitted to the record is Senator Feinstein's 
request to get to the bottom of the questions of low 
enforcement, of one category, that of human traffickers, not 
the 180,000 who try to cross the border every year, but those 
who, in fact, profit from the trafficking of human beings, 
those who are known to leave human beings in the desert to die 
or in the back of trucks to die.
    My investigation and activity began when a 21-time 
offender, Mr. Lopez, who has been repeatedly mentioned here, 
was not prosecuted, 20 times caught with illegals, 20 times 
sent home, 20 times not prosecuted. On the 21st time, it was 
brought to my attention by the Border Patrol.
    And I would also include in the record just a little 
picture, this is what we call the ``wall of shame'' that the 
Border Patrol keeps along the border and they do so because 
these are people who they caught who were released and they 
were caught as traffickers, repeat offender traffickers.
    It is demoralizing to the Border Patrol and it flies in the 
face of what this Congress has spent billions of dollars trying 
to do, which is make America safe and selectively prosecute the 
worst of the worst, and people who traffic in human beings are 
the worst of the worst.
    Now, before September 11, we didn't have the other 
component, which is if we can't prosecute those who would 
traffic a human being, who might be from Mexico or New Zealand 
or Afghanistan or Iraq or Syria, then how do we separate those 
who simply, as was said earlier, are nannies coming back from a 
weekend home from those who, in fact, would do us harm?
    That is the reason that, in a very straightforward fashion, 
I lobbied to change the behavior of U.S. Attorney Carol Lam and 
I was disappointed repeatedly not to be able to do so.
    I would also include for the record the statement by--she 
has already left and I apologize for that--Ms. Lofgren, who, in 
fact, last summer, on July 5, the day after Independence Day, 
in fact, particularly wanted to know why this policy was in 
effect and how outrageous it was that we didn't have, and I 
will paraphrase it, ``a zero tolerance policy at the border.''
    She did so while we were overseeing the border with the 
border chief and a day on which Mr. Sensenbrenner and I had met 
with the U.S. attorney and she was concerned.
    Now, that was before the election. It is now after the 
election, but nothing has changed.
    This Committee has a lot of things to look at. The story of 
Carol Lam is, in fact, that this is an incredibly talented U.S. 
attorney, a gifted prosecutor, who ran an office that did a lot 
of big things well.
    But I would ask this Committee to put into perspective, not 
all seven people who were terminated, but Carol Lam, she had a 
border region. She was repeatedly asked by this Committee and 
by our Senator to do better on the prosecutions of those who 
traffic in human beings.
    She didn't do so and my only question for this Committee is 
not why was she let go, but why did she last that long?
    [The prepared statement of Mr. Issa follows:]
 Prepared Statement of the Honorable Darrell Issa, a Representative in 
                 Congress from the State of California
    Chairwoman Sanchez, Ranking Member Cannon, thank you for allowing 
me to join you today to share with you some of my experiences 
surrounding this hearing.
    I recognize that this hearing is about the removal of seven U.S. 
Attorneys, and the concerns of some members that President Bush will 
use an appointment process stipulated within the Patriot Act 
reauthorization. In my view, my colleagues with such concerns are 
putting the cart before the horse, because we have little reason to 
believe the President will abuse this temporary appointment procedure. 
To the contrary, the Administration has given me assurances that it 
plans to work with the Senate to fill the U.S. Attorney positions 
recently vacated.
    Beyond the legislation at hand, it seems the other key issues are 
whether or not U.S. Attorneys serve at the pleasure of the President, 
and beyond this point, whether or not any foundation existed for their 
removal. To the first issue, U.S. Attorneys absolutely serve at the 
pleasure of the President. The President and the Vice President are the 
only elected officials within the Administration, and every political 
appointee is an at-will employee. Period. Significantly, the U.S. 
Attorneys' testimony states this point quite clearly. I will focus my 
testimony on the second issue, whether or not any foundation for 
removal existed, in my experience and knowledge of the US Attorney 
whose jurisdiction covered my congressional district.
    First of all, I would like to recognize Carol Lam for the many 
positive achievements during her service as U.S. Attorney for the 
Southern District of California. It would be difficult to overstate the 
importance of her successful prosecution of Congressman Randy ``Duke'' 
Cunningham and other corrupt public officials in San Diego.
    U.S. Attorneys, however, are given a myriad of responsibilities, 
and are expected to prosecute many different criminal activities. 
People have taken notice of U.S. Attorney Lam's prosecution of corrupt 
officials, and hopefully this has scared straight any would be 
profiteers of the public trust. That being said, I am afraid that 
criminal cartels that traffic in human beings are taking notice that 
they are less likely to be prosecuted in the San Diego Sector than 
other areas along the Southwest border.
    Last June, Senator Feinstein wrote to Attorney General Gonzales to 
share her similar concern that Carol Lam's failure to prosecute most 
alien smugglers would endanger the lives of Border Patrol agents and 
bring even more violent smuggling syndicates to the California border 
region.
    I first wrote to Carol Lam about border crimes more than three 
years ago after learning from a reporter that her office had declined 
to prosecute an alien smuggler apprehended while transporting a car 
loaded with undocumented immigrants near Temecula, California, in my 
district. The smuggler, Antonio Amparo-Lopez, had attempted to escape 
the arresting Border Patrol agents and, upon capture, the Border Patrol 
learned that the smuggler had 21 known aliases and had been arrested 
and deported more than 20 times without ever having been prosecuted.
    I sought information from sources in the Border Patrol, and others 
in the law enforcement community, about what was really happening with 
border prosecutions. Border Patrol agents were forced to accept a 
reality in which smugglers knew what they could get away with. A 
smuggler knew he could drive a van full of illegal immigrants across 
the border without fear of any consequence other than being sent back 
to Mexico to try again. Smugglers who were American citizens faced no 
consequences at all.
    Border Patrol agents and others within the Department of Homeland 
Security would privately bring my office information about the problems 
with prosecutorial guidelines put into effect by U.S. Attorney Carol 
Lam created in their efforts to secure the border near San Diego from 
organized smuggling cartels. In May 2006, my office released to the 
press a memo prepared by a senior source within the Border Patrol that 
detailed how Carol Lam's policies adversely affected efforts to stop 
smuggling syndicates. According to the memo, only 6 percent of 289 
smuggling suspects caught by Border Patrol agents from the El Cajon 
station east of San Diego in the 12 months ending in September 2004 
were prosecuted.
    In August of 2006, former Judiciary Committee Chairman Jim 
Sensenbrenner and I had consecutive meetings with the Border Patrol's 
San Diego Sector Chief Darryl Griffen and Carol Lam about this subject. 
While we attempted to persuade the U.S. Attorney to focus more 
resources in a way advocated by Federal law enforcement officers 
charged with securing the border, we left the meeting unconvinced that 
U.S. Attorney Lam was prepared to direct more resources toward the 
prosecution of actual foot soldiers for the smuggling cartels.
    For three years, I and other members of Congress wrote Ms. Lam, the 
U.S. Attorney General, and the President asking that more be done to 
prosecute those who traffic in human beings. Only someone who believes 
that trafficking human beings isn't a serious crime could look at Carol 
Lam's record and see an area that does not deserve legitimate 
criticism.
    My efforts to bring accountability and justice to the foot soldiers 
of smuggling organizations has not been limited to sending letters to 
the Administration. I have successfully secured both funding 
authorizations and appropriations to bring more prosecutorial resources 
to focus on alien smugglers. Last summer, these efforts began to pay 
dividends as the Department of Justice announced the addition of 35 new 
prosecutors to border region offices such as San Diego who will focus 
exclusively on alien smuggling and other border crimes.
    I fully intend to continue my work, on a bipartisan basis, with 
California's senators and my colleagues in the House of Representatives 
to ensure that our next U.S. attorney focuses on both border crimes and 
other critical cases here in the San Diego area.

    Mr. Conyers. The time of the gentleman has expired.
    And we now greet a former colleague, Asa Hutchinson. We 
welcome you to the Judiciary Committee panel.
    Mr. Cannon. Mr. Chairman, before Mr. Hutchinson begins, I 
know that Mr. Issa has been here all day. I understand he is 
willing to answer questions.
    Could we poll the panel to see if anybody has questions for 
Mr. Issa? Otherwise, I think it is typical to let a Congressman 
leave if there are no questions for him.
    Mr. Conyers. We do have some that would wish to question 
him, but I would be willing to excuse Darrell Issa anyway if he 
has a sufficiently urgent reason to leave, and I would be 
willing to do it without----
    Mr. Issa. Mr. Chairman, although I took a redeye to get 
back here, I am willing to stay as long as necessary to meet 
the requirements of the Committee.
    If there is a short group of questions that I could answer 
quickly, great. Otherwise, I certainly would understand and 
move with regular order.
    Mr. Conyers. If I could break order, then why don't I just 
recognize the gentleman from Georgia for the questions he would 
like to put to you know.
    Mr. Johnson. Thank you, Mr. Chairman.
    Congressman, you have focused a lot on this alleged 
smuggler, Mr. Antonio Amparo-Lopez, who you say had been 
arrested and deported 20 times without ever having been 
prosecuted.
    When did those arrests and deportations occur?
    Mr. Issa. They occurred over, I believe, a 7-year period 
prior to the first complaint, which was in 2004.
    Although whether or not he committed other crimes, there is 
no question that he was not eligible to be where he was and he 
was deported 20 times before that.
    Mr. Johnson. When you say deported, do you mean that there 
were actually some deportation proceedings begun by the INS?
    Mr. Issa. No. We have a procedure when you are not entitled 
to be in the U.S., when you are an illegal, and the gentlemen 
to my left can do a much better job of answering the details.
    You can voluntarily, you can waive the claim of various 
rights.
    Mr. Johnson. So in short, there was no prosecution of the 
gentleman because he was deported administratively, is that 
correct?
    Mr. Issa. That is correct. Twenty times he was in the U.S. 
illegally and was let go back to his home country.
    Mr. Johnson. And that was administrative, not a decision 
that was made by the U.S. attorney's office, isn't that 
correct?
    Mr. Issa. It was correct that--no, no, I take that back. 
No, he had been put up for prosecution. Prosecution had been 
refused previously and he was let go.
    The Border Patrol doesn't make a decision on prosecution.
    Mr. Johnson. And how many times had the U.S. attorney's 
office in the San Diego district refused to prosecute Mr. 
Lopez.
    Mr. Issa. I don't have that figure today. I have to be 
quite candid, the 21st time was when the Border Patrol had him 
on the top of the wall of shame and asked me if we could do 
something before he left the country again.
    Mr. Johnson. So pretty much after 20 times of being 
administratively deported, a complaint was made that the U.S. 
attorney's office should commence criminal prosecution against 
this gentleman.
    Mr. Issa. That is correct.
    Mr. Johnson. All right, thank you.
    Ms. Sanchez. [Presiding.] Mr. Keller is recognized.
    Mr. Keller. Thank you.
    Mr. Issa, you were here today. I want to start with the 
alleged Duke Cunningham connection.
    You saw that I asked Will Moschella from DOJ a question and 
he testified under oath that Ms. Lam's dismissal had absolutely 
nothing to do with her pursuing Duke Cunningham.
    When I asked Ms. Lam, under oath, if she had any evidence 
whatsoever that her dismissal was really in her prosecution of 
Duke Cunningham, she said, under oath, ``No.''
    I just want to point out a timeline, based on letters that 
you sent that totally confirms that. The Duke Cunningham 
scandal was broken by your local paper, ``San Diego Union 
Tribune,'' on June 12, 2005, and yet we have a series of 
letters from you 14 months before that date, calling the 
attention of the problem to Ms. Lam that she was not 
prosecuting certain alien smugglers who had been arrested 
repeatedly.
    In fact, your first letter is February 2, 2004. Is that 
correct?
    Mr. Issa. That is correct.
    Mr. Keller. And it makes common sense, but you obviously 
had no idea on February 2, 2004 that your colleague, who had 
just been reelected over and over again, 14 months from now, 
was going to be involved in some big scandal. Is that correct?
    Mr. Issa. I am quite certain none of us here or on the dais 
had any idea.
    Mr. Keller. And you aren't the only one to raise those 
concerns. There were 19 Republicans that signed a letter, but 
there were also a couple of Democrats who raised the same 
concerns you did.
    Would you talk about that for a little bit?
    Mr. Issa. Senator Feinstein has been an excellent Senator 
for California and she has shown an interest in an immigration 
reform policy, but at the same time, an assurance that we 
should make our borders secure, and she had written a letter 
that almost mimicked the exact same concerns I had and perhaps 
even generated by the other part of the enforcement process, 
the Border Patrol, being frustrated.
    Mr. Keller. Let me just say, in closing, that I thought Ms. 
Lam today was very professional and handled herself well. She 
deserves a lot of credit for the Duke Cunningham prosecution 
and will go down in the books for that outstanding prosecution.
    But you, too, deserve a lot of credit, Darrell. I went to 
San Diego myself and spent a week in January of 2006, riding 
around with Border Patrol agents, and they reported to me the 
same frustrations that you had first been calling to the 
attention of everyone for 2 years, that they had arrested the 
same exact people 20 different times, that these people were 
bringing over about 10 illegal aliens per shot at 1,500 bucks a 
pop, making 15 grand a week, bring them in 10 times a year.
    Next thing you know, that is 150 grand and they were not 
being prosecuted at all and they were so frustrated because 
they were risking their lives to arrest folks and they may be 
shot and then they would turn them over and not be prosecuted.
    So I just want to commend you. You were ahead of the curve 
on that and I can just say, from having been there firsthand, 
you knew what you were talking about.
    Mr. Issa. Thank you, Mr. Keller. And I think you point out 
the one great flaw that we tried to get changed in the southern 
district and that was that the U.S. attorney's policy of less 
than dozen, no prosecution, had become known.
    So it created a guaranteed get-out-of-jail free or never go 
to jail and that, of course, enhanced a particular type of 
smuggling.
    I want to say one other thing, which is that I happen to 
believe that Carol Lam is a terrific prosecutor and when it 
came to big cases, she did extremely well.
    It really is a question of balance. Our office felt that we 
needed to have a little more balance on human smuggling and we 
endeavored to do so and we really regret that we didn't get 
that during the period of time in which it might have helped in 
Federal policy, including a guest worker program and a national 
reform which this President lobbied for.
    Mr. Keller. I thank you for your leadership.
    Madam Chairman, yield back the balance of my time.
    Ms. Sanchez. Thank you.
    If there are no further questions for Mr. Issa, you may be 
excused.
    And we will now move on to Mr. Hutchinson.
    Mr. Hutchinson, would you please proceed with your 
testimony?

      TESTIMONY OF THE HONORABLE ASA HUTCHINSON, A FORMER 
     REPRESENTATIVE IN CONGRESS FROM THE STATE OF ARKANSAS

    Mr. Hutchinson. Thank you, Madam Chairman, Ranking Member 
Cannon, Mr. Chairman of the full Committee, Chairman Conyers, 
colleagues, former colleagues, I should say.
    It is good to be back in the home of the Judiciary 
Committee, where I served 1997 to 2001. I have enormous respect 
for this Committee, the work of the Members of this Committee 
and for its history, as well.
    I am here today testifying as a former United States 
attorney and I have served in that capacity in the 1980's under 
former President Ronald Reagan, but I have also worked with the 
United States attorneys both as administrator of the Drug 
Enforcement Administration, including the current batch of U.S. 
attorneys, as well as in homeland security, looking at drug 
enforcement, working with them on immigration enforcement and 
customs enforcement, as well.
    And the purpose of my testimony is, obviously, to answer 
any questions, but also to talk about the importance of the 
U.S. attorney and serving at the pleasure of the President in 
terms of carrying out the President's mission and I certainly 
support that totally.
    The U.S. attorneys who have previously testified, I worked 
with most of those while I was head of the DEA and at Homeland 
Security and I have the greatest respect for them.
    But I also understand the issue here today is not 
necessarily the performance as simply the question that they 
serve at the pleasure of the President of the United States and 
whenever you serve in that discretionary role, the President 
can ask for a U.S. attorney's resignation, as has happened many 
times during the course of history.
    But I would just make a couple points before I turn the 
microphone back.
    First, except for the U.S. attorney, except for the U.S. 
attorney, the Federal prosecutors are career attorneys who are 
not necessarily committed to the priorities of the 
Administration. And without the full support of the U.S. 
attorney, the President, through the attorney general, would 
have little impact on the strategic priorities of the Federal 
justice system.
    Any new Administration could choose from a laundry list of 
priorities that range from environmental enforcement to Federal 
gun laws to fighting terrorism and the priorities change with 
the necessity of the time and with the goals of the 
Administration.
    With limited resources, the U.S. attorney sets the 
prosecutorial guidelines, among a long list of Federal 
agencies, and they invariably change with different Presidents, 
but they cannot change without the commitment of the 
presidentially-appointed United States attorney.
    So it is essentially that the U.S. attorneys serve at the 
pleasure of the President and any U.S. attorney enjoys being 
able to say, as a mark of his or her authority, ``I serve at 
the pleasure of the President of the United States.'' And as a 
necessary part of that power and authority goes with the 
logical inference that the President can request that 
individual's resignation.
    And it would be unacceptable for a U.S. attorney to refuse 
to enforce Federal immigration laws, drug laws, or to seek the 
death penalty merely because of disagreement with the 
Administration's views.
    If you disagree with that statement, then it would appear 
to me that the President's prerogative should be preserved and 
protected.
    With regard to the issue of the appointment of interim 
United States attorneys, it is my view that the attorney 
general should have the authority to name interim U.S. 
attorneys until the presidentially-appointed successor is 
named, confirmed and takes office.
    And while this is not perfect, it is consistent with the 
objective of the President having the ability to influence 
Federal enforcement priorities through the attorney general and 
the United States attorneys.
    The role of the U.S. attorney has always been critical to 
effective enforcement of our Federal criminal laws, but it has 
been substantially increased since the terrorist attacks of 9/
11.
    The U.S. attorney not only sets enforcement priorities 
within the district, but also serves as a unique coordinator of 
the Federal law enforcement.
    In fighting terrorism, it is essential that the U.S. 
attorney be in synch with the attorney general and properly 
coordinate with the Department of Justice.
    For this reason, the current authority of the attorney 
general to name interim appointments makes sense and, in my 
judgment, should be continued.
    And with that, I will yield my time and I thank the 
Committee for its indulgence.
    [The prepared statement of Mr. Hutchinson follows:]
           Prepared Statement of the Honorable Asa Hutchinson
    Good afternoon. My name is Asa Hutchinson, and it was my privilege 
to serve on the House Committee on the Judiciary from 1997-2001 before 
being confirmed to serve as Administrator of the United States Drug 
Enforcement Administration. It is good to be back, and I am privileged 
to be testifying on a subject of great interest to me and to anyone who 
appreciates the importance of United States Attorneys to the 
administration of justice at the federal level in this nation. I was 
honored to have served as United States Attorney for the Western 
District of Arkansas from l982 until l985 during the administration of 
former President Ronald Reagan.
    It is from a number of perspectives that I have learned the 
critical role that a United States Attorney serves our nation and the 
priorities of the Administration. I have interacted with United States 
Attorneys as a defense lawyer; as a member of Congress; as head of the 
DEA; and as our nation's first Under Secretary for Border and 
Transportation Security of the Department of Homeland Security. In the 
latter role, I worked with our federal law enforcement officials on 
customs, immigration and drug enforcement issues. The dedication, 
commitment and discretion of U.S. Attorneys is essential if the 
President's administration is to be successful with its priorities in 
enforcing federal criminal law. That is why I fully support the 
President's discretion in naming U.S. Attorneys who support the 
President's priorities and who are committed to carrying out the 
president's initiatives and enforcement goals. Let me elaborate on this 
main point:

        1.  Except for the U.S. Attorney, the federal prosecutors are 
        career attorneys who are not necessarily committed to the 
        priorities of the Administration. Without the full support of 
        the U.S. Attorney, the President, through the Attorney General, 
        would have little practical impact on the strategic priorities 
        of the federal justice system. Any new administration could 
        choose from a laundry list of priorities that range from 
        environmental enforcement to federal gun laws to fighting 
        terrorism. The priorities change with the necessity of the time 
        and with the goals of the Administration. With limited 
        resources the United States Attorney sets the prosecutorial 
        guidelines for a long list of federal agencies, and those 
        priorities invariably change with different presidents, but 
        they could not change without the commitment of the 
        presidentially appointed United States Attorney.

        2.  It is essential that the United States Attorneys serve at 
        the pleasure of the President. It logically follows that the 
        President may ask for the resignation of his or her appointee, 
        with or without cause. A caution is necessary at this point. If 
        a President exercises the power to fire a United States 
        Attorney, then that action is entitled to receive close 
        scrutiny by those with oversight responsibility. I say this 
        because we all recall the Saturday night massacre when the 
        Nixon White House fired a number of federal appointees with 
        investigative and prosecutorial power in the Watergate 
        investigation. The actions of the President on that occasion 
        received broad criticism and ultimately backfired with the 
        appointment of Leon Jaworski who pursued the investigation with 
        vigor and success. While that action was an extreme abuse of 
        presidential power, the lessons of history illustrate that the 
        presidential appointment power over U.S. Attorneys has been 
        largely used to positively influence federal enforcement 
        priorities. For example, it would be unacceptable for the U.S. 
        Attorney to refuse to enforce federal immigration laws, drug 
        laws, or seek the death penalty merely because of a 
        disagreement with the Administration's views. If you agree with 
        that statement ,then it would appear to me that the 
        presidential prerogative should be preserved and protected.

        3.  With regard to the appointment of interim United States 
        Attorneys, it is my view that the Attorney General should have 
        the authority to name interim U.S. Attorneys until the 
        presidentially appointed successor is named, confirmed and 
        takes office. While this is not perfect, it is consistent with 
        the objective of a President having the ability to influence 
        federal enforcement priorities through the Attorney General and 
        the U.S. Attorneys.

    The role of U.S. Attorneys has always been critical to effective 
enforcement of our federal laws, but their role has increased 
substantially since the terrorist attacks of 9/11. The U.S. Attorney 
not only sets federal enforcement priorities within the district but 
also serves as a unique coordinator of the federal law enforcement 
effort. In fighting terrorism, it is essential that the U.S. Attorney 
be in sync with the Attorney General and properly coordinate with the 
Department of Justice. For this reason the current authority of the 
Attorney General to name interim appointments makes sense and should be 
continued.
    I would be happy to respond to any questions.

    Ms. Sanchez. Thank you, Mr. Hutchinson.
    Mr. Smietanka?

 TESTIMONY OF JOHN A. SMIETANKA, FORMER UNITED STATES ATTORNEY 
              FOR THE WESTERN DISTRICT OF MICHIGAN

    Mr. Smietanka. I am electronically challenged and I found 
the button.
    Madam Chairman, Mr. Chairman, Mr. Ranking Member, my name 
is John Smietanka. I practice law in the western area of 
Michigan, with Smietanka, Buckleitner, Stephenson & Guzon. I 
have been in private practice now for about 13 years.
    For 25 years before that, I was a prosecuting attorney, 12 
in the prosecutor's office in Berrien County in the 
southwestern corner of the State with Congressman Conyers.
    For 12 years, I was a United States attorney for the 
western district of Michigan. I am a recovering politician, 
elected county prosecutor three times, and ran unsuccessfully 
for Michigan attorney general twice.
    I love and respect the office of the United States attorney 
and the U.S. Department of Justice very much. I know many 
former U.S. attorneys sitting in this panel, colleagues of 
mine, who equally love the department, love the position of 
U.S. attorney and is a part of our family and we don't like it 
when our family is attacked.
    I also respect politics and politicians, because I was one, 
and I admire those people who have the guts to go out and run 
for office and practice what Aristotle called the art of 
government.
    The primary issue that I was asked to testify about was how 
to deal with the appointment of temporary replacement United 
States attorneys when the presidentially appointed incumbent 
leaves office.
    And I jump to the conclusion and I say that I would endorse 
the Berman bill, because it is essentially what we came to at 
the recommendation of Attorney General Meese back in 1986 and 
served in decent stead until 2006.
    That policy, that legislation was a modification of what 
had been going on for decades before that. In fact, I believe 
Abraham Lincoln and 26 of his successors found that appointment 
by judges was not constitutionally offensive and was a fine way 
to deal with what should be an interim position, and I want to 
emphasize interim position.
    The President has the absolute right under the 
Constitution, under the Judiciary Act of 1789 to name and to 
replace United States attorneys. They have been under the 
direction of the attorney general since the 1870's. They are 
at-will employees or, rather, inferior officers, the technical 
term.
    I suggest when you are talking about now the replacement of 
a U.S. attorney, an interim U.S. attorney, I would just 
highlight eight points and I will be finished.
    The position of the United States attorney has always been 
and should a political or policy non-career position. It is a 
very powerful position. With that should come great 
accountability.
    The appointment of temporary successors to the 
presidentially-appointed United States attorneys under any 
legislative and/or executive scheme has dangers that have 
arisen in the past and will do so in the future.
    The appropriate work of the United States attorney's office 
must go on without improper or undue interference from within 
or without. As I said, the President has a right to qualified 
political appointees in her or his Administration who will 
promote good Government and the Administration's policy 
priorities.
    The Congress, courts, media and the public have parallel 
rights to scrutinize the work of those political appointees. 
The removal of a United States attorney by fiat or requested 
resignation should be approached carefully and may have 
consequences in how that office and the department functions.
    To make temporary replacement appointments of unqualified 
people would be to make a plaything of the office and extremely 
demeaning to a very critical office.
    And, finally, the appropriate way, as I said before, of 
appointing interim U.S. attorneys is the process that prevailed 
from 1986 to 2006, essentially the Berman bill. Whether it is 
120 days or some other figure is up to the legislature.
    Thank you, Madam Chairman.
    [The prepared statement of Mr. Smietanka follows:]
                Prepared Statement of John A. Smietanka
    My name is John Smietanka. I currently practice law in Western 
Michigan in the firm of Smietanka, Buckleitner, Steffes and Gezon. 
While the majority of our practice is in civil work, federal and state, 
we also handle a substantial number of federal and state criminal 
cases.
                             my background
    I am admitted to practice law in the States of Michigan and 
Illinois, as well as the federal courts of those two states, the United 
States Sixth Circuit Court of Appeals and the United States Supreme 
Court.
Berrien County, Michigan Prosecutor
    For 25 years of my career I was a prosecutor, first as an assistant 
county prosecutor in Berrien County, Michigan for 4 years, and then as 
Berrien County Prosecuting Attorney for almost 8 years. I was also 
President of the Prosecuting Attorneys Association of Michigan. During 
my time as county prosecutor, I was also involved in politics as a 
member of the Republican Party at both the local and state levels. I 
was elected 3 times as Prosecuting Attorney by the people of Berrien 
County.
United States Attorney for the Western District of Michigan
    In 1981, the presidentially-appointed United States Attorney for 
Western Michigan (appointed by President Carter) James Brady, resigned 
to go into private practice, and, under the law as it existed at the 
time, the federal district judges in the Western District appointed 
Robert Greene as Interim United States Attorney. Bob had been an 
assistant United States Attorney in the office for many years. He 
served as the Interim United States Attorney until I was confirmed and 
commissioned in October 1981.
    Later in 1981 President Reagan nominated me and the United States 
Senate confirmed me as the United States Attorney for the Western 
District of Michigan. In 1985, I was renominated and confirmed for a 
second four year term. When President George H.W. Bush was elected in 
1988, I continued to serve as United States Attorney until January 1, 
1994.
    I resigned effective on January 1, 1994, upon the confirmation of 
my successor, Michael Dettmer, the presidentially-appointed United 
States Attorney of former President Clinton.
    I served as U.S. Attorney for 3 Presidents (Reagan, Bush and 
Clinton) and 5 Attorney Generals (Smith, Meese, Thornburgh, Barr and 
Reno) and several acting Attorney Generals.
    The transitions of the United States Attorney's Office in Western 
Michigan from the Carter to Reagan/Bush to Clinton United States 
Attorneys were almost seamless, with each of us cooperating completely 
and enthusiastically to ensure a smooth and effective transition. Jim 
Brady and Bob Greene remain good friends of mine.
    I mention this to emphasize two points.

          Transitions of an extremely sensitive and powerful 
        political office such as United States Attorney can and should 
        be as smooth as possible, with the goal that the work of the 
        office continue as unaffected as possible.

          As every current and former United States Attorney 
        that I have ever met (and that has been hundreds) has said, 
        this is the best job any lawyer in America can have. We develop 
        a loyalty to our office and the entire Department of Justice 
        that borders on that given to one's family. Like many others, I 
        am a member of the National Association of Former United States 
        Attorneys which is dedicated to ensuring that the Department of 
        Justice continues to live up to its best traditions and goals.
Principal Associate Deputy Attorney General
    I also had a unique honor in 1990. I was asked by then United 
States Deputy Attorney General William P. Barr to take a temporary 
detail to Main Justice as his Principal Associate. Later, when he 
became Attorney General in 1991, I was one of his Assistants in that 
office. In that role, I learned even more of how that department of 
many diverse divisions and offices, with 88,000 persons working there, 
functioned. My responsibilities included being the liaison between the 
Deputy and all of the departmental components (save for the Criminal 
Division and the Federal Bureau of Investigation, the responsibilities 
of later Deputy Attorney General George Terwilliger). My area of 
concern thus included all the United States Attorneys in the country.
    Occasionally I participated in the interview process for the 
candidates for United States Attorney positions, but was never a part 
of the selection process in the White House.
United States Court of Appeals Nominee
    In 1992, President George H. W. Bush nominated me for a vacancy on 
the United States Sixth Circuit Court of Appeals. However, it was a 
presidential election year and over 60 nominees for judicial 
appointments did not get hearings before the Senate Judiciary Committee 
that year and our nominations died on the last day of that Congress. I 
was left with the consolation that it wasn't personal, that very 
qualified people in our group (now Chief Justice of the United States 
Supreme Court John Roberts and former Governor of Oklahoma Frank 
Keating were with me) went on with their lives, and that, as John 
Roberts said, ``We are now entitled to the acronym after our names: 
AJO: Almost Judge Once.''.
Candidate for Michigan Attorney General
    In 1994, and again in 1998, I ran unsuccessfully for the position 
of Michigan Attorney General as the Republican nominee.
    In our family we were taught to respect government, politics and 
politicians. A great aunt of mine once said of our family, ``We were 
raised on politics, sports and cigar smoke.'' Now, I confess, I am a 
recovering politician.
    With this background the Committee may appreciate a little how much 
I love the Department of Justice. It also may show that I have no 
grudge against politics and politicians.
    Therefore it troubles me when the word ``politics'' is sneered at, 
and is used as a dirty adjective in common speech. And it truly offends 
me when I hear prosecutors wrongfully tarred with that adjective when 
undeserved. Finally it causes me the most concern if there is any 
apparent basis in the actions of politicians, prosecutors or judges for 
their placing partisan or personal considerations above the honest and 
effective creation, execution and judging of the law.
                  the office of united states attorney
    Let me briefly highlight the history of the United States Attorneys 
as part of our federal system of law.
    The position was first created in the Judiciary Act of 1789, one of 
the first laws of our country.

        And there shall be appointed in each district a meet person 
        learned in the law to act as attorney for the United States in 
        such district, who shall be sworn or affirmed to the faithful 
        execution of his office, whose duty it shall be to prosecute in 
        such district all delinquents for crimes and offences, 
        cognizable under the authority of the United States, and all 
        civil actions in which the United States shall be concerned, 
        except before the supreme court in the district in which that 
        court shall be holden. And he shall receive as compensation for 
        his services such fees as shall be taxed therefor in the 
        respective courts before which the suits or prosecutions shall 
        be. . . .

Judiciary Act of 1789, Section 35.
    The same law created the position of Attorney General, but did not 
create a relationship between the two offices, rather assigning the 
majority of federal legal work to the United States Attorneys, and 
designating the Attorney General as legal advisor to the United States 
and its representative in the United States Supreme Court.
    In 1870 the Department of Justice was created by Congress and the 
folding of the United States Attorneys into it took place.
    While the process of filling the office of United States Attorney 
on a 4-year-term basis has been stable for over a century, the method 
of appointing temporary replacements has varied since my appointment in 
1981.
Appointment of Interim or Acting United States Attorneys
    For many decades, the appointing of United States Attorneys has 
been covered by 28 USC Sec. 541.

          Prior to 1986, it was left to the federal district 
        judges to select an ``Interim'' United States Attorney until a 
        permanent presidentially-appointed person was fully-qualified.

          From 1986 to 2006, the Attorney General was given the 
        first crack at an ``interim'' U.S. Attorney, and if a new 
        person was not qualified within 120 days, the district court 
        had the discretion to appoint such a person without time 
        limitation (but only until a new presidentially-appointed 
        person was qualified).

          In 2006, the section and the practice were changed to 
        allow the Attorney General's choice to remain in office until a 
        successor was senatorially confirmed.

    In addition there is another approach to filling the vacancy, the 
Vacancies Reform Act, 5 USC Sec. Sec. 3345-3349d. This provides in the 
broadest terms for such person as the First Assistant United States 
Attorney then serving in the office where the vacancy occurs for a 
period of 210 days.
         practical considerations in reviewing 28 usc Sec. 546:
    The position of United States Attorney has always been and should 
continue to be a political position, that is, a ``policy'' or non-
career appointment.
    It guarantees some sensitivity for the distinct culture and history 
of the people in the district when making discretionary legal 
decisions.
    Examples include:

          Working to achieve proper integration and cooperation 
        between federal, state and local law enforcement authorities 
        (Law Enforcement Coordinating Committees from the 1980s);

          Proper allocation of legal resources in a district 
        that meets local needs (gun, obscenity, drug etc. cases);

          A proper sensitivity to how state and local 
        governmental cultures can be checked for abuses of power 
        (public corruption prosecutions);

          A presumed comfort with the public relations aspect 
        of the United States Attorney's job.

    Furthermore, while I have the greatest respect for the career civil 
servants, we benefit by the responsiveness to the public and the 
accountability that goes with being a political officer.
            with great power should go great accountability.
    We do need public scrutiny of the types of people that wield 
governmental authority, especially those who exercise the powerful 
investigative and prosecutorial tools that Congress has authorized and 
funded, and the Executive uses, to enforce federal laws.

          Although nomination by a President of suitable 
        persons to be United States Attorneys has its own perils, it 
        does at least cause administrations to be more careful that the 
        persons that they ultimately choose are going to pass 
        congressional and public scrutiny.

          While the current process of ``advice and consent'' 
        by the United States Senate is not perfect (it can be brutally 
        unfair and partisan, and has permanently negatively affected 
        nominees' lives), it does prepare them and others for the rough 
        and tumble world of federal law enforcement.

          While both aspects of this process do in fact deter 
        good and qualified people from subjecting themselves to it, for 
        the most part it replicates the world of electoral politics 
        where candidates voluntarily expose themselves to ``the slings 
        and arrows of outrageous fortune''. Hopefully it develops in 
        the survivors a thick skin covering a humbled ego with a 
        certain empathy to the staffs and Assistant United States 
        Attorneys they supervise, the agents and courts they work with, 
        the victims and defendants they must protect, the media they 
        are examined by and the public they serve.
    The appointment of successors to the presidentially-appointed 
United States Attorneys under any legislative and/or executive scheme 
has dangers that have arisen in the past:

          Court appointment: When the courts were the sole 
        appointers of Interim U.S. Attorneys, the danger was that the 
        person so designated would have had a too-close relationship to 
        the court and have allegiance to it rather than the policies 
        and practices of the President, Attorney General or the 
        Department of Justice.

          Delay by the President or Senate: When the 
        Administration or the Senate unduly delayed the nomination of a 
        successor, interim or ``acting'' United States Attorneys could 
        stay in that category for years. (See the extraordinarily 
        difficult situation in Puerto Rico from 1993 to 1999 described 
        in the trial and appellate court decisions in United States v. 
        Fermin Hilario, 83 F. Supp. 2d 263 (D.P.R. 2000), and United 
        States v. Del Rosario, 90 F. Supp. 2d 171 (D.P.R. 2000). See 
        also the First Circuit's reversal of the trial court in United 
        States v. Hilario, 219 F.3d 9 (2000). In those cases the acting 
        or Interim United States Attorney was in place for 6\1/2\ 
        years. This problem has occurred during different 
        administrations, as witness the years of successive acting/
        interim United States Attorneys in the Virgin Islands in the 
        1980s.

          Temporary appointments for political favoritism: A 
        danger arises also if a temporary appointment of the Attorney 
        General is not followed by some action to identify and move a 
        successor through the process. It is most of concern where a 
        perception may exist that the Interim United States Attorney is 
        put in place to accomplish a purely partisan political goal. 
        Every administration in the past 30 years has published 
        extensive criteria for identifying the most professionally 
        qualified candidates for U.S. Attorney positions.

          Changes in the leadership of an organization send 
        messages. Whenever and for whatever reason one United States 
        Attorney leaves and another comes in, there is profound 
        uncertainty in the career staff of assistants and staff. 
        Sometimes that is good, as when poor management skills or 
        criminality is attacked, or a complacent office needs new ideas 
        and energy; sometimes it is bad, as when the competent office 
        leader is removed without apparent good reason. But sudden and 
        apparently arbitrary changes at the top cannot help but affect 
        the troops. This danger is most apparent in mass actions, such 
        as the approximately 86 same-day terminations of U.S. Attorneys 
        during the Clinton administration, and to a lesser extent, 
        perhaps only by numbers, in the current situation.

    The appropriate work of a United States Attorneys' Office must go 
on without improper or undue interference
    Sensitive investigations and prosecutions, most especially those of 
political or other public figures should never be improperly derailed 
by a change of administration in the United States Attorney of a 
district. The best way for that to occur is for the departmental 
leadership, including both those in Main Justice and the local office 
itself, to commit themselves to seamless transitions. Unnecessary 
jerking of the reins distract the most compliant horses.
    Judging the reasons for the replacement of a United States Attorney 
must be done with great care and circumspection
    This is the most difficult of all considerations to apply in real 
life. Resignations are often the method of resolution of conflict 
giving both the employer and employee a way of avoiding undue 
embarrassment. In addition it would do the work of no United States 
Attorney's Office any good, in my judgment, to undergo the stress of a 
public airing of personality conflicts, odd personal traits or the 
management quirks of the boss or her or his workers.
    When the reason for a hasty departure is the potential criminal 
behavior of the incumbent, that is a different story. And sometimes 
non-criminal but tortious behavior occurs and can be fair game for the 
public and for reason for firings.
    In the case of the 7 resignations under scrutiny here, I have 
absolutely no knowledge of what led to them. I have, nor do I need for 
my policy comments, no reason to deal with the merits of any of these 
cases. These 7 resignations and the 86 in 1993, are unique in my 
experience.
    The President has a right to qualified political appointees in her 
or his administration who will promote good government and the 
administration's policy priorities
    A concomitant right is to dismiss or seek the resignation of those 
who do not want to follow the lawful directives of that 
administration's leadership. Again I emphasize I do not know what 
caused these resignations. If a United States Attorney is charged with 
enforcing a policy or a decision to do something which is illegal or 
morally repugnant, that person has a right, or perhaps even a duty, to 
oppose it internally. If internal opposition is unavailing, the proper 
course would be to resign rather than to perform illegal or morally 
repugnant acts.
    On the other hand, the President and the Attorney General have the 
right to remove a United States Attorney who is not doing a good job. 
To take that power away from the Chief Executive would be of 
questionable constitutionality, and certainly very bad government.
    In any event, the Congress, the Judiciary, the media and the public 
have continually exercised their prerogatives to evaluate just how well 
the President appoints and removes.
    The appropriate way of appointing Interim United States Attorneys 
is the process that prevailed from 1986 to 2006
    No way to handle this situation is perfect. Each approach has 
dangers of abuse, inefficiency, favoritism and treading on toes. 
However, it seems to me that the most effective way is to allow the 
Attorney General to appoint for a period of time (120 days is a fair 
number, though not worthy of Mount Rushmore enshrinement), and, if the 
President fails to nominate or the Senate fails to confirm a candidate, 
the court could (though not required to) step in. The court could, if 
the appointee of the Attorney General is doing a good enough job, 
reappoint that person. The one thing that is certain is that if the 
Administration were to put in as Interim United States Attorney someone 
who was then to fail to be confirmed by the Senate, 28 USC 546 would 
bar that person from holding the office later. This would militate 
against an Attorney General immediately putting in a controversial 
political person that could be forced out ignominiously and forever 
within 120 days.
    This checks-and-balances process would put a premium on the 
administration, the court, the Senate and the ``recommenders'' of 
potential new United States Attorneys working together to speed the 
process along. Such an approach would be the best guarantee of as 
little disturbance of the work of the office.
    Therefore I endorse the approach of the Berman bill now before this 
Committee, which restores the principle that:

          An interim U.S. Attorney may be appointed by the 
        Attorney General for 120 days; and

          If a senatorially confirmed U.S. Attorney is not 
        commissioned by then, the district court may appoint an Interim 
        U.S. Attorney.

    I am grateful for the opportunity to address the Committee on this 
issue and am available to answer any questions that you might have.

    Ms. Sanchez. Thank you for your testimony.
    Mr. Wampler, you are recognized for your testimony.

   TESTIMONY OF ATLEE WAMPLER, III, PRESIDENT, THE NATIONAL 
         ASSOCIATION OF FORMER UNITED STATES ATTORNEYS

    Mr. Wampler. Madam Chairman, Members of Congress, I am 
Atlee W. Wampler, III. I am appearing here today as president 
of the National Association of Former United States Attorneys, 
and I have filed a position statement of the association with 
the House Committee on the Judiciary.
    The association's membership includes former United States 
attorneys from every State in the union and every executive 
Administration back to President Kennedy.
    The association's purpose, as stated in its mission 
statement, is to promote and defend and further the integrity 
and the preservation of the litigation authority and 
independence of the office of the United States attorney.
    And it is the preservation of integrity and independence of 
the U.S. attorney that I am here to stress today. This 
bipartisan association is very troubled with these recent press 
accounts concerning the termination of a sizeable number of 
well performing U.S. attorneys.
    And, yes, the U.S. attorney serves at the pleasure of the 
President and the President may fire him or her at any time. 
However, there is a reasoned tradition that U.S. attorneys 
serve out the terms, the Administration's terms, and we 
vigorously oppose any effort to remove a U.S. attorney because 
of political displeasure or political reward to another person 
to hold the title of this important office.
    Such terminations, unfortunately, give the perception of 
and generate speculation as to whether political considerations 
prompted these firings.
    The United States attorney is not an executive widget, is 
not a fungible executive commodity. These terminations cause 
disruptions in the U.S. attorney's office.
    The U.S. attorney is the chief Federal law enforcement 
officer in the district and he is charged with responsibilities 
I have set out in my statement, that are set out in the 
statute, and they are plenary.
    Throughout the 4 to 8 years that a U.S. attorney operates 
in that position to manage a major law enforcement office, he 
gains education, training, experience and wisdom and becomes a 
very valuable asset to the system of justice in this country.
    And the U.S. attorney's tasks are extremely demanding, 
demanding total commitment of the public and private lives, and 
their work is so stressful that the usual problem that we have 
at the end of Administration terms is that these highly 
experienced men and women leave office and depart to lucrative 
positions in private law firms.
    Most importantly, the United States attorney cannot be 
perceived to be biased toward nor influenced by any political 
party in power nor by politically prominent people nor people 
of great wealth.
    That polestar requirement manifests the principle that the 
U.S. attorney must have a degree of substantial independence 
and that is the major reason for the tradition of U.S. 
attorneys serving to the end of an Administration's terms.
    If the U.S. attorney is doing his or her job of fairly 
carrying out the prosecution and the laws of the United States, 
he or she is going to upset some very important and prominent 
people and people of great wealth. These people are going to 
complain to the top members of the Administration to remove 
that U.S. attorney for making decisions that adversely affect 
them.
    And it is the duty of top officials in the Department of 
Justice and it has been through the history of the Justice 
Department that I have noted over the last 30 years that they 
politely listen to these complaints and pay them no heed if the 
United States attorney is faithfully executing the laws of his 
or her office.
    A President and an attorney general must respect that U.S. 
attorneys are charged with the statutory duty of enforcement of 
the laws impartially and fairly in the district, which gives 
the United States attorney an element of independence.
    The U.S. attorney is not charged by Congress with being 
simply a team player.
    Such terminations, rightly or wrongly, give a bad 
perception and, rightly or wrongly, cause speculation that 
justice is for sale and retribution can be sold and the dogs of 
justice can be called off.
    A President and an attorney general must exercise 
discretion in this sensitive area of the Administration of 
justice, not to do what President's have the power to do, and 
that is to terminate a performing experienced United States 
attorney from office.
    [The prepared statement of Mr. Wampler follows:]
              Prepared Statement of Atlee W. Wampler, III
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Ms. Sanchez. Thank you for your testimony, Mr. Wampler.
    Now, is it Terwilliger?
    Mr. Terwilliger. Yes, ma'am, that is exactly right.
    Ms. Sanchez. Excellent, I am a quick study.
    You are recognized for your testimony.

 TESTIMONY OF GEORGE TERWILLIGER, III, FORMER DEPUTY ATTORNEY 
                  GENERAL OF THE UNITED STATES

    Mr. Terwilliger. Thank you very much, Madam Chair and 
Ranking Member Cannon and Mr. Conyers. Thank you for inviting 
me to appear today, despite the lateness of the hour.
    The United States attorney in each district plays a vital 
role in promoting the safety and wellbeing of all Americans. 
The process for filling United States attorney positions, 
whether initially or through a vacancy in an Administration, 
therefore, deserves the thoughtful and careful consideration 
that they are usually accorded.
    I had the privilege of serving as an assistant United 
States attorney for 8 years, as a United States attorney for 5 
years, and to supervise the Nation's 93 United States attorneys 
as deputy attorney general for a period of over 2 years.
    I was involved in decisions to hire United States 
attorneys, to review their performance and to remove them as 
necessary.
    As a general proposition, in dealing with United States 
attorneys today, I find that they are their assistants are 
among the most honorable and dedicated of professionals that 
one can encounter.
    I am here before this Committee today because I believe 
strongly that protecting the integrity of the office of the 
United States attorney is essential to our system of justice.
    It is also my privilege to know personally much of today's 
leadership of the Justice Department, including Attorney 
General Gonzales and Deputy Attorney General McNulty.
    In addition, I am fortunate to enjoy the friendship of many 
of their staff members, as well as many long-serving career 
Department of Justice lawyers, men and women for whom I have 
sincere personal and professional admiration.
    I have every reason to believe that the department's 
leaders share my views about the importance of maintaining the 
integrity of and respect for the office of United States 
attorney.
    In my experience, particularly as deputy attorney general, 
there are advisors variety of reasons why a change in 
leadership at a United States attorney's office may be 
appropriate or even necessary. There is no entitlement to the 
job.
    During my own tenure as United States attorney, I believe 
it would be fair to say that there were those who praised my 
performance and there were those who found it wonting.
    I received my fair share of criticism for both policy and 
operational decisions. Such criticism comes with the territory. 
If one does not want to suffer such criticism, one should not 
assume the office.
    I considered the proper execution of my duties as United 
States attorney to require both a recognition that I serve as a 
subordinate of the attorney general and the leadership of the 
Justice Department and an awareness of my responsibility for 
forwarding within my district the goals and objectives of each 
Administration in which I served.
    When I hear Mr. Wampler talk about the independence of the 
United States attorney's offices, I assume he means the 
discretion and the respect for the discretion in deciding how 
to prosecute cases that has traditionally been afforded United 
States attorneys and their assistants.
    But I don't think independence is the right word and I 
would ask--independence of whom or of what?
    It is decidedly not within the United States attorney's 
responsibility for him or her to execute his duties in a manner 
that is politically driven.
    Where I or the attorney general believed that a United 
States attorney's performance in regard to their core 
responsibilities was wonting, we acted on that belief.
    Because the United States attorney serves as a subordinate 
to the President, I think it is most appropriate that the 
authority to appoint interim United States attorneys be 
delegated to the attorney general, as it is under current law.
    There responsibility for the supervision and management of 
United States attorneys' offices has been vested by Congress in 
the attorney general and the Department of Justice.
    It seems to me, as both a practical and a legal matter, 
therefore, that such responsibility should carry with it the 
authority to appoint the persons necessary to carry it out.
    I certainly recognize that the advice and consent process 
is critical to the balance of power between the Congress and 
the executive branch and I would hope that both branches of 
Government would act in a responsible manner to see that the 
nomination and appointment process necessary to fill a vacancy 
in the United States attorney's office would move with 
dispatch.
    In conclusion, I regret the circumstances greatly which 
have led to this hearing. I would respectfully urge all parties 
to recall simply that United States attorneys, as has been 
mentioned so many times today, do serve at the pleasure of the 
President and may be removed for any reason.
    I would most respectfully urge Congress and, respectfully, 
this Committee to accord deference to that fundamental aspect 
of the office and urge restraint in exploring any particular or 
individual decision regarding a particular office.
    I welcome your questions and I would ask that my full 
statement be included for the record.
    [The prepared statement of Mr. Terwilliger follows:]
     Prepared Statement of the Honorable George J. Terwilliger, III
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Ms. Sanchez. It will be included. Just so all the witnesses 
know, your written testimony will all be included as it is 
written in the record.
    Mr. Halstead?

TESTIMONY OF T.J. HALSTEAD, LEGISLATIVE ATTORNEY, AMERICAN LAW 
            DIVISION, CONGRESSIONAL RESEARCH SERVICE

    Mr. Halstead. Madam Chair, Members of the Subcommittee, I 
am pleased to be here today to discuss the Subcommittee's 
consideration of H.R. 580.
    In my testimony today, I would like to address three issues 
that are relevant to today's hearing, the first dealing with 
departure statistics for U.S. attorneys, the other two relating 
to H.R. 580 itself.
    Regarding the first issue, Kevin Scott, a colleague of mine 
in our government and finance division, has done a great deal 
of work analyzing information that the Department of Justice 
has provided to us on the appointment of U.S. attorneys by date 
range, covering a period from April 1993 through February 2007.
    Using that data, CRS has determined that there have been 97 
instances where Senate-confirmed U.S. attorneys have left 
office during the course of a presidential Administration as 
opposed to the mass departures that we traditionally see during 
the changeover between Administrations.
    Of those 97 departures, we have classified 16 of those as 
resignations, which, for the purposes of our analysis, covers 
U.S. attorneys whose departures could not be attributed to 
another category, such as leaving for a position on the Federal 
bench or to enter or return to the private sector.
    Ten of those 16 resignations have occurred during the 
current Administration and, as you are well aware, recent news 
reports have stated that five of those 10 resignations were 
made at the request of the Department of Justice over the past 
3 months.
    Additional news reports have stated that two other U.S. 
attorneys who had indicated that they were leaving in order to 
return to the private sector were also asked to resign and we 
have news reports indicating that one other U.S. attorney has 
been asked to resign, but is still serving.
    So in sum, there are reports indicating that a total of 
eight U.S. attorneys have been asked to resign in the past 3 
months and the research we have conducted thus far has not 
revealed a similar streak of departures that reportedly stem 
from politically-motivated dismissals.
    It is important to note, however, that our research on this 
point is ongoing and may be aided by any future disclosure of 
information from the Department of Justice.
    These dismissals have drawn attention to how interim U.S. 
attorneys are appointed, in large part, based on the perception 
that recent changes to that appointment process are closely 
linked to the recent string of dismissals.
    One of the criticisms that has been leveled at the new 
appointment scheme is that it unconstitutionally deprives the 
Senate of its advice and consent function.
    I have laid this out in detail in my prepared statement, 
but there is no substantive basis for that argument under 
current constitutional standards. It is well established that 
U.S. attorneys are inferior officers of the United States and 
that Congress could, therefore, remove any advise and consent 
requirement for their appointment all together, if it so 
desired.
    The constitutional flipside to this argument has been 
raised by the Department of Justice and others in opposition to 
H.R. 580, the argument being that a return to the prior 
appointment scheme would be inconsistent with the separation of 
powers doctrine, even in light of the long history of judicial 
involvement in the selection of United States attorneys.
    The same cases that establish that U.S. attorneys are 
inferior officers have also addressed this issue and have all 
rejected the argument that judicial appointment of Federal 
prosecutors is constitutionally problematic.
    Ultimately, any action that Congress takes with regard to 
H.R. 580 will hinge on a weighing of the important 
institutional and policy considerations that surround the 
appointment of U.S. attorneys and not on constitutional 
factors.
    This brings me to my final point. If Congress, as an 
institution, is concerned with the potential that the current 
appointment dynamic may result in the prolonged circumvention 
of the Senate's advice and consent function for U.S. attorneys, 
it needs to be aware that even upon a return to the previous 
version of section 546, there is still a possibility that the 
Department of Justice may rely on preexisting legal rationales 
in a way that impacts that advice and consent function.
    Our research indicates that under the current 
Administration, the Department of Justice has made repeated use 
of the Vacancies Reform Act to install individuals as acting 
U.S. attorneys and also made several successive interim 
appointments under the prior version of 546.
    Used in conjunction, those two approaches can be used to 
place interim and acting U.S. attorneys in place for up to a 
year, if not longer.
    It is well within Congress' power to restrict the use of 
these statutes in such a fashion, but ultimately, as with the 
question of whether to retain the current appointment dynamic 
or to return to the previous standard, any decision will hinge 
upon a Congressional determination as to whether the potential 
benefits of this statutory flexibility outweigh the dangers 
such a dynamic poses to the institutional prerogatives of 
Congress.
    Madam Chair, I will conclude my testimony there. I look 
forward to working with all Members and staff of the Committee 
as it continues its consideration of this issue.
    I look forward to answering any questions you might have.
    Thank you.
    [The prepared statement of Mr. Halstead follows:]
                  Prepared Statement of T.J. Halstead
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Ms. Sanchez. Thank you, Mr. Halstead.
    I now recognize myself for 5 minutes for the purpose of 
asking questions.
    Mr. Halstead, my first question is actually for you.
    Has the Department of Justice complied with your request 
for information in order for you to finish your report on U.S. 
attorneys who have served less than a full 4-year term from 
1981 to 2006?
    Mr. Halstead. Kevin Scott and Henry Hogue in our government 
finance division have been doing the vast majority of work 
regarding the statistical compilations.
    My understanding is that there was a disclosure of 
information from the Department of Justice on February 24, 2007 
and I believe we have been told informally that the Department 
of Justice is in the process of winnowing through its records 
to see what further disclosures might be made.
    Ms. Sanchez. Thank you.
    My next question is for Mr. Wampler.
    We learned today that both Mr. Charlton and Mr. Bogden were 
told by the then acting assistant attorney general, Mr. Mercer, 
that they were being terminated during the last 2 years of the 
Bush administration to, in essence, make way for Republicans to 
pad their resumes. This would assist them in their political or 
legal careers.
    Do you think that that is a good reason to end the services 
of a sitting U.S. attorney? Does this call into question the 
previous statements of the Justice Department that they were 
dismissed for, quote-unquote, ``performance-related reasons?''
    Mr. Wampler. Without commenting on other people's 
testimony, our association would advocate that a U.S. attorney 
should not be changed, particularly this close to the end of 
the Administration.
    After all these years of experience and dealings that they 
have had, they are highly trained executives, other than if 
they disobey a particular order or a direct requirement.
    Despite that, these butting of heads between Department of 
Justice officials and U.S. attorneys happen often in many 
Administrations and these are things that should be worked out 
between well meaning executives to faithfully carry out the 
laws.
    Ms. Sanchez. Mr. Wampler, Mr. Moschella testified earlier 
today that Mr. McKay was asked to resign only because he 
championed an information system and Mr. McKay testified 
thereafter that everything he did in connection with that 
project was authorized by the deputy attorney general, Paul 
McNulty.
    In fact, Mr. McKay won a distinguished public service award 
for his leadership on this project in January of 2007, just 1 
month after he asked to resign.
    Do you believe that a United States attorney should be 
forced to resign for this reason alone?
    Mr. Wampler. I believe the President having power to do 
that and our association would advocate that the President and 
the attorney general exercise great discretion and not do that.
    Ms. Sanchez. Mr. Terwilliger, you stated that the U.S. 
attorneys serve at the pleasure of the President and seemed to 
imply that the President should be able to fire them for no 
reason or no good reason, and I have a question for you, 
because it is very analogous to employment law.
    There are at-will employees in employment law and yet we 
don't believe it is appropriate to fire employees for their 
race.
    Would you argue that it is proper for the President to 
remove a U.S. attorney for his race?
    Mr. Terwilliger. Of course not.
    Ms. Sanchez. Would you argue that it would be, in the 
employment law context, improper to fire an employee for 
whistleblowing of wrongdoing or misfeasance?
    Would you, in your statement about the President has the 
absolute discretion, would you think that it is appropriate for 
a President to fire a U.S. attorney if he or she were engaged 
in whistleblowing or bringing misfeasance to somebody's 
attention?
    Mr. Terwilliger. It would depend on the circumstances. If 
the U.S. attorney, for example, went out of a channel or a 
chain of command or disclosed grand jury material in the 
process of whistleblowing or announced an indictment----
    Ms. Sanchez. Let's just stay with the----
    Mr. Terwilliger [continuing]. In the press in violation of 
the law and department rules, yes, then I would think it would 
be appropriate.
    Ms. Sanchez. But would you agree that there are probably 
strong public policy reasons for not allowing the President 
absolute unfettered discretion to fire U.S. attorneys for some 
very bad reason?
    Mr. Terwilliger. No, because the Constitution is what 
defines the President's authority to appoint and remove 
inferior officers and under that system, the check on the 
President's authority is not legal in nature, it is political, 
such as having this hearing.
    And if the Congress or the public, for that matter, through 
its elected representatives, think the President has made a bad 
decision, it can exercise the political check to that power by 
holding a hearing of this nature, among other things.
    Ms. Sanchez. So you are essentially saying the only remedy 
would be something political, and that there should be no 
framework under which a President is prohibited from firing or 
dismissing U.S. attorneys, even in some instances that we could 
imagine would be for very bad reasons?
    Mr. Terwilliger. Respectfully, ma'am, I believe that is 
what the Constitution says is the way it should be done.
    Ms. Sanchez. The question I am asking you is whether you 
believe that is.
    Mr. Terwilliger. Well, I believe in the Constitution, so I 
believe if that is what the Constitution--if I am correct that 
that is what the Constitution dictates, we should follow that 
dictate.
    Ms. Sanchez. All right, thank you.
    I would now like to recognize the Ranking Member, Mr. 
Cannon, for 5 minutes.
    Mr. Cannon. I thank the Chairwoman.
    Mr. Wampler, you talked about it being a reasonable 
position to allow a U.S. attorney to serve out his term.
    Let me ask you, in your mind, does that change when a new 
President comes in and decides to replace all U.S. attorneys at 
once, as, for instance, Clinton did?
    Mr. Wampler. Yes, sir.
    Mr. Cannon. So at the beginning of an Administration, it 
may make some sense. But when the Administration is ongoing, 
taking a big group of U.S. attorneys and replacing them is more 
difficult.
    Mr. Wampler. They are just two different concepts, sir. 
When a President assumes office, he gets to appoint these 
officials. He gets to appoint the U.S. attorneys. So they are 
going to all be new.
    Mr. Cannon. Often, U.S. attorneys continue from one 
Administration to another, don't they?
    Mr. Wampler. Yes, sir.
    Mr. Cannon. In other words, a new President should have the 
right to replace everybody, but it creates this kind of a 
political response, I think Mr. Terwilliger would say, if he 
does something that is characterizable as beyond the mark.
    Mr. Wampler. I don't think so. I think when a new President 
assumes office, it has been pretty much a history that the 
people that were appointed by the prior Administration are 
ready to submit their resignations.
    Mr. Cannon. Then why is it that you couldn't ask eight U.S. 
attorneys to quite, less than 10 percent? Why would it be 
different?
    Mr. Wampler. Well, it is the same President and he is the 
one that appointed them in the first place and they have now 
gained 4, 6 years of experience. And it is not that he can't, 
he certainly can. We are advocating he shouldn't.
    Mr. Cannon. Let me shift gears just a bit and ask all the 
panelists. If we went back to the way it was and the judge 
appoints for some period of time, is there any question but 
that the President, if he disagrees with the appointment, has 
the ability to say to the U.S. attorney appointed by a judge 
that he doesn't want him to continue serving and be able to ask 
for his resignation or fire him?
    So there is a check, in fact, on judges doing it. Is there 
any historical reason to think that would not be the case?
    Mr. Smietanka. No. Remember--if I could, on this point--the 
Judiciary Act creates the position of United States attorney, 
1789. It has been modified to talk about the replacement and 
how that U.S. attorney fits into the structure of the 
Department of Justice in the mid 1800's.
    However, the principle that a President can withdraw his 
authority from that person at any time is true whether or not, 
in my view, whether or not a judge appoints or the President 
appoints.
    Mr. Cannon. Mr. Halstead?
    Mr. Halstead. Yes, I can provide the Committee with 
citations. It is a fairly well established principle that the 
President retains that removal authority.
    Mr. Cannon. Thank you.
    Mr. Terwilliger, let me ask you a question about our prior 
panel. I know you heard that.
    Using quotes here, based on the press conference that Mr. 
Iglesias called, the paper referred to that as ``as he prepared 
to leave his office.''
    So he was still in office and he said, ``We put corruption 
cases back on the front burner. As for the investigation of a 
kickback scheme reportedly involving construction of 
Albuquerque's metro court and several other buildings, a 
corruption case rumored to dwarf the Vigil and Montoya cases.''
    ``Iglesias said he expected indictments to come very soon. 
But as he prepared for a news conference today, in which he 
expected to focus on a defense of his tenure,'' putting his 
tenure above, I think, his--``Iglesias said those indictments 
would not come under his watch. `I wish I would have that 
honor,' he said, `but it will have to wait for my successor.' 
''
    In your view, is that an inappropriate thing for a retiring 
U.S. attorney to do?
    Mr. Terwilliger. With respect, Mr. Cannon, I don't want to 
judge based on newspaper reports alone, which I am sure have 
been accurately reported, what a particular individual has 
done, particularly in a matter as serious as that.
    I will say this, though, that I understand perfectly, 
having been a United States attorney, how difficult it is to 
involuntarily give up your job and I understand that there may 
be some residual bitterness about that.
    But whatever the circumstances may be, whether it is viewed 
as a good reason or a bad reason, it cannot possibly justify 
someone--and I am not saying this is what Mr. Iglesias did, 
because I don't know, but it cannot justify the very, very 
serious transgression not just of department policy, but of the 
law, of reporting about an indictment that hasn't been 
returned, that is prospective.
    Members of the political establishment are vexed constantly 
by leaks out of the executive branch, whether they are 
politically-motivated or somebody trying to feather their nest, 
talking about what is happening in investigations and potential 
charges and so forth.
    We investigated leaks when I was at the Justice Department. 
We took complaints from members at the department about leaks, 
very vociferous complaints, as I am sure some Members of this 
Committee that were around then remember, and it continues up 
to the present day.
    It is a very serious transgression when it occurs.
    Ms. Sanchez. The time of the gentleman has expired.
    Mr. Cannon. I yield back.
    Ms. Sanchez. The gentleman from Michigan, Mr. Conyers, is 
recognized for 5 minutes.
    Mr. Conyers. Thank you.
    Madam Chairwoman, this is an important panel, because we 
are now examining the bill that is before the Subcommittee in a 
way that it hasn't been given the attention previously.
    I want to commend you for including this third panel, 
because it is very important.
    House Resolution 580, in essence, suggests that we go back 
and review the current provisions of the PATRIOT Act and the 
measure that we are reviewing has only been in the law since 
March of 2006, when the President signed the bill.
    So it seems to me, Mr. John Smietanka, that we really need 
this hearing maybe further because I don't think that this 
provision--we were trying to deal with so many other 
antiterrorist considerations at the time and I solicit your 
viewpoint for that opinion.
    Mr. Smietanka. I think that it is now 7 on a long day and 
to try to get into constitutional or organizational issues on 
this bill is rather difficult.
    I think that I agree with you, Mr. Chairman, that it does 
deserve attention and careful attention, because as the 
representative of the Congressional Research Service said, I 
believe, a few minutes ago and, also, in his prepared 
statement, that this is a matter of a close call and a careful 
examination by this Committee.
    This is serious business. This is very serious business.
    Mr. Conyers. And it has a lot to do with the public 
perception of how the U.S. attorney's office operates.
    To me, I think that that raises much of the discussion that 
has gone on today, that we have got a problem of perception 
here. I don't know if we will ever discover what was in the 
hearts and minds of so many people, but perception is a very 
important part of what we are dealing with in making a decision 
to change this law back to the way that it was.
    Mr. Smietanka. If I could touch on that point. You have a 
delicate balance here between the legislature, the executive 
and the judiciary. You have two acts and a proposed 
modification of the 546(d), which, in juggling around in how 
you put this together--Mr. Terwilliger and I, who served 
together in the same office, a few hundred feet away from each 
other, have had many discussions on many different issues.
    You have heard one point of view from him. You can hear 
another from me as to the balancing here. I think it deserves a 
lot of attention and a careful examination and I would 
compliment Representative Berman for bringing this to the 
Committee as a bill. But it does need attention.
    Mr. Conyers. I think so, too.
    Can I ask Asa Hutchinson, a former colleague on the 
Committee and who has served in a number of important areas in 
Government, about weighing in on this, Asa.
    How do you think you would recommend the Committee move 
forward on this very sensitive matter?
    Mr. Hutchinson. Well, I, again, commend the Committee for 
serious discussion of it. I think the debate today has been 
helpful.
    The comments of the representative of the Congressional 
Research Service need to be looked at very carefully.
    But, fundamentally, I think you have to separate the 
circumstance of the seven or eight U.S. attorneys who testified 
today or who have circumstances that they are concerned about 
with the constitutional issue and the prerogative of the 
President, which I think we all fundamentally agree with, that 
to carry out, whether it is President Clinton or whether it is 
President Bush, that the U.S. attorneys are key.
    And the prerogative of the President to keep them in office 
or to ask for their resignation, that is a constitutional 
prerogative that I think is important.
    So I would encourage the Committee----
    Mr. Conyers. I hate to tell you this, but that is a 
separate question entirely.
    Mr. Hutchinson. I would agree with you.
    Mr. Conyers. And, finally, Mr. Wampler, you represent 
hundreds and hundreds of former U.S. attorneys.
    Do you think that they would join with myself and Mr. 
Berman and Mr. Scott, all Members of this Committee, that we 
move back--we are not creating a new system.
    We are going back to a system that was taken out in a 
conference report and which nobody knew that this had happened. 
This was not debated in the Committees, and was never debated 
on the floor of the Congress.
    It appeared, as you know how these things on conference 
reports happen.
    Mr. Wampler. The debate that I had seen among the officers 
and directors was that the old system worked. It was upheld in 
the courts regarding the various balance of power and it 
provided a practical incentive for the President to nominate a 
new U.S. attorney.
    So for those reasons, the consensus that I got from our 
members was to go back to what was there before.
    Ms. Sanchez. The time of the gentleman has expired.
    The Chair would now like to recognize the gentleman from 
Ohio, Mr. Jordan.
    Mr. Jordan. Thank you, Madam Chair.
    Mr. Terwilliger, is your critique of the old system a 
simple separation of powers argument or were there practical 
problems over that, I believe, approximately 20-year period 
when it was in effect?
    Mr. Terwilliger. Thank you for asking me, because there 
were practical problems and I think there are practical 
problems.
    I was appointed United States attorney three times, the 
first by the court, then by the attorney general, then by the 
President, while the political process sorted itself out.
    I had colleagues at the time, I can remember one in 
particular, it is called the great sofa story, which Mr. 
Smietanka may remember, where the court appointed one U.S. 
attorney. When that appointment ran out, the attorney general 
then appointed another individual to be interim. That ran out 
and it reverted back to the court again and the sofa that one 
of those U.S. attorneys used had to keep being moved in and out 
of the offices as it changed.
    There is a real possibility where the chief judge does not 
consult with the department about the appointment, that you 
could have successive different individuals in there.
    I really think, as a practical matter, what I said in my 
remarks, I really well and truly believe, and that is if you 
are going to give the responsibility for running these offices 
to the department and the attorney general, then please give 
them the authority to put the people in there who have to do 
the job.
    Mr. Jordan. And let me pick up on something that Mr. 
Hutchinson said in his testimony.
    He talked about the weight that comes from the ability to 
say, ``I serve at the pleasure of the President,'' and I would 
certainly agree with that.
    Would the panel agree that that is the case? You are all 
shaking your head.
    Then maybe my question should go to Mr. Smietanka here.
    Do you think that weight is then diminished if, in fact, 
the attorney has not been appointed by the Administration and 
has, in fact, been appointed by the judge who that attorney 
may, in fact, stand in front of?
    Mr. Smietanka. Well, I think you caught it, except for one 
word and that was diminished because of an appointment by the 
Administration.
    I think the operative word----
    Mr. Jordan. I don't think it matters. I think the----
    Mr. Smietanka. No, it does. No, no.
    Mr. Jordan. Well, can that person still say that he or she 
fully serves at the pleasure of the President, when, in fact, 
the President is not the one putting them in front of--not 
responsible for them being in front of the judge that they are 
now bringing the cases?
    Mr. Smietanka. But your question was, with deference here, 
is that you said does the weight of being a presidential 
appointment, is that of significance in doing your job.
    Mr. Jordan. And you shook your head ``yes.''
    Mr. Smietanka. Absolutely, absolutely. A presidential 
appointment, Senatorial confirmation gives you gravitas inside 
the department, outside the department and wherever you go.
    Now, it is not quite the same thing with an attorney 
general appointment, an interim attorney general appointment.
    Mr. Jordan. That wasn't my question. My question was----
    Mr. Smietanka. I thought it was.
    Mr. Jordan [continuing]. The attorney general appointment, 
presidential appointment, prior to confirmation versus an 
appointment by the judiciary, where the President hasn't 
weighed in on that individual.
    Neither one are going to be confirmed, we understand that. 
It is just who put them there.
    My point is I believe if, in fact, the AG put him there, in 
that 120-day time period, they are still subject to withdrawal 
by the President and the President put them there.
    So there has to be more weight with that individual under 
that circumstance than when the judiciary does it.
    Mr. Smietanka. My whole point here, as I mention in my 
prepared remarks, is that we should speed the process along for 
getting a presidentially-appointed, Senatorially-confirmed U.S. 
attorney.
    Mr. Jordan. Agreed.
    Mr. Smietanka. That is the key. I happen to think that 
because of the--this is unfortunate. This is a comment on 
Washington and the world today.
    The confirmation process can drag on for a long time and we 
need to push people to get it done fairly and expeditiously.
    I sat for a year----
    Mr. Jordan. So you believe a judge appointing it pushes it 
quicker and faster than the Administration appointing it, not 
taking in the fact the separation of power argument.
    Mr. Smietanka. I agree. The separation of power, that is 
done. That is a passe argument.
    What is important here is----
    Mr. Jordan. I disagree.
    Mr. Smietanka. Well, it is passe according to Morrison v. 
Olson. But the Berman bill provides for attorney general 
appointment.
    As I said before, it doesn't make much difference whether 
it is 120 days or 150 days or whatever it is or 5 days.
    My point is that the danger of that judge getting out there 
and getting involved should move the legislature, the Senate, 
not this body, the other body, to get moving and that is the 
pressure that I think is important.
    Ms. Sanchez. The time of the gentleman has expired.
    The Chair would now like to recognize the gentleman from 
Georgia, Mr. Johnson, for 5 minutes.
    Mr. Johnson. Thank you.
    Mr. Smietanka, the USA PATRIOT Improvement and 
Reauthorization Act of 2005, which was signed into law on March 
9, 2006, amended 28 USC section 546 in two critical respects.
    First, the act effectively removed district court judges 
from the interim appointment process and vested the attorney 
general with the sole power to appoint interim United States 
attorneys, and I believe that you all had been talking about 
that with respect to the last question or series of questions.
    But, secondly, the act eliminated the 120-day limit on how 
long an interim United States attorney appointed by the 
attorney general could serve and, as a result, judicial input 
in the interim appointment process was eliminated and, perhaps 
more importantly, it created a possible loophole that could 
permit United States attorneys appointed on an interim basis to 
serve indefinitely without Senate confirmation.
    What is your thought on the ability of an interim U.S. 
attorney to serve for an indefinite amount of time, never to be 
confirmed by the Senate?
    Mr. Smietanka. That has happened. In Puerto Rico, for 6.5 
years, we had had interim U.S. attorneys. That caused a great 
deal of controversy in Puerto Rico because of that. That was 
during the 1990's, during the Clinton administration.
    In the Bush administration and the Reagan administration, 
the same problem or virtually the same problem happened with 
the Virgin Islands.
    Mr. Johnson. Now, under the Clinton administration, though, 
it happened. I don't know how it happened under 28 USC 546(c), 
but it certainly can happen, according to the current law that 
went into effect on March 6, 2006, signed into law.
    And I don't really want to talk about what happened in 
Puerto Rico. What I want to talk about is the current state of 
the law now and whether or not you think it should revert back 
to how it was in accordance with the bill that has been 
introduced or the resolution that has been introduced by 
Representatives Berman and Conyers.
    Mr. Smietanka. My point is what I said earlier, that we 
should do everything we can to get a presidential nominee to 
the Senate, get them confirmed in the office, because I think 
it is extremely important that the President have that kind of 
person, with that kind of swag, if you will, or clout as the 
U.S. attorney, and I think that that, by definition, is in that 
process.
    The person who is the--I want to use this in the proper 
term, I am using the term political, a political appointment or 
a policy appointment.
    One of the factors which is very important, I think, for a 
good U.S. attorney is to have a comfort level with making 
political/policy decisions, dealing with the public. These are 
issues, Congressman.
    Mr. Johnson. And they can do so knowing that they are 
appointed and confirmed for a full 4-year term or until such 
time as the President would leave office.
    Mr. Smietanka. I think there is another aspect, too, and 
somebody else mentioned, somebody else asked this question.
    Can U.S. attorneys carry over into the next presidential 
term and is that appropriate? Maybe that is the question that 
wasn't asked, is it appropriate.
    I would say it is.
    Mr. Johnson. Certainly, it is authorized that they would 
serve until such time as the next appointee was confirmed by 
the Senate.
    But what are your thoughts on that, Mr. Wampler?
    Mr. Wampler. As I expressed before, the general consensus 
of the officers and directors of the National Association of 
Former United States Attorneys was that the old system worked 
relatively well.
    The constitutional challenges were all turned back. It is a 
resolved issue regarding the separation of powers. And it 
provides incentive for the President to get the nominations in 
faster and to get the Senate to look everybody in the eye.
    Mr. Johnson. Good.
    How can you defend it, Mr. Terwilliger? How can you defend 
the current scheme?
    Mr. Terwilliger. For the reasons I mentioned, because the 
current scheme could conceivably result in the circumstance you 
described, which I agree with you is an undesirable 
circumstance.
    It isn't a reason, in my judgment, respectfully, to throw 
the baby out with the bathwater. I still think the benefits of 
having the attorney general make the interim appointment are 
preferable.
    And, again, I think if it were abused, for the reasons----
    Mr. Johnson. What about the----
    Ms. Sanchez. The time of the gentleman has expired.
    Mr. Johnson. The cap on----
    Ms. Sanchez. I am sorry. If you are clarifying the point.
    Mr. Johnson. There being no time limit on how long an 
interim appointee could serve.
    Mr. Terwilliger. I take your point and I think----
    Mr. Johnson. Is that good or bad?
    Mr. Terwilliger. Well, I think anything that moves it back 
to the district judges is not well advised. That is my 
position.
    I do think it is an undesirable outcome if an interim 
appointment lasts for an extended period of time.
    There may be circumstances, given the nature that these are 
political appointments, where there will be a political 
stalemate of some kind and having it revert to the district 
court, to me, does not justify taking the process out of the 
political realm that it is designed by Congress and by statute 
to be in.
    But Congress makes the judgment on this, it is your 
determination.
    Ms. Sanchez. The gentleman's time has expired.
    We have among the Subcommittee Members a colleague from the 
Judiciary full Committee, who is, in fact, the author of the 
bill that we are currently discussing.
    He has been patient and has sat in on the majority of the 
testimony given today by the three different panels.
    I would ask unanimous consent that he be granted 5 minutes 
to question the last panel of witnesses.
    Are there any objections?
    Without objection, so ordered.
    Mr. Berman, you are recognized for 5 minutes.
    Mr. Berman. Well, thank you, Madam Chairwoman, and I am 
cognizant of the time.
    But discarding the admonition that one shouldn't ask 
questions that might draw out answers that he didn't want to 
hear, I would like to ask Mr. Terwilliger a couple of 
questions.
    Good to see you again, by the way.
    Mr. Terwilliger. You, too, sir.
    Mr. Berman. And I would like to follow-up on Mr. Johnson's 
questions.
    In my hypothetical, if the President of the United States, 
newly elected, seeing a Senate and a Senate Judiciary Committee 
that he thinks would constrain him more than he wants in the 
context of who he would like to be administering justice 
through these U.S. attorney posts, decides the way we are going 
to handle this is name interim U.S. attorneys for the duration 
of the time that the Senate looks adverse to the people we 
want, would you think that would be a wise and good policy?
    Mr. Terwilliger. No, and if I had the privilege of advising 
the President, I would tell him that was a very bad policy.
    But that being said----
    Mr. Berman. I got the answer I wanted.
    Mr. Terwilliger. Okay.
    Mr. Berman. I understand your point. It could very well be 
that there is not a separation of powers constitutional issue 
in this, but if I were you and you had been given an 
opportunity, you would have responded to that point by saying, 
``But from a policy matter, do you really want district judges 
having the authority at some point to name the chief prosecutor 
in the district in which they are presiding?''
    Mr. Terwilliger. Well, that is my point, Mr. Berman.
    Mr. Berman. Right, and I understand that point.
    When the Chairman and I introduced this bill, we didn't go 
back to the pre-1986 or 1984 formulation where the district 
court makes that appointment and, more than that, there may be 
even reasons not to do it this way.
    But I guess I would like you to respond to this context. We 
pass a reauthorization of the PATRIOT Act. It goes through both 
houses. The Justice Department never comes forward with this 
suggested change.
    It goes to a conference committee. The people on the 
conference committee have no recollection of this, including 
the Chairman of the Senate conferees, and we know, we think we 
know, we know nothing for sure, but we think we guess that what 
probably happened is the Justice Department got the staff of 
either the House or Judiciary to insert this at the last 
minute, as Mr. Conyers said, never debated, never discussed.
    And all I am saying is, don't you think it is a better 
situation to go back to the status quo ante and then have a 
deliberative discussion of the best way to avoid the potential 
that you say is bad or a 4-year interim U.S. attorney appointed 
by the attorney general to avoid the constraints that the 
confirmation process would otherwise put on him versus the 
concerns one could have about district judges having the 
authority?
    They hardly ever did it, I take it, since the Reagan 
administration suggested this change in the law, until the 
reauthorization of the PATRIOT Act.
    But having the authority at some point, if that interim 
U.S. attorney wasn't doing the job, in the district judge's 
mind or in the chief judge's mind, having the authority to 
substitute somebody else whom the attorney general could get 
rid of the next day by a new appointment as interim U.S. 
attorney.
    In that context, don't you think the best way to do this is 
straightforwardly and openly and have this discussion on 
policy?
    Mr. Terwilliger. Well, I might agree--well, let me say, 
first of all, I have probably been around Washington too long, 
because I am starting to enjoy this discussion.
    But, secondly, I would not even begin to consider how 
mystery provisions wind up in bills and what that means to----
    Mr. Berman. You don't think this was the first time that 
ever happened?
    Mr. Terwilliger [continuing]. Of our political process.
    But I can agree with everything you said in terms of it 
being directed toward an open and robust debate about this, 
because I think, as a citizen, that is how we get the best 
result, is with an open and robust debate.
    I do not think, however, it is necessary to revert to the 
prior system in order to have that debate. We can have the 
debate with the current system in place.
    Mr. Berman. The current system allows an Administration to 
propose, as Mr. Johnson pointed out, without end, an interim 
U.S. attorney, never submit a name for confirmation, never 
submit that person for confirmation, and allow him to spend, in 
this case of this Administration, 2 years.
    I don't know what their intentions are, but the current 
situation allows that.
    We would like to have a discussion about this without that 
authority being vested that we had no idea was being proposed 
to be vested in a President.
    Mr. Terwilliger. I would presume their intentions are 
honorable, until I see the contrary.
    And I would simply say that as was borne out before in the 
questioning, there is no question that if the President really 
wanted to do that and you and the Chairman's bill were enacted, 
he could still do that by removing the district judge's interim 
appointment and starting over again.
    Ms. Sanchez. The time of the gentleman has expired.
    I want to thank everybody for their participation, as I 
said, and their time this evening.
    Without objection, Members will have 5 legislative days to 
submit any additional written questions, which we will forward 
to the witnesses and ask that you answer as promptly as you 
can, to be made part of the record.
    Without objection, the record will remain open for 5 
legislative days for the submission of any other additional 
material.
    I also just want to get on the record, number one, that we 
will be requesting additional information from the DOJ and hope 
that they will comply with our request in a forthright and 
expedient manner.
    And I also want to warn Members of the Subcommittee that we 
will have further discussions on H.R. 580, the Berman bill, 
down the line in the future.
    Mr. Cannon. Will the gentlelady yield?
    Ms. Sanchez. I will yield.
    Mr. Cannon. I would just like to congratulate the 
gentlelady on her first hearing. It was well run and with 
difficult people.
    You managed it remarkably well and I look forward to 
working with the gentlelady in the future hearings and markups.
    Ms. Sanchez. I thank the Ranking Member.
    I thank everybody for their time and their patience.
    The hearing on the Subcommittee on Commercial and 
Administrative Law is adjourned.
    [Whereupon, at 7:25 p.m., the Subcommittee was adjourned.]
                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

 Prepared Statement of the Honorable Steve Cohen, a Representative in 
   Congress from the State of Tennessee, and Member, Subcommittee on 
                   Commercial and Administrative Law
    The Administration's recent mass dismissal of eight U.S. Attorneys 
raises deeply troubling questions about its attitude towards the rule 
of law. Based on press reports and public comments made by some of the 
dismissed U.S. Attorneys, I strongly suspect that these firings were 
carried out for rank political reasons that had nothing to do with 
sound law enforcement. Today's hearing will shed the much needed glare 
of publicity on the Administration's disturbingly political approach to 
the administration of justice.
    While I understand that U.S. Attorneys serve at the President's 
pleasure, they also have an obligation to support and defend the 
Constitution and laws of the United States in a non-political manner. 
Because of this independent obligation, U.S. Attorneys rarely have been 
forced to resign by the Administration that appointed them. Indeed, in 
the 25 years prior to the dismissals at issue here, only three U.S. 
Attorneys had been forced out of their positions in a manner similar to 
the eight cases at issue here, out of 486 U.S. Attorneys confirmed 
during that time period. Thus, suddenly asking for the resignations of 
eight U.S. Attorneys--many of whom were conducting or had conducted 
corruption investigations or prosecutions of public officials--in just 
a few months' time seems very suspicious.
    It is also telling that the Administration appears to be surprised 
by the controversy that it has engendered. No doubt, the 
Administration's reaction stems from the fact that it is not accustomed 
to aggressive congressional oversight, a result of Congress's almost 
complete abdication of its oversight responsibilities during the first 
six years of this Administration. If nothing else, today's hearing 
sends a clear message to the Administration that it can longer engage 
in political shenanigans without having to answer publicly for its 
behavior when something as central to the Nation's creed as the rule of 
law is at stake.
  Letter from Richard A. Hertling, Acting Assistant Attorney General, 
               providing personnel data on U.S. Attorneys
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


E-mail from H.E. Cummins to five other U.S. Attorneys regarding a phone 
  call with Mike Elston, submitted by the Honorable Linda Sanchez, a 
     Representative in Congress from the State of California, and 
     Chairwoman, Subcommittee on Commercial and Administrative Law
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

Copy of Medal of Merit presented to David C. Iglesias, submitted by Mr. 
 David C. Iglesias, former United States Attorney for the District of 
                               New Mexico
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


 Letter from Michael A. Battle to David C. Iglesias, submitted by Mr. 
 David C. Iglesias, former United States Attorney for the District of 
                               New Mexico
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

Letter submitted by Richard L. Delonis, President, National Association 
                  of Assistant United States Attorneys
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


Answers to Post-Hearing Questions from John A. Smietanka, former United 
          States Attorney for the Western District of Michigan
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

  Answers to Post-Hearing Questions from George J. Terwilliger, III, 
          former Deputy Attorney General of the United States
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

Answer to Post-Hearing Questions from Atlee W. Wampler, III, President, 
         National Association of Former United States Attorneys
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

  Answers to Post-Hearing Questions from Daniel Bogden, former United 
               States Attorney for the District of Nevada
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

  Letter from Christopher K. Barnes to Daniel Bogden transmitting the 
 2003 E.A.R. report, submitted by Daniel Bogden, former United States 
                  Attorney for the District of Nevada
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

 Letter from Mary Beth Buchanan to Daniel Bogden, submitted by Daniel 
    Bogden, former United States Attorney for the District of Nevada
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

  Letter from Michael A. Battle to Daniel Bogden, submitted by Daniel 
    Bogden, former United States Attorney for the District of Nevada
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

  Answers to Post-Hearing Questions from Carol C. Lam, former United 
        States Attorney for the Southern District of California
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

 Letter from Adele J. Fasano, Director, Field Operations, U.S. Customs 
and Border Protection, submitted by Carol C. Lam, former United States 
            Attorney for the Southern District of California
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

       Answers to Post-Hearing Questions from David C. Iglesias, 
      former United States Attorney for the District of New Mexico
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

   Answers to Post-Hearing Questions from H.E. (Bud) Cummins, former 
      United States Attorney for the Eastern District of Arkansas
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

         Answers to Post-Hearing Questions from Paul Charlton, 
       former United States Attorney for the District of Arizona
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

  E-mails from Justice Department officials regarding Paul Charlton, 
   submitted by Paul Charlton, former United States Attorney for the 
                          District of Arizona
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

 Letter from Michael C. Nicley, former Chief Patrol Agent, U.S. Border 
 Patrol, submitted by Paul Charlton, former United States Attorney for 
                        the District of Arizona
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

Answers to Post-Hearing Questions from John McKay, former United States 
            Attorney for the Western District of Washington
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                 
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