[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
U.S. GOVERNMENT PRINTING OFFICE
33-809 PDF WASHINGTON DC: 2007
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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]