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



 
   CONTINUING INVESTIGATION INTO THE U.S. ATTORNEYS CONTROVERSY AND 
                       RELATED MATTERS (PART IV)

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


                                HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                            OCTOBER 3, 2008

                               __________

                           Serial No. 110-213

                               __________

         Printed for the use of the Committee on the Judiciary


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



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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' 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
WILLIAM D. DELAHUNT, Massachusetts   CHRIS CANNON, Utah
ROBERT WEXLER, Florida               RIC KELLER, Florida
LINDA T. SANCHEZ, California         DARRELL ISSA, California
STEVE COHEN, Tennessee               MIKE PENCE, Indiana
HANK JOHNSON, Georgia                J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio                   STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois          TOM FEENEY, Florida
BRAD SHERMAN, California             TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York          JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota

            Perry Apelbaum, Staff Director and Chief Counsel
      Sean McLaughlin, Minority Chief of Staff and General Counsel


                            C O N T E N T S

                              ----------                              

                            OCTOBER 3, 2008

                                                                   Page

                           OPENING STATEMENTS

The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Chairman, Committee on the 
  Judiciary......................................................     1
The Honorable Linda T. Sanchez, a Representative in Congress from 
  the State of California, and Member, Committee on the Judiciary     1
The Honorable Chris Cannon, a Representative in Congress from the 
  State of Utah, and Member, Committee on the Judiciary..........     3

                               WITNESSES

The Honorable Glenn A. Fine, Inspector General, U.S. Department 
  of Justice
  Oral Testimony.................................................     6
  Prepared Statement.............................................     9

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Honorable Lamar Smith, a Representative in Congress from the 
  State of Texas, and Ranking Member, Committee on the Judiciary.     3
Letters submitted by the Honorable Darrell Issa, a Representative 
  in Congress from California, and Member, Committee on the 
  Judiciary......................................................    23

                                APPENDIX
               Material Submitted for the Hearing Record

Response to Post-Hearing Questions submitted to the Honorable 
  Glenn A. Fine, Inspector General, U.S. Department of Justice...    66

                        OFFICIAL HEARING RECORD
      Material Submitted for the Hearing Record but not Reprinted

Report from the U.S. Department of Justice entitled: An Investigation 
    into the Removal of Nine U.S. Attorneys in 2006, U.S. Department of 
    Justice, Office of the Inspector General, U.S. Department of 
    Justice, Office of Professional Responsibility, September 2008. 
    This report is available at the Committee and can also be accessed 
    at http://www.usdoj.gov/oig/special/s0809a/final.pdf


   CONTINUING INVESTIGATION INTO THE U.S. ATTORNEYS CONTROVERSY AND 
                       RELATED MATTERS (PART IV)

                              ----------                              


                        FRIDAY, OCTOBER 3, 2008

                          House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Committee met, pursuant to notice, at 10:55 a.m., in 
room 2141, Rayburn House Office Building, the Honorable John 
Conyers, Jr. (Chairman of the Committee) presiding.
    Present: Representatives Conyers, Nadler, Scott, Watt, 
Lofgren, Delahunt, Wexler, Sanchez, Cohen, Johnson, Davis, 
Cannon, and Issa.
    Staff Present: Sam Sokol, Majority Counsel; Daniel Flores, 
Minority Counsel; and Adam Russell, Majority Professional Staff 
Member.
    Mr. Conyers. Good morning. Today we are pleased to welcome 
the Inspector General of the Department of Justice, Glenn Fine, 
to testify about the U.S. attorney firings. And let me 
recognize also two fine former United States attorneys who are 
with us today, Dan Bogden of Nevada and John McKay of 
Washington State.
    As we begin I would like to commend Mr. Fine for 8 years' 
outstanding service as inspector general on a series of issues: 
national security letters, torture, improper politicization of 
the Department of Justice. Mr. Fine and his team have 
approached their work with the utmost independence and skill. 
And in so doing, they have not only bettered the Department and 
helped our government live up to its own ideals, they have 
encouraged all of us to do the same. And so today we will 
review the general's findings on the U.S. attorney matter.
    And I want to begin by inviting the Chairperson of the 
Subcommittee that has had so much to do with this, who has done 
such an excellent job, to begin this discussion. And I would 
like to recognize Chairwoman Linda Sanchez.
    Ms. Sanchez. Thank you, Mr. Chairman. During the first 6 
years of the Bush administration, Congress neglected one of its 
primary duties: to conduct rigorous oversight of the executive 
branch. After the Democrats gained control of the House of 
Representatives in 2006, the Judiciary Committee and the 
Subcommittee on Commercial and Administrative Law devoted 
significant time to examining the Justice Department. Had 
previous Congresses devoted time to this essential function, I 
think the Department might not have wandered so far from its 
core mission, which is to ensure he fair and impartial 
administration of justice for all Americans.
    We started the investigation into the firings of nine U.S. 
attorneys because of the troubling prospect that partisan 
politics had contaminated our system of justice. Despite 
mounting evidence uncovered in the Committee's investigation 
that this was the case, the minority stubbornly defended 
unethical, incompetent and perhaps criminal conduct by the 
Department's senior leadership, alleging that this was merely a 
fishing expedition. Despite acknowledging this Committee's 
tremendous productivity during the 110th Congress, the minority 
consistently criticized our investigation as a partisan witch-
hunt, a waste of time, and a fishing expedition that had caught 
no fish. Clearly the scathing 392-page report from the Justice 
Department Inspector General and Office of Professional 
Responsibility released on Monday vindicates the time and 
effort expended to try to get to the bottom of the U.S. 
attorney firing controversy.
    I was disturbed but not surprised that the report found 
improper political considerations to be an important factor in 
the removal of several of the fired U.S. attorneys. The report 
also determined that the firings severely damaged the 
credibility of the Department and raised doubts about the 
integrity of the Department's prosecutorial decision-making. 
Furthermore, the report's conclusion that Attorney General 
Gonzales and Deputy Attorney General McNulty's lack of 
supervision and general lack of knowledge of the removal 
process showed that the top ranks of the Justice Department 
were asleep at the switch.
    Given the growing public record that the White House 
improperly injected partisan politics into our justice system, 
I was troubled by the White House's brazen snub of its own 
Justice Department. Because of the White House's refusal to 
cooperate with the IG OPR investigation, we still have major 
gaps in information as to why these U.S. attorneys were fired.
    That is why I support the report's recommendation that a 
counsel be specifically appointed by the Attorney General to 
work with IG OPR to conduct further investigations and 
ultimately determine whether the evidence demonstrates that any 
criminal offense was committed with regard to U.S. attorney 
firings or the testimony of any witness related to the U.S. 
attorney firings.
    However, I am concerned that Attorney General Michael 
Mukasey's appointment of Nora Dannehy, the acting U.S. attorney 
in Connecticut, may prevent the truth about the firings from 
ever being released. I am concerned that Ms. Dannehy's findings 
will remain hidden because of criminal grand jury secrecy 
requirements and the absence of a public reporting requirement 
as part of her appointment. I am also troubled by the fact that 
Ms. Dannehy will lack much needed independence because she has 
been appointed as the acting U.S. attorney for the District of 
Columbia rather than as the special counsel under the 
Department's regulations.
    Earlier this year Attorney General Mukasey refused to let 
the D.C. U.S. attorney prosecute contempt citations for Harriet 
Miers and Joshua Bolten. I am concerned that without 
appropriate safeguards, this or a future Attorney General could 
similarly intervene on Ms. Dannehy's investigation.
    Because the public deserves to know the full extent to 
which the Bush administration has undermined the independence 
and nonpartisan tradition of the Justice Department, the White 
House must immediately take steps to allow Congress to conclude 
our investigation into the firing of the U.S. attorneys and the 
politicization of the Justice Department. Instead of hiding 
behind specious claims of immunity and executive privilege, the 
White House should make Karl Rove and Harriet Miers available 
for on-the-record testimony and produce documents improperly 
withheld. Until and unless the White House cooperates with both 
the internal and congressional investigations, the Justice 
Department will not be able to remove the dark clouds of 
scandal that have devastated this once venerable institution.
    And with that, I would like to thank the Chairman for all 
of his hard work on this issue as well. And I yield back.
    Mr. Conyers. I thank the gentlelady. I am pleased now to 
recognize Chris Cannon, our distinguished colleague from Utah. 
Who is Ranking Member on Chairwoman Sanchez's Subcommittee.
    Mr. Cannon. Thank you, Mr. Chairman. I ask unanimous 
consent to include the statement of the Ranking Member of the 
full Committee, Mr. Smith, in the record.
    Mr. Conyers. Without objection, so ordered.
    [The prepared statement of Mr. Smith follows:]
 Prepared Statement of the Honorable Lamar Smith, a Representative in 
Congress from the State of Texas, and Ranking Member, Committee on the 
                               Judiciary
    Following the release of the Inspector General's report regarding 
the removal of several U.S. Attorneys, Judiciary Committee Democrats 
stated the report ``confirmed'' their ``fears.''
    The report, if read objectively, should calm, not confirm those 
fears. In fact, it validates what Republicans on this Committee have 
expressed in our Minority Views.
    The Inspector General found no evidence to support claims of a 
``grand conspiracy.'' White House and Department officials did not 
dismiss a host of U.S. Attorneys to favor Republicans and punish 
Democrats.
    In fact, according to the IG's report, the White House itself was 
misled by the Justice Department's Chief of Staff who was in charge of 
the removal process and led then-White House Counsel Harriet Miers to 
believe that the Department's review of U.S. Attorneys had been 
``painstaking'' and its results ``deserved her confidence.''
    There is no evidence of a politically-motivated plot at the White 
House and no evidence of wrongdoing on the part of White House 
officials.
    The report found no ``smoking gun'' to support the supposed need 
for litigation to enforce subpoenas against Harriet Miers and Josh 
Bolten. On the IG's recommendation, Attorney General Mukasey has 
appointed a federal prosecutor to continue the investigation.
    The Committee's ``need,'' if any, to compel information from Ms. 
Miers and Mr. Bolten is therefore extinguished. If a grand jury 
subpoenas these officials, we expect they will appear and testify. The 
White House has already agreed to cooperate with the prosecutor.
    The appointment of a federal prosecutor also eliminates the 
Committee's supposed need to pursue a contempt resolution against Karl 
Rove. The federal prosecutor should handle any additional questions for 
current or former Administration officials.
    As to the dismissal of David Iglesias, former U.S. Attorney for the 
District of New Mexico, that too is resolved by the naming of a federal 
prosecutor.
    The Inspector General was not able to talk with every witness or 
review every document he believed necessary. But the federal prosecutor 
has the legal tools to obtain that information if she chooses. I urge 
Committee members to let the prosecutor do her work without 
interference or partisan pressure.
    While the IG's report does not confirm House Democrats' fears; it 
has, unfortunately, strengthened one of my own.
    That is, that the investigation of the U.S. Attorneys matter has 
contributed to the ``criminalization'' of politics. For example, the IG 
concludes that it is improper for the Justice Department to consider 
whether a U.S. Attorney still has the confidence of their home state 
Senators.
    Unfortunately, the IG's report goes further, saying that even the 
following can be ``improper'' political considerations:

          responding to constituent complaints over whether a 
        U.S. Attorney is adequately pursuing important classes of 
        cases; and

          seeking to replace a U.S. Attorney who has served his 
        term with a well qualified candidate known to and trusted by 
        White House officials.

    ``Criminalizing'' the consideration of these actions threatens to 
undermine our constitutional system. As Members of Congress, we must 
not assert political influence over prosecutions or investigations. 
However, that should not limit our ability to voice concerns. That's 
part of our oversight authority and our responsibility to our 
constituents.
    I am disappointed by the findings in the report. I am also 
disappointed that so much time and effort has been spent investigating 
individuals who were guilty of no crime. We owe them an apology for 
unfairly damaging their reputations and for unnecessarily forcing them 
to spend personal funds.

    Mr. Cannon. Thank you. This has been a long journey. And in 
fact I have characterized it as a fishing expedition. There has 
been a great deal of rhetoric, things like whether or not the 
U.S. attorneys should have independence from partisan issues or 
the role of the Justice Department.
    I guess when President Clinton fires all the U.S. 
attorneys, that is not partisan. When the Department undertakes 
to look at who is doing what the Department wants, that becomes 
a different issue.
    Following the release of the inspector general's report 
regarding the removal of several U.S. attorneys, Judiciary 
Committee Democrats stated the report confirmed their fears. 
The report if read objectively should calm, not confirm, those 
fears. It in fact validates what certain Republicans on this 
Committee have expressed and our minority views on many 
occasions. The inspector general found no evidence to support 
claims of a grand conspiracy. White House department officials 
did not dismiss a host of U.S. attorneys to favor Republicans 
and punish Democrats. In fact, according to the IG's report, 
the White House itself was mislead by the Justice Department's 
chief of staff who was in charge of the removal process and 
lead then White House counsel Harriet Miers to believe that the 
Department's review of U.S. attorneys had been painstaking in 
its results and its results deserved her confidence.
    There is no evidence of a politically motivated plot at the 
White House and no evidence of wrongdoing on the part of White 
House officials. The report found no smoking gun to support the 
supposed need for litigation to enforce subpoenas against 
Harriet Miers and Josh Bolten. On the IG's recommendation, 
Attorney General Mukasey has appointed a Federal prosecutor to 
continue the investigation. The Committee's need, if any, to 
compel information from Ms. Miers and Mr. Bolten is therefore 
extinguished. If a grand jury subpoenas these officials, we 
expect they will appear and testify.
    The White House has already agreed to cooperate with the 
prosecutor, the appointment of a Federal prosecutor who also 
eliminates the Committee's supposed need to pursue a contempt 
resolution against Karl Rove. The Federal prosecutor should 
handle any additional questions for current or former 
Administration officials.
    As to the dismissal of David Iglesias, you will recall that 
is the fellow who, instead of using the telephone or e-mail, 
used a press conference to inform his superiors in the 
Department of Justice of his communication months earlier with 
his Senator. As for him, former U.S. attorney for the District 
of New Mexico, that too was resolved by the naming of a Federal 
prosecutor.
    The inspector general was not able to talk with every 
witness or review every document he believed necessary. But the 
Federal prosecutor has the legal tools to obtain that 
information if she chooses.
    I urge Committee Members to let the prosecutor do her work 
without interference or, heaven help us, partisan pressure. 
While the IG's report does not confirm House Democrats' fears, 
it has unfortunately strengthened my own; that is, that the 
investigation of the U.S. attorneys matter has contributed to 
the criminalization of politics. For example, the IG concludes 
that improper political considerations can include the strength 
of support from home State senators.
    Unfortunately, the IG's report goes further, saying that 
even the following can be improper political considerations: 
responding to constituent complaints over whether U.S. 
attorneys adequately pursuing important classes of cases and 
seeking to replace a U.S. attorney who has served his term with 
a well-qualified candidate, known and trusted by White House 
officials.
    Criminalizing the consideration of these actions threatens 
to undermine our constitutional system. As Members of Congress, 
we must not assert political influence over prosecutions and 
investigations. However, that should not limit our ability to 
voice concerns about who is appointed and what the issues are 
that have priority. That is part of our oversight authority and 
our responsibility to our constituents.
    I am disappointed by the findings in the report. I am also 
disappointed that so much time and effort has been spent 
investigating individuals who were guilty of no crime. We owe 
them an apology for unfairly damaging their reputations, for 
unnecessarily forcing them to spend personal funds, and for 
saying over and over and over again things that have proven not 
to be true.
    Thank you, Mr. Chairman. I yield back.
    Mr. Conyers. Well, I thank the gentleman from Utah. I would 
like to make available to him a copy of the inspector general's 
report,* but we have him here with us, and we are delighted 
that he is here. All other statements will be put in the record 
at this time.
---------------------------------------------------------------------------
    * The report referred to is not reprinted here but is available at 
the Committee and can also be accessed at http://www.usdoj.gov/oig/
special/s0809a/final.pdf.
---------------------------------------------------------------------------
    This detailed report that was submitted by the Inspector 
General for the Department of Justice leaves very little 
dispute that the firings were improper, that false statements 
were made to Congress and that the Justice Department has been 
severely damaged as a result. And it includes, I think in a 
very persuasive way, that political partisan considerations 
unfortunately were an important factor in the removal of 
several of the United States attorneys.
    David Iglesias was forced from office because New Mexico 
Republicans complained that he would not bring voter cases, and 
because he crossed two Members of Congress. Bud Cummins, forced 
out in Arkansas to make room for Karl Rove's assistant Tim 
Griffin. Our investigation has suggested other examples such as 
Republican complaints about fired prosecutor John McKay which 
further IG investigation may corroborate. The report makes 
equally clear that Administration officials made false 
statements to this Committee and the Congress.
    But we welcome Mr. Glenn Fine to give us his explanation 
and summary of the very important work that he did. And on 
behalf of the Committee, we are pleased to welcome you here 
today, sir.

           TESTIMONY OF THE HONORABLE GLENN A. FINE, 
         INSPECTOR GENERAL, U.S. DEPARTMENT OF JUSTICE

    Mr. Fine. Mr. Chairman, Mr. Cannon, Members of the 
Committee, thank you for inviting me to testify about the 
report----
    Mr. Conyers. Microphone.
    Mr. Fine. Thank you for inviting me to testify about the 
report by the Office of the Inspector General and the Office of 
Professional Responsibility into the removal of nine U.S. 
attorneys in 2006. The report we issued earlier this week 
describes how each of the nine U.S. attorneys were selected for 
removal and the process used to remove them. Our investigation 
focused on the reasons for the removals and whether the U.S. 
attorneys were removed for partisan political considerations. 
In addition, we investigated whether Department officials made 
false or misleading statements to Congress, the public, or to 
us concerning the removals.
    In my testimony today, I will briefly summarize the major 
findings from our report. Our investigation concluded that the 
process the Department used to select the U.S. attorneys for 
removal was fundamentally flawed and that Attorney General 
Gonzales delegated this entire project to his chief of staff, 
Kyle Sampson, with little direction or supervision. Gonzales 
eventually approved the removals of a group of U.S. attorneys 
without inquiring about the process Sampson had used to select 
them or why each name was on the removal list.
    Gonzales also claimed to us and to Congress an 
extraordinary lack of recollection about the removal process. 
For example, he testified that he did not remember the meeting 
in his conference room on November 27, 2006 when the plan was 
finalized and he approved the removals. This was not a minor 
personnel matter that should have been hard to remember. 
Rather, it related to an unprecedented removal of a group of 
high-level Presidential appointees.
    We also found that Deputy Attorney General McNulty had 
little involvement in or oversight of the removal process, 
despite his role as the immediate supervisor of U.S. attorneys. 
McNulty deferred to Sampson and did not raise concerns with 
regard to the plan itself or, except in a couple of cases, the 
evaluation of specific U.S. attorneys to be removed. Rather, 
McNulty distanced himself from the project both, while it was 
ongoing and after it was implemented.
    We also found no evidence that Gonzales, McNulty, Sampson 
or anyone else in the Department carefully evaluated the basis 
for each U.S. attorney's removal or attempted to ensure that 
there were no improper political reasons for their removals.
    Moreover we found conflicting testimony about the reasons 
most of the U.S. attorneys were recommended for removal. In 
some cases, neither Sampson nor any other Department official 
acknowledged recommending that the U.S. attorney be placed on 
the removal list.
    In other cases, the Department's senior leaders did not 
even know why Sampson had placed the U.S. attorney on the list. 
The most serious allegations that arose in the aftermath of the 
removals were that several of the U.S. attorneys were forced to 
resign based on improper political consideration. Our 
investigation found substantial evidence that partisan 
political considerations did play a part in the removal of 
several of the U.S. attorneys. The most troubling example was 
the removal of David Iglesias, the U.S. attorney for New 
Mexico. As we described in detail in the report, we concluded 
that complaints from New Mexico Republican politicians and 
party activists to the White House and the Department of 
Justice about Iglesias' handling of voting fraud and public 
corruption cases led to his removal. Yet the Department never 
objectively assessed these complaints. Rather, based upon these 
complaints and the resulting loss of confidence in Iglesias, 
his name was placed on the removal list, and in December 2006 
he was told to resign.
    Sampson also acknowledged that he considered whether 
particular U.S. attorneys identified for removal had political 
support. For example, Sampson acknowledged the deleting from 
his removal list the names of several U.S. attorneys who he 
considered mediocre because he believed they had the political 
support of their home State senators, and he did not think the 
Administration would want to risk a fight with them over their 
removal.
    While U.S. attorneys are Presidential appointees who may be 
dismissed for any lawful reason, or no reason, they cannot be 
dismissed for an illegal or improper reason. U.S. attorneys 
should make their prosecutive decisions based on the 
Department's priorities and the law and the facts of each case, 
not on a fear of being removed if they lose political support.
    If a U.S. attorney must maintain the confidence of home 
State political officials to avoid removal, regardless of the 
merits of the U.S. attorney's prosecutorial decisions, respect 
for the Department of Justice's independence and integrity will 
be severely damaged and every U.S. attorney's prosecutorial 
decisions will be suspect.
    Our report found that senior Department officials, 
particularly Attorney General Gonzales and Deputy Attorney 
General McNulty, abdicated their responsibility to safeguard 
the integrity and independence of the Department by failing to 
ensure that the removal of U.S. attorneys was not based on 
improper political considerations.
    Our report devotes a separate chapter to each of the nine 
U.S. attorneys removed in 2006, describing in detail the 
reasons the Department offered for their removal and our 
analysis and conclusions regarding why each U.S. attorney was 
actually removed.
    Our report also analyzes the conduct of senior Department 
officials and their significant failings in designing, 
overseeing, and implementing a removal process that was 
fundamentally flawed from start to finish. We also found that 
Department officials made misleading statements to the Congress 
and to the public about the removals.
    We believe our investigation was able to uncover most of 
the facts relating to the reasons for the removal of most of 
the U.S. attorneys. However, there are gaps in our 
investigation because of the refusal of key witnesses to be 
interviewed by us, including Karl Rove, Harriet Miers, and 
Monica Goodling. In addition, the White House declined to 
provide us internal documents related to the removals of U.S. 
attorneys.
    Our report therefore recommended that the Attorney General 
appoint a counsel to assess the facts we have uncovered, work 
with us to conduct further investigation, and ultimately 
determine where the evidence demonstrates if any criminal 
offense was committed with regard to the removal of Iglesias or 
any other U.S. attorney, or the testimony of any witness 
related to the U.S. attorney removals. We made this 
recommendation for several related reasons:
    First, we believe it is important to ascertain the full 
facts relating to why the U.S. attorneys were removed.
    Second, we believe such a counsel should consider whether 
any Department official made false statements to Congress or to 
us about the reasons for the removal of Iglesias or any other 
U.S. attorney.
    Third, we believe a full investigation is necessary to 
determine whether other Federal criminal statutes were violated 
with regard to the removal of Iglesias or any other U.S. 
attorney.
    It is important to note that our report did not conclude 
that the evidence establishes that a violation of any criminal 
statute has occurred. However, we believe that the evidence 
collected in this investigation is not complete. We believe 
that the matter should be fully investigated, the facts and 
conclusions fully developed, and final decisions made based on 
all the evidence.
    In response to our recommendation, Attorney General Mukasey 
appointed Nora Dannehy, a career Federal prosecutor who 
currently serves as acting U.S. attorney in Connecticut to 
pursue this investigation. I hope she moves forward 
aggressively and expeditiously to address the unanswered 
questions identified in our report.
    In conclusion, the Department's removal of the U.S. 
attorneys and the controversy it created severely damaged the 
credibility of the Department. We believe that our 
investigation and the final resolution of issues raised in this 
report can help restore confidence in the Department by fully 
investigating and describing the serious failures in the 
process used to remove the U.S. attorneys and by providing 
lessons for the Department and how to avoid such failures in 
the future.
    That concludes my statement. I would be pleased to answer 
any questions.
    Mr. Conyers. Thank you very much, Mr. Fine.
    [The prepared statement of Mr. Fine follows:]
           Prepared Statement of the Honorable Glenn A. Fine
Mr. Chairman, Congressman Smith, and Members of the Committee on the 
Judiciary:

    I appreciate the opportunity to testify at this hearing about the 
investigation conducted by the Department of Justice Office of the 
Inspector General (OIG) and Office of Professional Responsibility (OPR) 
into the removal of nine U.S. Attorneys in 2006.
    The 358-page report issued earlier this week described how each of 
the U.S. Attorneys was selected for removal and the process used to 
remove them. Our joint investigation also focused on the reasons for 
the removal of each of the U.S. Attorneys, and whether they were 
removed for partisan political considerations, to influence an 
investigation or prosecution, or to retaliate for their actions in any 
specific investigation or prosecution. In addition, we investigated 
whether Department officials made false or misleading statements to 
Congress, to the public, or to us concerning the removals.
                              i. overview
    U.S. Attorneys are appointed by the President and confirmed by the 
Senate. Like other presidential appointees, they can be removed by the 
President for any reason or for no reason, as long as it is not an 
illegal or improper reason. Historically, however, U.S. Attorneys 
generally have not been removed except in cases of misconduct or when 
there was a change in Administrations. Prior to the events described in 
this report, the Department had never removed a group of U.S. Attorneys 
at one time because of alleged performance issues. However, on December 
7, 2006, seven U.S. Attorneys were told to resign from their positions: 
David Iglesias, Daniel Bogden, Paul Charlton, John McKay, Carol Lam, 
Margaret Chiara, and Kevin Ryan. In addition, two other U.S. Attorneys, 
Todd Graves and Bud Cummins, had been told to resign earlier in 2006.
    Our investigation concluded that the process that Department 
officials used to identify the U.S. Attorneys for removal was 
fundamentally flawed. In particular, we found that former Attorney 
General Alberto Gonzales and former Deputy Attorney General Paul 
McNulty failed to adequately supervise or oversee the removal process. 
Instead, Kyle Sampson, Gonzales's Chief of Staff, designed and 
implemented the process with virtually no oversight.
    We found that neither Gonzales, McNulty, Sampson, nor anyone else 
in the Department carefully evaluated the basis for each U.S. 
Attorney's removal or attempted to ensure that there were no improper 
political reasons for the removals. Moreover, after the removals became 
public the statements provided by Gonzales, McNulty, Sampson, and other 
Department officials about the reasons for the removals were 
inconsistent, misleading, or inaccurate in many respects.
    We believe our investigation was able to uncover most of the facts 
relating to the reasons for the removal of most of the U.S. Attorneys. 
However, as described more fully in our report, there are gaps in our 
investigation because of the refusal of key witnesses to be interviewed 
by us, including former White House officials Karl Rove, Harriet Miers, 
and William Kelley; former Department of Justice White House Liaison 
Monica Gooding; Senator Pete Domenici; and Steve Bell, his Chief of 
Staff. In addition, the White House declined to provide us internal 
documents related to the removals of the U.S. Attorneys.
    Our report recommended that a counsel specially appointed by the 
Attorney General assess the facts we have uncovered, work with us to 
conduct further investigation, and ultimately determine whether the 
evidence demonstrates that any criminal offense was committed with 
regard to the removal of any U.S. Attorney or with regard to the 
testimony of any witness related to the removals. After issuance of our 
report, Attorney General Mukasey appointed Nora Dannehy, a career 
federal prosecutor who currently serves as Acting U.S. Attorney in 
Connecticut, to further pursue this investigation.
A. Related Reports
    Our report on the removal of the nine U.S. Attorneys, issued on 
September 29, 2008, was the third of four reports of joint 
investigations conducted by the OIG and OPR into the U.S. Attorney 
removals and allegations of politicized hiring at the Department. Our 
first report in June 2008 examined hiring practices in the Department's 
Honors Program and Summer Law Intern Program and found that committees 
used by the Department to screen applications for the programs 
inappropriately used political or ideological affiliations to 
``deselect'' candidates in 2006 and in 2002.
    In July 2008, we issued a second joint report that examined the 
actions of Monica Goodling, the Department's former White House 
Liaison, and other staff in the Attorney General's office regarding 
allegations that they inappropriately used political or ideological 
affiliations in the hiring process for career Department positions. Our 
investigation found that Goodling, Sampson, and other staff in the 
Office of the Attorney General improperly considered political or 
ideological affiliations in screening candidates for certain career 
positions at the Department, in violation of federal law and Department 
policy.
    The OIG and OPR also jointly investigated allegations that former 
Civil Rights Division Acting Assistant Attorney General Bradley 
Schlozman and others used political or ideological affiliations in 
hiring and personnel decisions in the Department's Civil Rights 
Division. Because this investigation is ongoing, I should not comment 
on it at this time. However, I want to assure the Committee that this 
important investigation is being aggressively pursued, and we plan to 
report on this matter as soon as possible.
B. Organization of the U.S. Attorney Removal Report
    The report we issued on September 29 is a detailed description of 
our investigation into the removal of nine U.S. Attorneys in 2006. The 
358-page report contains 13 chapters. Chapter One provides an 
introduction and the scope and methodology of our investigation. 
Chapter Two provides background on the selection and evaluation of U.S. 
Attorneys, and background on the senior Department officials whose 
conduct was at issue in this investigation.
    Chapter Three contains a lengthy chronology of the removal process 
and the aftermath of the removals. It discusses the genesis of the plan 
to remove the U.S. Attorneys, how the U.S. Attorneys were selected for 
removal, the evolution of Sampson's lists recommending which U.S. 
Attorneys should be removed, the approval and implementation of the 
final removal plan, and the aftermath of the removals, including 
statements by Department officials to Congress and the public about the 
reasons for the removals.
    Chapters Four through Twelve provide detailed descriptions of the 
removal of each of the nine U.S. Attorneys in 2006, the reasons the 
Department offered for their removals, and our analysis and conclusions 
regarding why each U.S. Attorney was removed.
    Chapter Thirteen provides our overall conclusions, as well as our 
assessment of the conduct of the senior Department officials involved 
with the removals.
    In my testimony today, I will summarize the major findings from the 
report. The remainder of my statement is organized into three parts. 
The first part describes our findings on the removal process and the 
reasons for the removal of each of the U.S. Attorneys. The second part 
of my testimony analyzes the conduct of Department leaders. The final 
part discusses the basis for our recommendation--adopted by the 
Attorney General--that a prosecutor be appointed to assess the evidence 
and conduct additional investigation.
                 ii. the u.s. attorney removal process
    Our investigation concluded that the process the Department used to 
select the U.S. Attorneys for removal was fundamentally flawed, and 
that Attorney General Gonzales delegated the entire project to Sampson 
with little direction or supervision. We found that Gonzales eventually 
approved the removal of a group of U.S. Attorneys without inquiring 
about the process Sampson used to select them for removal, or why each 
name was on the removal list. Instead, Gonzales told us he ``assumed'' 
that Sampson engaged in an evaluation process, that the resulting 
recommendations were based on performance, and that the recommendations 
reflected the consensus of senior managers in the Department. Each of 
those assumptions was faulty.
    Gonzales also said he had little recollection of being briefed 
about Sampson's review process as it progressed. He claimed to us and 
to Congress an extraordinary lack of recollection about the entire 
removal process. In his most remarkable claim, he testified that he did 
not remember the meeting in his conference room on November 27, 2006, 
when the plan was finalized and he approved the removals of the U.S. 
Attorneys, even though this important meeting occurred only a few 
months prior to his congressional testimony on the removals.
    This was not a minor personnel matter that should have been hard to 
remember. Rather, it related to an unprecedented removal of a group of 
high-level Presidential appointees, which Sampson and others recognized 
would result in significant controversy. Nonetheless, Gonzales conceded 
that he exercised virtually no oversight of the project, and his claim 
to have very little recollection of his role in the process is 
extraordinary and difficult to accept.
    We found that Deputy Attorney General McNulty had little 
involvement in or oversight of the removal process, despite his role as 
the immediate supervisor of U.S. Attorneys. McNulty was not even made 
aware of the removal plan until the fall of 2006. When McNulty learned 
about the plan, he thought it was a bad idea. However, he deferred to 
Sampson and did not raise his concerns with regard to the plan itself 
or, except in a couple of cases, the evaluation of specific U.S. 
Attorneys to be removed. Rather, he distanced himself from the project, 
both while it was ongoing and after it was implemented.
    Moreover, we found that there was virtually no communication 
between Attorney General Gonzales and Deputy Attorney General McNulty 
about this important matter. Even when McNulty learned about the plan 
in the fall of 2006 (more than a year after Gonzales and Sampson 
initiated the removal process), he did not discuss any of his concerns 
with Sampson or Gonzales.
    We also found no evidence that Gonzales, McNulty, or anyone else in 
the Department carefully evaluated the basis for each U.S. Attorney's 
removal or attempted to ensure that there were no improper political 
reasons for the removals. Neither Sampson nor anyone else involved in 
the removal process reviewed the performance evaluations of U.S. 
Attorneys' Offices conducted by the Executive Office for U.S. 
Attorneys, except in the case of one U.S. Attorney, Kevin Ryan.
    Moreover, as discussed in detail in the chapters on the individual 
U.S. Attorneys, we found conflicting testimony about the reasons most 
of the U.S. Attorneys were recommended for removal. In some cases, 
neither Sampson nor any other Department official acknowledged 
recommending that the U.S. Attorney be placed on the removal list. In 
other cases, the Department's senior leaders did not even know why 
Sampson placed the U.S. Attorney on the list.
    The most serious allegations that arose in the aftermath of the 
removals were that several of the U.S. Attorneys were forced to resign 
based on improper political considerations. Our investigation found 
substantial evidence that partisan political considerations did play a 
part in the removal of several of the U.S. Attorneys. The most 
troubling example was the removal of David Iglesias, the U.S. Attorney 
for New Mexico. As we describe in detail in the report, we concluded 
that complaints from New Mexico Republican politicians and party 
activists to the White House and the Department about Iglesias's 
handling of voter fraud and public corruption cases led to his removal.
    Specifically, we found that New Mexico Senator Pete Domenici and 
other New Mexico Republican Party officials and activists complained to 
Iglesias, the Department, and the White House about Iglesias's alleged 
failure to initiate voter fraud prosecutions and his alleged failure to 
aggressively prosecute public corruption cases prior to the November 
2006 elections. Yet, the Department never objectively assessed these 
complaints. Rather, based upon these complaints and the resulting 
``loss of confidence'' in Iglesias, his name was placed on the removal 
list and in December 2006 he was told to resign along with six other 
U.S. Attorneys.
    With regard to several other removed U.S. Attorneys, we found that 
Department officials made misleading statements to Congress and the 
public by asserting that their removals were based on ``performance.'' 
In fact, Sampson acknowledged that he considered whether particular 
U.S. Attorneys identified for removal had political support. Sampson 
stated that a U.S. Attorney was considered for removal not if the U.S. 
Attorney was considered ``mediocre,'' but if the U.S. Attorney was 
perceived as both mediocre and lacking political support. Conversely, 
Sampson acknowledged deleting from his removal list the names of 
several U.S. Attorneys who he considered ``mediocre'' because he 
believed they had the political support of their home-state Senators 
and he did not think the Administration would want to risk a fight with 
the Senators over their removal.
    While U.S. Attorneys are Presidential appointees who may be 
dismissed for any lawful reason or for no reason, they cannot be 
dismissed for an illegal or improper reason. U.S. Attorneys should make 
their prosecutive decisions based on the Department's priorities and 
the law and the facts of each case, not on a fear of being removed if 
they lose political support. If a U.S. Attorney must maintain the 
confidence of home state political officials to avoid removal, 
regardless of the merits of the U.S. Attorney's prosecutorial 
decisions, respect for the Department of Justice's independence and 
integrity will be severely damaged and every U.S. Attorneys' 
prosecutorial decisions will be suspect. Moreover, the longstanding 
tradition of integrity and independent judgments by Department 
prosecutors will be undermined, and confidence that the Department of 
Justice decides who to prosecute based solely on the evidence and the 
law, without regard to political factors, will disappear.
    In sum, our report found that senior Department officials--
particularly Attorney General Gonzales and the Deputy Attorney 
McNulty--abdicated their responsibility to safeguard the integrity and 
independence of the Department by failing to ensure that the removal of 
U.S. Attorneys was not based on improper political considerations.
       iii. findings on reasons for removal of the u.s. attorneys
    Our report devotes a separate chapter to each of the nine U.S. 
Attorneys removed in 2006, describing in detail the reasons the 
Department offered for their removal and our analysis and conclusions 
regarding why each U.S. Attorney was removed.
    The first U.S. Attorney removed in 2006 was Todd Graves from the 
Western District of Missouri. The evidence indicates that, contrary to 
the Department's stated reasons, the primary reason for Graves's 
removal was complaints from the staff of Missouri Senator Christopher 
S. ``Kit'' Bond. Bond's staff urged the White House Counsel's Office to 
remove Graves because he had declined to intervene in a conflict 
between Senator Bond's staff and the staff of Graves's brother, a 
Republican congressman from Missouri. However, no Department official 
involved in the process could explain why Graves was forced to resign, 
and no Department official accepted responsibility for the decision to 
remove Graves. Each senior Department official we interviewed claimed 
that others must have made the decision.
    We believe the manner in which the Department handled Graves's 
removal was inappropriate. Although U.S. Attorneys serve at the 
pleasure of the President and can be removed for no reason, the 
Department should ensure that otherwise effective U.S. Attorneys are 
not removed because of an improper reason. While U.S. Attorneys are 
often sponsored by their state Senators, when they take office they 
must make decisions without regard to partisan political ramifications. 
To allow members of Congress or their staff to obtain the removal of 
U.S. Attorneys for political reasons, as apparently occurred with 
Graves, severely undermines the independence and non-partisan tradition 
of the Department of Justice.
    In June 2006, Arkansas U.S. Attorney Bud Cummins was the second 
U.S. Attorney instructed to resign. Contrary to Gonzales's initial 
statement that the U.S. Attorneys were removed for performance reasons, 
the main reason Cummins was removed was to provide a U.S. Attorney 
position for Tim Griffin, the former White House Deputy Director of 
Political Affairs.
    The other seven U.S. Attorneys were all told to resign on December 
7, 2006, and they were not given the reasons for their removal. The 
most controversial of these removals was Iglesias, the U.S. Attorney 
for New Mexico. As discussed previously, we were unable to uncover all 
the facts pertaining to his removal because of the refusal by key 
witnesses to be interviewed, including Rove, Miers, Goodling, Domenici, 
and Domenici's Chief of Staff. However, the evidence we uncovered 
showed that Iglesias was removed because of complaints to the 
Department and the White House by Senator Domenici and other New Mexico 
Republican political officials and party activists about Iglesias's 
handling of voter fraud and public corruption cases in New Mexico.
    We concluded that the other reasons proffered by the Department 
after Iglesias's removal--that allegedly he was an ``absentee 
landlord,'' that allegedly he delegated too much authority to his First 
Assistant, and that allegedly he was an underperformer--were 
disingenuous after-the-fact rationalizations that did not actually 
contribute to his removal.
    We also found no evidence that anyone in the Department examined 
any of the complaints about Iglesias's prosecutive decisions through 
any careful or objective analysis. Moreover, no one in the Department 
even asked Iglesias about these complaints, or why he had handled the 
cases the way he did.
    Rather, because of complaints by political officials who had a 
political interest in the outcome of voter fraud and public corruption 
cases, the Department removed Iglesias, an individual who had 
previously been viewed as a strong U.S. attorney. We believe that the 
actions by senior Department officials with regard to the removal of 
Iglesias--particularly Gonzales, McNulty, and Sampson--were a troubling 
dereliction of their responsibility to protect the integrity and 
independence of prosecutorial decisions by the Department.
    With regard to Nevada U.S. Attorney Daniel Bogden, we found that he 
first appeared on Sampson's removal list in September 2006, shortly 
after Sampson received complaints from the head of the Department's 
Obscenity Prosecution Task Force that Bogden would not assign a 
prosecutor to a Task Force obscenity case. However, neither Sampson nor 
any other senior Department official asked Bogden for his response to 
this complaint. Moreover, none of the senior Department officials we 
interviewed said they recommended that Bogden be removed, and Gonzales 
stated that he did not know why Bogden was removed.
    We found no evidence, as some speculated, that Arizona U.S. 
Attorney Paul Charlton was removed because of his office's 
investigation of Arizona Congressman Rick Renzi. Rather, we found that 
the Department was unhappy with Charlton's unilateral implementation of 
a policy in his district that required that interrogations be tape 
recorded. However, the most significant factor in Charlton's removal 
was his actions in a death penalty case in his district. Charlton 
advocated against the Department's decision to seek the death penalty 
in a homicide case, and Department leaders were irritated when Charlton 
sought a meeting with the Attorney General to urge him to reconsider 
his decision. We believe an issue of this magnitude warrants full and 
vigorous examination and debate within the Department, and that 
Charlton's request to speak directly to the Attorney General about this 
matter was neither insubordinate nor inappropriate.
    We had difficulty determining the real reason for the removal of 
John McKay, the U.S. Attorney for the Western District of Washington. 
While there is some evidence that McKay was placed on Sampson's initial 
removal list because of complaints from Washington State Republicans 
about his handling of voter fraud investigations, based on the 
available evidence we believe the main reason McKay's name was placed 
on the removal list was his clash with Deputy Attorney General McNulty 
over an information-sharing program that McKay advocated. However, the 
Department's varying explanations for why McKay was removed severely 
undermined its credibility when it tried to explain its actions.
    McKay's inclusion on the removal lists also underscores the 
fundamental problem with the entire removal process: the Department's 
failure to use consistent or transparent standards to measure U.S. 
Attorney performance and to determine whether a U.S. Attorney should be 
recommended for replacement. Instead, Sampson talked to a few people 
about who they thought were strong or weak U.S. Attorneys, and he used 
their impressions and comments about various U.S. Attorneys, without 
any attempt to corroborate the comments, seek alternative views, 
systematically evaluate the U.S. Attorneys' performance, or even allow 
the U.S. Attorneys to respond to any concerns about their actions. The 
ad hoc nature of Sampson's lists of attorneys to be removed 
demonstrated the fundamentally flawed and subjective process he used to 
create these lists.
    We found no evidence to support speculation that Carol Lam, the 
U.S. Attorney for the Southern District of California, was removed in 
retaliation for her prosecution of certain public corruption cases. 
Rather, we found that she was placed on the removal list because of the 
Department's concerns about the low number of gun and immigration 
prosecutions undertaken by her office. However, we also found that the 
Department removed her without implementing a plan outlined by Sampson, 
at the direction of the Attorney General, to address with Lam the 
Department's concerns about her prosecutorial priorities.
    We recognize it is the President's and the Department's prerogative 
to remove a U.S. Attorney who they believe is not adhering to their 
priorities or not adequately prosecuting the types of cases that the 
President and the Department decide to emphasize. This is true for any 
U.S. Attorney, even one like Lam who was described as ``outstanding,'' 
``tough,'' and ``honest,'' and whose office evaluation stated that she 
was ``an effective manager . . . respected by the judiciary, law 
enforcement agencies, and the USAO staff.'' However, what we found 
troubling about Lam's case was that the Department removed her without 
ever seriously examining her explanations or even discussing with her, 
as the proposed plan had suggested, that she needed to improve her 
office's statistics in gun and immigration cases or face removal.
    Finally, we concluded that the Department had reasonable concerns 
about the performance of U.S. Attorneys Margaret Chiara from the 
Western District of Michigan and Kevin Ryan from the Northern District 
of California and the management of their offices, and that they were 
removed for those reasons.
           iv. findings on the conduct of department leaders
    The final chapter in our report analyzes the conduct of senior 
Department officials in the removal of the U.S. Attorneys and its 
aftermath.
A. Attorney General Gonzales
    We concluded that Gonzales bears primary responsibility for the 
flawed U.S. Attorney removal process and the resulting turmoil that it 
created. This was not a simple personnel matter that should have been 
delegated to subordinate officials. Rather, it was an unprecedented 
removal of a group of high-level Department officials that was certain 
to raise concerns if not handled properly. Such an undertaking 
warranted close supervision by the Attorney General, as well as the 
Deputy Attorney General. We found that Gonzales was remarkably 
unengaged in the process, did not provide adequate supervision, and did 
not ensure that Deputy Attorney General McNulty also provided necessary 
oversight. Moreover, Gonzales failed to take action even in the case of 
Iglesias when he had notice that partisan politics might be involved in 
the demand for Iglesias's removal. We believe that Attorney General 
Gonzales abdicated his responsibility to safeguard the integrity and 
independence of the Department by failing to ensure that the removal of 
the U.S. Attorneys was not based on improper political considerations.
    Gonzales also made a series of statements after the removals that 
we concluded were inaccurate and misleading, including his remarks at a 
March 13, 2007, press conference at which he said that he ``was not 
involved in seeing any memos, was not involved in any discussions about 
what was going on'' and ``I never saw documents. We never had a 
discussion about where things stood.'' In addition, Gonzales repeatedly 
claimed to us and to Congress an extraordinary lack of recollection 
about the entire removal process.
B. Deputy Attorney General McNulty
    We found that McNulty had little involvement in the removal process 
and was not even informed about the removal plan until the fall of 
2006. Although McNulty told us that he was surprised by the plan when 
he learned of it, he did not object to the plan and did not question 
the methodology used to identify U.S. Attorneys for removal. Instead, 
he deferred to the Attorney General's office. We believe that the 
Deputy Attorney General, the second in command of the Department of 
Justice and the immediate supervisor of the U.S. Attorneys, should have 
raised his objections forcefully about the removal plan and should not 
have been so deferential about such a significant personnel action 
involving U.S. Attorneys under his supervision. Instead, McNulty 
distanced himself from the removals, both before and after they 
occurred, and treated it as a ``personnel matter'' outside of his 
``bailiwick.'' As with Attorney General Gonzales, we believe that 
Deputy Attorney General McNulty abdicated his responsibility to 
safeguard the integrity and independence of the Department by failing 
to ensure that the removal of the U.S. Attorneys was not based on 
improper political considerations.
C. Kyle Sampson
    We found that Sampson, Gonzales's Chief of Staff, was the person 
most responsible for developing the removal plan, selecting the U.S. 
Attorneys to be removed, and implementing the plan. Yet, after the 
controversy over the removals erupted, Sampson attempted to downplay 
his role, describing himself as the ``aggregator'' of names for the 
removal list and denying responsibility for placing several of the U.S. 
Attorneys on the removal list.
    We believe that Sampson mishandled the removal process from start 
to finish. In addition, we found that he had inappropriately advocated 
bypassing the Senate confirmation process for replacing U.S. Attorneys 
by using the Attorney General's authority to appoint Interim U.S. 
Attorneys and ``run out the clock'' while appearing to act in good 
faith to submit names through the regular Senate confirmation process.
    We also found that Sampson made various misleading statements about 
the U.S. Attorneys' removals. We concluded that Sampson engaged in 
misconduct by making misleading statements and failing to disclose 
important information to the White House, members of Congress, 
congressional staff, and Department officials concerning the reasons 
for the removals of the U.S. Attorneys and the extent of White House 
involvement in the removal process.
D. Monica Goodling
    Goodling's refusal to be interviewed by us also created gaps in our 
investigation of the reasons for the removal of certain U.S. Attorneys. 
As the Department's White House Liaison, Goodling had significant 
contact with White House officials about Department personnel matters, 
and the evidence shows that Goodling was involved to some extent in the 
selection of the U.S. Attorneys for removal.
    Based on our investigation, we found that Goodling, like Sampson, 
failed to fully disclose to Department officials what she knew about 
the White House's involvement in the removals and that her failure to 
do so contributed to Department officials making inaccurate statements 
to Congress. We concluded that Goodling engaged in misconduct by 
failing to correct Department officials who were providing what she 
knew to be misleading information to Congress and the public concerning 
the extent and timing of White House involvement in the U.S. Attorney 
removal process.
                    v. recommendation and conclusion
    Our report recommended that the Attorney General appoint a counsel 
to assess the facts we have uncovered, work with us to conduct further 
investigation, and ultimately determine whether the evidence 
demonstrates that any criminal offense was committed with regard to the 
removal of Iglesias or any other U.S. Attorney, or the testimony of any 
witness related to the U.S. Attorney removals.
    We made this recommendation for several related reasons. First, we 
believe it is important to ascertain the full facts relating to why the 
U.S. Attorneys were removed. As we describe in the report, we were 
unable to fully develop all of the facts regarding the removal of 
Iglesias and several other U.S. Attorneys because of the refusal by 
certain key witnesses to be interviewed by us (including Rove, Miers, 
Goodling, Domenici, and Domenici's Chief of Staff), as well as by the 
White House's decision not to provide us with internal White House 
documents related to the removals.
    Second, we believe such a counsel should consider whether 
Department officials made false statements to Congress or to us about 
the reasons for the removal of Iglesias or other U.S. Attorneys.
    Third, we believe a full investigation is necessary to determine 
whether other federal criminal statutes were violated with regard to 
the removal of Iglesias or any other U.S. Attorney, including the 
obstruction of justice or wire fraud statutes.
    It is important to note that our report did not conclude that the 
evidence we have uncovered thus far establishes that a violation of any 
criminal statute has occurred. However, we believe that the evidence 
collected in this investigation is not complete and that serious 
allegations have not been fully investigated or resolved. We believe 
that this matter should be fully investigated, the facts and 
conclusions fully developed, and final decisions made based on all the 
evidence.
    As noted above, in response to our recommendation Attorney General 
Mukasey appointed a career prosecutor, the Acting U.S. Attorney for 
Connecticut, to pursue this investigation. We expect the Acting U.S. 
Attorney to move aggressively and expeditiously to obtain additional 
evidence and to make a determination as to whether any criminal offense 
was committed with regard to the removals or their aftermath.
    The Department's removal of the U.S. Attorneys and the controversy 
it created severely damaged the credibility of the Department and 
raised doubts about the integrity of Department prosecutive decisions. 
We believe that our investigation, and final resolution of the issues 
raised in this report, can help restore confidence in the Department by 
fully investigating and describing the serious failures in the process 
used to remove the U.S. Attorneys and by providing lessons for the 
Department in how to avoid such failures in the future.
    This concludes my statement, and I would be pleased to answer any 
questions.

    Mr. Conyers. Chris Cannon, the Ranking Member, is 
recognized.
    Mr. Cannon. Thank you, Mr. Chairman. This has been a long 
process. I wish it had come out more cleanly either way, but it 
really hasn't. Mr. Fine, you have made a particular point of 
David Iglesias' firing. I would like to pursue that a little 
bit.
    Are you familiar with the characterization by Mr. Margolis 
of the way David Iglesias reported his contact with Mr. 
Domenici?
    Mr. Fine. Yes, I am. He was concerned about that and upset 
that he did not report contact to the Department as he was 
required to do by the U.S. Attorneys' Manual. In fact, we point 
out in our report that that was improper and he should have, 
when he got that contact from Senator Domenici, reported it to 
the Department and it was misconduct for him not to.
    Mr. Cannon. David Margolis is the senior career employee at 
the Department; isn't that correct?
    Mr. Fine. Yes.
    Mr. Cannon. He actually used the word ``unforgivably.'' He 
said that Iglesias ``unforgivably'' violated the Department 
policy in that instance. He actually said to this Committee--we 
had several people testify about how they contacted their 
superiors when contacted by Members of Congress, and they all 
pointed out that they had sent a letter or made a phone call 
immediately after the contact.
    I asked Mr. Iglesias if he had contacted the Department 
about the contact with Mr. Domenici. He acknowledged that he 
was intimidated. He waited some period of time but that he did 
in fact contact the Department of Justice. I was a little 
surprised. I asked him how he contacted the Department. He said 
through his press conference. In other words, instead of using 
telephone or e-mail or flying out saying, ``Look, I am 
concerned, I have got this horrible message,'' he acknowledged 
that he had been cowed by what he said was the contact. I think 
that has been disputed. The content of what the contact was 
clearly disputed by Mr. Domenici who I have known for years and 
who I don't believe would say the kinds of things that Mr. 
Iglesias said he said. But that is he said/she said. The 
unforgivable thing was to say that he used a press conference 
to communicate to his superiors in main Justice. Don't you 
think that is like a little ridiculous?
    Mr. Fine. It was wrong. It was misconduct. We pointed that 
out. He should have contacted the Department when he got that 
call, as he was required to do by the U.S. Attorneys' Manual. 
And we think that that was not proper.
    Mr. Cannon. Do you also think it as ridiculous as I think 
it that he claimed to have done that, claimed to have complied 
with the rules, by talking at a press conference?
    Mr. Fine. Talking at a press conference does not comply 
with the rules. He should have contacted the Department at the 
time that it occurred.
    Mr. Cannon. This all suggests that in the mind of Mr. 
Iglesias at least--now there are many other people involved in 
this whole process, and I have great respect for many of them. 
But in this particular case, doesn't that raise the specter of 
the usefulness of replacing the occasional U.S. attorney?
    Mr. Fine. I am not sure that that is the conclusion I would 
draw because Mr. Iglesias did not properly contact the 
Department. And we looked into Mr. Iglesias' performance. This 
was something that was not correct and he should have done 
that. But that was not a reason why he was removed, and that 
had nothing to do with the reason for his removal. So I am not 
sure that that could have an impact.
    Mr. Cannon. Well I think that the reason he was removed was 
that he was not competent. There were many reports and many 
issues that related to his lack of prosecution of cases, not 
just those that related to the supposed phone calls from 
Members of Congress from New Mexico.
    So that the point here--I am not making the point that he 
was removed because he made the improper contact with the 
Justice Department. I am suggesting there was something missing 
in Mr. Iglesias that was reflected in his work.
    Mr. Fine. We didn't find that that issue rose to the 
Department and that was the reason the Department removed him. 
The Department removed him, we determined, because of the loss 
of confidence that New Mexico political activists and officials 
had in him, and they relayed that to the Department, to the 
White House, to others. And as a result, the Department removed 
him. What our concern was, was the Department didn't look into 
that, didn't ask him about it, didn't assess the actions that 
he had taken in those cases.
    Mr. Cannon. Pardon me, Mr. Fine.
    Mr. Fine. I am sorry.
    Mr. Cannon. It was a little more complicated than that. Mr. 
Iglesias actually said, Quite frankly, I wanted to run for 
office after my term as U.S. attorney and I knew that if I 
reported them, there would be no chance I would get any 
support. I mean this is not a guy who just uses the press 
instead of a telephone. This is a guy who is himself posturing 
before he got squeezed and posturing after.
    Mr. Fine. Mr. Iglesias should have made that contact, there 
is no question. But that did not impact the removal. And from 
our determination, the Department didn't even look into the 
allegations about his handling of the voter fraud cases or the 
public corruption case. They simply accepted that because there 
were these complaints, there was a loss of confidence and then 
he was removed.
    Mr. Cannon. But Mr. Fine, many people at main Justice knew 
Mr. Iglesias. Could they not just have said among themselves, 
``This guy is weak. He is weak-minded. He is not a competent 
U.S. attorney. We think we can do better''?
    Mr. Fine. That is not what they said though. That is not 
what we found that they said. We did not find that as the 
reason that was proffered by the Department for his removal. We 
didn't find evidence that that was on their minds, and it 
just--we didn't see the evidence for that.
    Mr. Cannon. Let's shift gears to partisan and political and 
what is appropriate in that context. Clearly the U.S. attorneys 
are political. They are appointed by the President. They are 
confirmed by the Senate. And we have had from the very 
beginning, from the second Presidency in the United States, we 
have had a debate about what that means. Can a President remove 
an official that has been confirmed by the Senate? We have 
agreed entirely, consistently, and overwhelmingly ever since 
John Adams that it was appropriate for a President to replace 
political appointees.
    As we go after this issue here today, are we not--and I 
realize we don't have lights on, Mr. Chairman. So let me just 
lay this question out and I think perhaps we can come back to 
it. Is it not appropriate for the President to fire a U.S. 
attorney for any reason he may deem or the Attorney General may 
deem sufficient?
    Mr. Fine. The President can fire a U.S. attorney for any 
reason, or no reason, but can't do it for an illegal reason. 
The concern that we have about this--and as we state in the 
report--is that, yes, politics does affect who is appointed as 
U.S. attorney. They are considered when the home State senators 
and officials recommend, who gets appointed. But once you 
become the U.S. attorney, you leave your politics and your 
political considerations at the door. And if it were that you 
have to maintain political support to keep your job, every 
prosecutorial decision of the Department of Justice would be 
suspect. And people would believe that they are making these 
decisions in order to maintain political support, and if they 
don't do it this way, they will be removed.
    It was unprecedented in the Department's history to have 
this group of U.S. attorneys removed. And the reason that they 
were told--or that was said that they were removed--was for 
under performing. We didn't find that to be the case for many 
of them. And therefore, we think that this is--it undermines 
the independence and integrity of the Department of Justice if 
you have to maintain political support as a way to keep your 
job.
    Mr. Cannon. Let me say first of all, I think what you are 
saying is vitally important and I agree with what you have 
said. And it is without question improper for a Congressman or 
a Senator to call a U.S. attorney and intervene in the 
prosecution. And that is the kind of thing which I think you 
are really focusing on.
    On the other hand, while bungled, what we have here is an 
attempt to upgrade with all the cycle of discussions that we 
have had about that, and reasons which may not have proven out. 
I just don't--I think that it is very important that we be 
clear about where we make that demarcation.
    A Congressman should not call and interfere in a case. But 
the President has the authority to say, I think somebody can do 
this job better, can fulfill my priorities better. And I think 
in many of the cases where U.S. attorneys were fired, that 
became clearly the case in the testimony we had here.
    I am going to yield back but I think that----
    Mr. Fine. Can I respond to that?
    Mr. Cannon. Respond.
    Mr. Fine. I understand your point. I don't think it was the 
case with many U.S. attorneys. And I also think that it is the 
Department's responsibility, when they get those calls or when 
there is that concern, to actually look into it, to actually 
investigate it, to actually determine whether this U.S. 
attorney is making the appropriate prosecutorial decisions 
based on the Department's priorities, the facts, and the law of 
each case. And if there is a problem, then they should inquire 
about that and take action, but not simply to accept these 
complaints and that is the basis for the removal of a U.S. 
attorney. It undermines the independence and integrity of the 
Department, I believe.
    Mr. Conyers. Thank you very much. Chairwoman Linda Sanchez.
    Ms. Sanchez. Thank you, Mr. Chairman. And I want to thank 
you, Mr. Fine, for your testimony today and for the very 
thorough report.
    Is it fair to say that based on the information contained 
in that report you couldn't completely investigate all of the 
issues because certain witnesses would not make themselves 
available to you?
    Mr. Fine. It is true that there were gaps in our 
investigation. We uncovered, I believe, most of the facts. We 
went a long, long way to uncovering then, but there were some 
gaps based on the refusal of certain witnesses to talk to us.
    Ms. Sanchez. And those witnesses that refused to cooperate 
with your investigation were Karl Rove, Harriet Miers, and 
Monica Goodling; is that correct?
    Mr. Fine. Among others.
    Ms. Sanchez. Okay. Obviously AG Mukasey has appointed Ms. 
Dannehy, and I am not here to question her qualifications. But 
I am a little concerned about the issue that she has not been 
appointed a special counsel. She has been appointed as the 
acting U.S. attorney for the District of Columbia. And I find 
that interesting, given that currently this Committee is 
challenging the Administration's privilege and immunity claims 
in Federal court; and the Justice Department is defending those 
claims and asserting that White House documents should not be 
provided outside the White House, and that Harriet Miers and 
Karl Rove cannot be compelled to provide on-the-record 
statements.
    My question to you is, how can a Justice Department 
prosecutor, under the supervision of the Attorney General, 
attack such claims to get access to White House information at 
the same time that the Department is in court defending the 
claims of immunity and privilege? Isn't that a conflict of 
interest?
    Mr. Fine. Not necessarily. I think what the Department 
would say--and you have to talk to the Department about this--
but those are different--separate issues, whether documents 
should be provided in connection with the Department of Justice 
criminal investigation, whether documents should be provided in 
connection with congressional inquiry. And there are different 
privileges and case law that applies to it.
    So it is not necessarily a conflict of interest to seek it 
in one, and have a different position in another. But that is 
for the Department to let you know its reasoning.
    Ms. Sanchez. I just want to bring your attention to the 
fact that under DOJ special counsel regulations, the Attorney 
General should not appoint a special counsel who is not 
within--pardon me--should appoint a special counsel who is not 
within DOJ to pursue a matter when a criminal investigation is 
warranted, when DOJ pursuing the matter would present a 
conflict of interest, and what it would be in the public 
interest. In your opinion, are those criteria met in this 
particular case?
    Mr. Fine. It is a difficult question and a close question. 
There are pros and cons of appointing a special counsel under 
28 CFR, part 600, the Special Counsel Regulations of the 
Department. It would have to be someone from outside the 
Department. On the other hand, the report would still go to the 
Department and remain confidential. So the concerns that you 
had stated in your opening statement would also be in effect 
there.
    The issue is whether the Department is appointing--
specially appointing Nora Dannehy as a counsel to look into 
this can get to the bottom of this, can aggressively, 
thoroughly, and expeditiously investigate this. I think that is 
possible. We will have to see whether she does that. But there 
are pros and cons of each way, and the Department has taken the 
position to appoint someone especially for this to move forward 
with our investigation, and we look forward to seeing what she 
does.
    Ms. Sanchez. I understand your answer, and I respect it. I 
just am a little bit troubled by the fact that in your 
investigation, you were seeking documents and testimony that 
the White House was unwilling to provide, certain witnesses 
were unwilling to provide. We have tried in our oversight role 
as a Committee to receive those same documents and testimony 
from witnesses. And we are battling, in essence, the Attorney 
General who refuses to enforce our contempt request. And at the 
same time he is the person appointing the person who will be in 
charge of doing the full investigation and trying to get to the 
bottom of this.
    Doesn't that inherently seem odd to you? Or don't you think 
that the public might lose confidence or--I think better put, 
not regain their confidence in the Department of Justice if 
that is the case?
    Mr. Fine. It is not necessarily odd. It is not necessarily 
in conflict. There are different forums and different 
considerations in obtaining the documents in the different ways 
that are being pursued. I think it is important that this go 
forward and go forward aggressively and expeditiously. And the 
ultimate judgment will be and should be how this happens and 
how she and the Department pursues this--whether they pursue it 
aggressively and seeks all the information that is necessary to 
fully explain what happened here.
    Ms. Sanchez. Let me ask you this, Mr. Fine. Do you think 
that the findings in your report should preclude Congress from 
continuing its investigation and oversight into this matter? Or 
do you think that Congress has an appropriate role in 
continuing their investigation?
    Mr. Fine. Well, I am always cognizant of Congress' 
appropriate role, and I think Congress ought to make that 
determination. I am not saying they should or shouldn't. I 
don't think it necessarily obviates the need for it, but that 
is your decision to make.
    Ms. Sanchez. Thank you. And just two last questions. As 
this Administration leaves office, one of the concerns that I 
have is the potential for documents to disappear and witness 
intimidation to occur. And your report establishes ample 
evidence of this type of conduct having occurred. Department 
officials still don't seem to understand some of the gravity of 
what has happened here. And even as recently as a week ago 
Monday, senior DOJ officials, specifically David Margolis, who 
has joked about the U.S. attorney firings as the quote-unquote 
``recent unpleasantness'' and I would allege it is a little bit 
more than unpleasantness--was continuing to intimidate career 
employees by warning them that they should not communicate with 
the press if they are concerned about wrongdoing.
    I want to know what steps will you take as IG to ensure 
that all DOJ employees are aware of their rights as 
whistleblowers, including their rights to communicate with 
Congress, if they learn of documents being destroyed or other 
interference with the special prosecutor's investigation.
    Mr. Fine. We have made clear that we are available for any 
complaints about that; that they have their rights. We do get 
complaints of whistleblowers. We take it very seriously. If 
there is such an allegation, we have a hotline on our Web site. 
We have a button on our Web site. People know who we are. We 
are very public about our role. And we take those 
responsibilities seriously.
    Ms. Sanchez. So you have already communicated that 
information to both political appointees and career officials?
    Mr. Fine. We haven't given a separate document now. But we 
are regularly communicating our role in detecting and deterring 
waste, fraud and abuse, and receiving any complaints of 
misconduct and taking them seriously.
    Ms. Sanchez. I would make a suggestion that it might 
behoove you to at least communicate to all employees within the 
Department that they have those rights as whistleblowers and 
what their rights are. I think that that would be most helpful.
    Finally, the last question that I have for you is, what 
would be the effect on the pending investigation if President 
Bush were to grant a pardon to Karl Rove, Harriet Miers, or 
others who are being investigated in this matter?
    Mr. Fine. First of all, I have heard no indication or 
evidence of that. If he granted a pardon, it would prevent any 
criminal prosecution from going forward. But if one was 
warranted, a pardon would have that impact.
    Ms. Sanchez. If there were--if say they were called before 
the Committee to provide testimony after the Bush 
administration leaves office and they had been pardoned for any 
activity but refused to appear, would that preclude us finding 
them in contempt and ordering them to appear?
    Mr. Fine. I haven't really analyzed that hypothetical 
scenario. So I am not sure what the answer to that one is. I 
would doubt it, but I am not in a position to make a legal 
judgment on that particular set of facts.
    Ms. Sanchez. I will submit some additional written 
questions, and I thank the Chair and yield back my time.
    Mr. Conyers. Thank you. The Chair is pleased to recognize 
the gentleman from California, an important Member on the 
Constitution Subcommittee, Darrell Issa.
    Mr. Issa. Thank you, Mr. Chairman. I think bringing closure 
with this report is extremely important.
    And Mr. Fine, I commend you for a significant and 
sufficient report. When I read it, I have to tell you, I was 
only intimately familiar with one of the U.S. attorneys. And so 
today if you don't mind, I am going to primarily focus on that.
    But before I do, I would like to follow up on Congresswoman 
Sanchez's line of questioning very, very quickly.
    As an independent investigator who looks for the ultimate 
right or wrongdoing of the actions of a bureaucracy, can you 
answer just a few questions related--if Karl Rove or anyone 
else were granted a pardon, by definition, wouldn't that 
preclude any claim or resistance of--other than, you know, the 
White House asserting things which are undeniable in their 
authority--but wouldn't that essentially cause them to have to 
tell us truthfully, without using the fifth as a claim, 
everything they did or knew? Wouldn't it in a sense--although 
they couldn't be prosecuted for it--by definition release them 
to have to answer fully and have no personal ability to escape 
answering the questions?
    Mr. Fine. Off the cuff, I would think so. If the pardon 
covered the full scope of their criminal exposure, then it 
would obviate any fifth amendment privilege that they would 
have.
    Mr. Issa. Okay. I wanted to establish that because some 
people want to make it seem like a pardon is inherently wrong; 
when, in fact, if all we are interested in is the nonpartisan 
truth of what occurred, then the seeking of the truth is often 
a plus by a pardon, not a negative. Or a limited immunity, as 
often happens in your investigations.
    You grant immunity as part of your investigations--the U.S. 
attorney's office grants immunity as part of their 
investigations, don't they?
    Mr. Fine. We can, in conjunction with U.S. attorney offices 
or prosecutors that we work with, grant use immunity for 
witnesses. But we only do it in certain circumstances.
    Mr. Issa. Sure. I understand that. I would hope that on 
both sides of the aisle if what we are seeking is the truth, we 
won't fear any tool that ultimately enables us to get answers 
to questions that we might otherwise not get.
    Moving to Carol Lam, you know there is an old expression 
you know--at least in the Boy Scouts. And that is, if you light 
a fire, you have to take credit for lighting the fire. And you 
also have to put out the fire, tend the fire, and be 
responsible for it.
    Well, I am very, very, very proud that I saw Carol Lam as 
someone who is not working within the guidance of the U.S. 
attorneys guidance from the Administration, was inconsistent in 
her enforcement with the President's stated public goal of 
enforcing the border, and ultimately leading to a successful 
guest worker program and the like.
    So let's go through Carol Lam. Your report says that there 
was no evidence that Carol Lam was removed because of the 
investigation of former Congressman Duke Cunningham or a CIA 
official, Dusty Foggo, right?
    Mr. Fine. Correct.
    Mr. Issa. Okay. And both of those people are currently 
convicted successfully, right?
    Mr. Fine. Correct.
    Mr. Issa. And the investigation or the complaint about 
Carol Lam as to her enforcement on both immigration and 
firearms began before anyone here knew about Duke Cunningham; 
is that correct?
    Mr. Fine. I don't know when people here knew about Duke 
Cunningham. They initially appeared in connection with an 
evaluation at an early stage, I would say.
    Mr. Issa. Mr. Chairman, I ask unanimous consent to be able 
to put some of the letters I wrote concerning Carol Lam into 
the record at this time.
    Mr. Conyers. Without objection, so ordered.
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    Mr. Issa. Thank you, Mr. Chairman.
    And after Carol Lam's removal did you find any indication 
from, I guess, yesterday or the day before when former CIA 
official Foggo was convicted, that there was any relief in the 
prosecution related to wrongdoing?
    Mr. Fine. We didn't look into that specifically. We saw no 
evidence that the prosecution wasn't handled in a normal and 
appropriate way.
    Mr. Issa. Okay. And just for the record, I think Dusty is 
right now packing up his goods and reporting to prison, having 
pled guilty.
    The underlying claim for dismissal in one of your other 
paragraphs it says: Rather, the evidence in our investigation 
demonstrated that Lam was removed because of the Department's 
concerns about her office's gun and immigration prosecution 
statistics.
    And isn't it true that those statistics, as compared to 
other border officials, were less? I mean, she simply 
underperformed or refused to bring as many people in. You don't 
bring them in the front end, you don't get them out the back 
end in prosecutions, right?
    Mr. Fine. Well, we did find the Department's concerns about 
her immigration and gun prosecutions is what led to her 
removal. The concern that we had is that she had a response to 
that. She had reasons why in her district they weren't at the 
same level, that she was bringing bigger cases, that there was 
enforcement of this on the local level. And the problem was, 
the Department never really seriously and objectively analyzed 
those concerns. And, in fact, they had outlined a plan to 
address it, a reasonable plan we thought to address it; that 
is, discuss it with her, come up with a plan to address these 
concerns, have a heart-to-heart talk with her. If she balks or 
if she doesn't do it, we should remove her.
    Mr. Issa. Isn't it true that plan never actually got to 
her?
    Mr. Fine. That was the problem. That plan never actually 
happened and the Attorney General and Kyle Sampson said okay to 
the Deputy Attorney General's Office, let's implement that 
plan. She responded to a request about, are these statistics 
accurate? Yes, they are accurate, but explain why they 
occurred. And the Deputy Attorney General's Office turned this 
over to an intern. The intern said, I don't have the expertise 
to evaluate this. And then nobody evaluated it. And then she 
was removed. So we----
    Mr. Issa. Okay. But let's go back again, because you 
mentioned the local control. I never wrote any letters about 
her enforcement of firearms. And firearms do have dual 
jurisdiction. But as to coyotes, human traffickers, bringing 
people over the border, that is an exclusive right of hers. 
There is no local remedy.
    Let's just focus for a moment on her refusal to prosecute 
human traffickers who were bringing over illegals, even 
publishing a document that became known to coyotes; that if you 
didn't basically shoot somebody, that you could come over and 
be caught month after month after month with a half a dozen 
illegals and you would be released. Now, you did find that, 
correct?
    Mr. Fine. We found that--there were concerns about her 
decisions. And then she would state that she prosecuted the 
most serious offenders with the longest sentences. And it took 
more resources to do that. Now, what we didn't do and it wasn't 
our goal to say who is right or who is wrong.
    Mr. Issa. Sure, I understand that.
    Mr. Fine. What our goal is, is to look at the process that 
they used, and they didn't really analyze that.
    Mr. Issa. Did you analyze the President's stated policy? So 
you didn't analyze whether or not there was a policy that she 
was flagrantly ignoring or disagreeing with?
    Mr. Fine. No. We did not do that. We did not make the 
underlying determination. We looked at the process that was 
used to address those concerns.
    Mr. Issa. Switching back to Congress. At that time Jim 
Sensenbrenner was Chairman of this Committee. Were you made 
aware that both Congressman Sensenbrenner and myself both went 
down and held hearings and had a face-to-face meeting with 
Carol Lam?
    Mr. Fine. Yes. I think it is in the report.
    Mr. Issa. I just wanted to make sure that it gets into this 
part of the record.
    So it is not going to surprise you that in that meeting, 
she told us about her early days as an assistant U.S. attorney 
and the fact that she thought these were pretty useless because 
she was forced to do these cases, actually personally have 
these coyotes come before her and get these de minimis 
sentences, as she viewed it.
    And even as we asked, well, if you do them multiple times 
you get stronger ultimate penalties, eventually you can get 
real penalties, she said, yeah, but that just takes too long 
and they usually get time served and it is 60 days the first 
few times and I have bigger fish to try.
    Does any of that surprise you based on your interview with 
her?
    Mr. Fine. Again, we did not look into the substance of the 
dispute that she was having with these issues. And the 
Department certainly has a right and an obligation to look into 
this and to assess this and to determine whether or not a U.S. 
attorney is adequately pursuing the Department's priorities.
    Mr. Issa. Mr. Fine----
    Mr. Fine. The important point.
    Mr. Issa [continuing]. As an IG, you look at two things. 
And I sit next door on Government Reform and Oversight. So 
nobody could respect not just your role, but the IGs in every 
part of the many bureaucracies of government. Ultimately when 
you have a political appointee who serves at the pleasure of--
and you fill in the blanks--but ultimately the President, is 
there any reason at all as an IG that they cannot be terminated 
simply for saying, I disagree with that policy, and I will not 
enforce it or don't believe I should or believe that my job 
says I should be able to ignore that polic?
    Is there any reason to believe that immediate termination 
is not appropriate based on that one statement by a political 
appointee who serves at the privilege--the pleasure of the 
President and who disagrees with stated policy and says they 
don't believe they should enforce it?
    Mr. Fine. I think if a political appointee is insubordinate 
and says I am not going to enforce the policy, unless there is 
an illegal reason that is being stated why she should do it, 
but if it is not an issue, it is simply I am not going to 
enforce a priority of the Department, then she can be 
terminated. Absolutely.
    Mr. Issa. Finally, if--as I will assert here while taking 
your testimony--in front of Jim Sensenbrenner and myself she 
said exactly that; that she felt that she was an independent 
entity confirmed by the Senate and, as such, did not have to 
look at the policies ultimately of the President except as 
advisory, and that she made those independent decisions of her 
priorities and that she would continue to do so, would you say 
that since she said it to two Members of Congress, including 
the Chairman of the Committee of jurisdiction, that 
congressional activity making the Administration aware of that 
and of this inconsistency--at least in our understanding--of 
her freedom of movement within policy, would you say that was 
correct for us to convey that back to the Administration? Not 
what gets done with it. But is it appropriate when we hold a 
field hearing on this problem at the border and she tells us 
that, is it appropriate for us to inform the Administration and 
ask them to take what they think is an appropriate response?
    Mr. Fine. I think that is appropriate. I think that is fine 
for Members of Congress to relay that to the Administration and 
the Department and the President, and that the Department has 
an obligation to look into it and to assess this, and to ask 
her, what did you say and why are you doing this? And what is 
the situation here? So I don't think there is anything wrong 
with bringing that information to the attention of Department 
of Justice.
    By the same token, the Department of Justice has an 
obligation to look into it and to assess it and to ask, in my 
view, ask her for her response to this. Did you actually say 
that and why? My problem with this is, that never happened at 
the Department of Justice level.
    Mr. Issa. I certainly would----
    Mr. Cannon. Would the gentleman yield?
    Mr. Issa. I would yield to the Ranking Member.
    Mr. Cannon. I think the gentleman knows, because we have 
talked about this--I have the greatest respect for U.S. 
Attorney Carol Lam. I think she was marvelous. She has gone on 
to do great things in her career. I don't think she has been 
hurt by this process. So this is, in my mind, not so much about 
her as it is about your expectations. And you have been talking 
about, you know, maybe on guns there is dual jurisdiction, and 
maybe there is some reason not to fire her there; but maybe 
there was reason to fire her because she didn't pursue 
immigration issues the way the Administration wanted to. Mr. 
Margolis indicated in his testimony that she was probably 
insubordinate.
    Those things are not important in my mind. What is 
important is you are holding the President to a standard that 
says that he needed to follow up with serious and objective 
review of her response to the shortcomings. So she is told, you 
are not doing these things. We are unhappy. She responds. And 
instead of being able to fire her, you expect to put on the 
President, or on the Administration, this standard.
    Where do you have imputed in the law a responsibility to 
review the performance of a political appointee on a serious 
and objective standard instead of just saying, we don't like 
what she is doing, we want to replace her?
    Mr. Fine. It is not illegal to do that. I will grant you 
that. But what the issue here is, if you are getting complaints 
about a U.S. attorney for a certain reason, we believe it is an 
appropriate practice and a better practice--and I believe the 
Department would even say this--that it makes sense to ask her 
about it, to assess this, not simply to accept as true 
something that is as common as a complaint with her.
    And as we talk about, the Department actually got this and 
put out a reasonable plan, in our view, that they thought 
should have been followed. And it wasn't followed. And I will 
also point out that Deputy Attorney General Comey, when he was 
Deputy Attorney General, did talk to her about this and they 
did have a discussion. And he discussed the reasons why. And 
she told him the reasons why. And he did not say, you are being 
insubordinate. They moved forward.
    Now, is there a legal obligation to ask a U.S. attorney for 
a response to a serious complaint that will lead to her 
dismissal? I don't think it is in the law. I certainly think it 
is appropriate management practice.
    Mr. Cannon. But I think that you have missed--you are 
talking not about asking her questions but about her response 
and explaining why she hasn't done things, and then the 
response by the Administration to that. Does the Administration 
have to implement--with a political appointee--the same kind of 
activity that you would expect in a private company or at a 
lower level of employment? In other words, the biggest problem 
I have with your report is that it presumes, it creates a 
standard for the ability to dismiss someone. Granted, you can't 
do it for improper reasons. But you are creating a standard 
that I think is out of whole cloth, it is not founded in law.
    Mr. Fine. We are not saying that this has to be done by 
law. We are saying that this is certainly a management practice 
that the Department of Justice should implement. And in fact 
the Department of Justice, even after this occurred, said they 
should have done it.
    Mr. Cannon. Before I yield back, let me just point out that 
there is good management practice and there is constraint on 
the political process in America. And I think that you are 
looking--you are overstepping the line by applying management 
practice to a political environment. And I yield.
    Mr. Issa. Reclaiming my time. I want to follow up on that 
just very briefly.
    Mr. Fine, at the beginning of the Clinton administration 
and now next the Bush II administration, isn't it true that 
basically virtually all U.S. attorneys were summarily 
dismissed.
    Mr. Fine. Yes----
    Mr. Issa. Okay. And isn't it true then that that doesn't 
follow any good management practice that you know of?
    Mr. Fine. I think that is a separate issue----
    Mr. Issa. No. No. Wait a second. I apologize but let's go 
back to management practice. You are making it a separate 
issue. If you are trying to change the direction of an 
organization, and you terminate everybody and for a period of 
time you have basically no U.S. attorneys, they are all acting, 
some subordinate that is elevated to acting, and you have to go 
through the process for several months to replace them, is that 
a good management practice as opposed to the pleasure of the 
President and a direction change that is political, not quote 
management?
    Mr. Fine. I think it is a fine management practice. It is 
not unprecedented. It happens all the time when an 
Administration changes for wholesale replacement of political 
appointees.
    Mr. Issa. So if in fact a group of U.S. attorneys, 1, 2, 
10, 12, cumulatively represent a group of people that for 
whatever reason by terminating them and replacing them with 
other people, would signal various changes in directions or 
emphasize certain policies, that would be equally reasonable if 
you are firing your own people as if you are firing the 
previous people because in both cases you are making a 
statement, potentially, with absolutely no reason whatsoever 
for the termination, simply wanting to make a statement because 
of what you are going to do going forward, isn't that true?
    Mr. Fine. In my view, the problem is the statement that 
these were underperforming U.S. attorneys----
    Mr. Issa. No, I understand that. I'm not asking about these 
specific ones. I'm saying does the President through his 
Administration have the right to pick half a dozen, 20, 30 of 
anything and choose to make a termination, not were they 
muddied in--I think all us on both sides of the aisle can agree 
that this was pretty muddied and muddled as to why you are 
terminating people, what makes them different. I'm not going to 
talk about the communications here. It clearly was not good. 
Isn't it true that just as when President Clinton fired all but 
one of Bush I's U.S. attorneys summarily and then had a period 
of time with nobody and then put his people in, that he was 
making a policy statement, and it is common, as you said.
    At any time in the middle of an Administration if you ask 
Secretary Rumsfeld to leave and replace him with Secretary 
Gates or anything you don't need a reason to terminate them. 
You only have to want to make a change for whatever your 
internal purposes are to make a statement. Isn't that true 
within the political--I don't want to confuse good management 
practices with the absolute right of this President and 
obviously the next President.
    Mr. Fine. There are two separate issues, one, can you do 
that? Yes, as long as there is not an illegal reason, and we 
talk about the issues related to that, whether----
    Mr. Issa. And you found no illegal issues?
    Mr. Fine. Well, we said our investigation is not complete 
and that the issues regarding David Iglesias need to be fully 
investigated and whether that was to interfere with a actual 
prosecution of a particular case, that is an issue. But as to 
your statement can you simply say I want 10 of them gone, you 
are out, without giving any reason without giving any notice, 
it is not illegal to do that.
    Mr. Issa. Thank you, Mr. Chairman. I think we have made the 
points that can be made once again, and I thank you for the 
leniency to make those points.
    Mr. Conyers. I would usually thank you for that.
    Mr. Issa. And you are very welcome, Mr. Chairman.
    Mr. Conyers. The Chair is pleased to recognize the Chair of 
the Crime Committee, the distinguished gentleman from Virginia, 
Bobby Scott.
    Mr. Scott. Thank you, Mr. Chairman. Mr. Fine, we have heard 
that the firings would be a function of who is doing what the 
Department wants. Could you remind me if there is any 
difference between the routine political replacements at the 
beginning of an Administration and firing U.S. attorneys for 
failing to file frivolous charges against Democrats to affect 
an upcoming election?
    Mr. Fine. That would be, in our view, a potentially illegal 
reason because it would potentially interfere with a 
prosecution of a particular case.
    Mr. Scott. And we were told at first that the reason this 
group of U.S. attorneys was fired was for cause and performance 
as a group. Are there any in that group for whom no credible 
case can be made that they were fired for performance? Were 
there any in the group?
    Mr. Fine. Were there any in the group? We looked at the 
situation of all of them and I think even the Department would 
admit now that Mr. Cummins had nothing to do with performance. 
It was to replace him to give someone else a chance to serve in 
that office. They made claims about performance issues with 
regard to several of the others. We didn't find them to be 
accurate. And with regard to some, we did find performance 
issues.
    Mr. Scott. And you found statements not to be accurate. 
Were these misleading statements that were made crimes? Let me 
ask it another way. Could they be the basis of criminal 
investigations for which, if proven, could be crimes?
    Mr. Fine. If somebody makes a false statement with the 
intention, knowing that it is false and makes that false 
statement to a tribunal or investigator or Congress, that is a 
crime. We are not saying that that occurred here. We are 
simply--we haven't established that. We described what we found 
in the report.
    Mr. Scott. Now you said that you could not fire them for 
illegal purposes. I assume you are talking about if someone was 
fired because they didn't give a kickback, that would be an 
illegal purpose, is that right?
    Mr. Fine. That would be one illegal purpose.
    Mr. Scott. And obstruction of justice. What other 
allegations of crimes are you talking about, allegations that 
need to be investigated?
    Mr. Fine. We talk about this in the chapter on David 
Iglesias. We talk about the potential issue of false statements 
and we talk about the issue of his removal and whether that was 
intended to interfere with the prosecution of a particular 
case.
    Mr. Scott. And what kind of crime would be implicated in 
that case?
    Mr. Fine. Potentially we raised the obstruction of justice 
statute and a wire fraud statute. We are not saying it is. I 
want to be clear about that.
    Mr. Scott. Right. Did they cooperate? Did you get good 
cooperation from the Department of Justice in your 
investigation?
    Mr. Fine. Yes.
    Mr. Scott. Did you get good cooperation from all of the 
witnesses in your investigation?
    Mr. Fine. Not all of them.
    Mr. Scott. Which ones did not cooperate?
    Mr. Fine. The main ones that we talk about are Harriet 
Miers, Karl Rove, Monica Goodling, Mr. Kelley at the White 
House, Mr. Klingler at the White House, Senator Domenici, his 
Chief of Staff. Those would be the main ones.
    Mr. Scott. And how did their failure to cooperate affect 
the investigation?
    Mr. Fine. It did not allow us to fully investigate all of 
the reasons for the removal of the U.S. attorneys and to fully 
develop all the facts.
    Mr. Scott. And with the potential criminal acts floating 
around, you were not able to get to the facts to ascertain 
whether or not crimes had been committed?
    Mr. Fine. We were not able to uncover all of the facts, and 
we believe that a prosecutor ought to look at them, yes.
    Mr. Scott. Now, a prosecutor has been appointed. What would 
be the difference between the appointment of an acting U.S. 
attorney and a special prosecutor not in the chain of command 
of the Department of Justice? Would there have been a 
difference?
    Mr. Fine. There would have been some differences. The 
regulations, 28 CFR, Part 600, describe what the duties are of 
a special counsel appointed under that special regulation as 
opposed to somebody appointed especially for this case within 
the Department of Justice as this attorney was. So there are 
differences in terms of who can be appointed and the reporting 
requirements of those two scenarios.
    Mr. Scott. And what are some of those differences?
    Mr. Fine. Part of the difference is who can be appointed. 
Under the special counsel regulations it could be only somebody 
outside the Department of Justice.
    Mr. Scott. And what is the disadvantage of appointing 
someone within the Department of Justice chain of command? Are 
there any conflict of interest potential or any other 
limitation that may occur if you are appointed from within the 
Department of Justice trying to investigate the Department of 
Justice?
    Mr. Fine. Well, from within the Department of Justice it 
would typically report in the typical chain through the Deputy 
Attorney General and the Attorney General. They have the 
authority of the Department of Justice and one of the benefits 
of it could be that you don't start up a whole new 
investigative body but use the experience and the resources of 
the Department of Justice. With the special counsel provisions 
there are some restrictions on what can happen to the report 
and the confidentiality of the report. So there are pros and 
cons each way. The Department decided to appoint Nora Dannehy, 
the acting U.S. attorney in Connecticut.
    Mr. Scott. And does the prosecutor in this case have 
subpoena power?
    Mr. Fine. The Department of Justice has subpoena power. I 
would assume this prosecutor has the subpoena power based upon 
her judgment about where this evidence would lead her.
    Mr. Scott. Is she able toempanel a grand jury?
    Mr. Fine. I would believe that she has full authority to 
investigate this as she deems fit.
    Mr. Scott. Can she immunize witnesses?
    Mr. Fine. I would believe she has the authority of the U.S. 
attorney in the District of Columbia, which would include that.
    Mr. Scott. Can she subpoena documents from the White House?
    Mr. Fine. Same answer. I believe she has the full 
authority.
    Mr. Scott. Can a U.S. attorney subpoena documents from the 
White House?
    Mr. Fine. The Department of Justice can subpoena any 
documents that it believes is relevant to its investigation.
    Mr. Scott. Can they issue subpoenas to witnesses like Karl 
Rove and Harriet Miers and require testimony?
    Mr. Fine. The Department of Justice can do that.
    Mr. Scott. Does she need approval to do any of those things 
and, if so, from whom?
    Mr. Fine. The precise direction and reporting requirements 
of this acting U.S. attorney I think are being developed. She 
has just been appointed. She was appointed on Monday, and I 
think she is getting her arms around this and will determine 
where to go and determine how this will be structured.
    Mr. Scott. If she decides that she wants to subpoena 
documents or subpoena witnesses, can the Attorney General 
overrule her.
    Mr. Fine. How this is structured within the Department I 
think is being assessed, and it is really not for me to 
describe at this stage and in this forum the exact reporting 
relationship. But I do believe that she needs to aggressively 
and thoroughly investigate this.
    Mr. Scott. What are the issues within the scope of her 
investigation? Is she limited at all in her scope by virtue of 
her appointment?
    Mr. Fine. Again, as to the scope of the investigation, I 
believe she will have full authority to take this where she 
believes it is appropriate.
    Mr. Scott. And so that would include all of the substantive 
crimes related to the firings, false statement, obstruction of 
Congress, obstruction of justice also?
    Mr. Fine. I believe she will have the authority to take 
this after her assessment of it in an appropriate fashion.
    Mr. Scott. And if she decided to prosecute someone could 
that be overruled by the Attorney General?
    Mr. Fine. The exact reporting relationship and scope of the 
authority and how that is structured I will just have to leave 
it for another day for them to discuss.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Conyers. Thank you very much. The Chair is pleased to 
recognize the distinguished Member of the Committee, Mel Watt, 
who is a Subcommittee Chairman of the Finance Committee as 
well.
    Mr. Watt. Mr. Chairman, I think I will pass in favor of 
somebody who was here earlier than I, if you choose to pass 
over me.
    Mr. Conyers. Do you care to name that person?
    Mr. Watt. Well, I don't know who was here earlier than I. 
So I will let you make that choice.
    Mr. Conyers. Well, let them make the choice.
    Mr. Watt. Were you here earlier than I?
    Ms. Lofgren. I wasn't taking attendance, but I will be 
happy to go.
    Mr. Watt. I will defer to the gentlelady from California.
    Mr. Conyers. The Chair recognizes Zoe Lofgren.
    Ms. Lofgren. Thank you, Mr. Chairman. Mr. Fine, we have 
gone through this looking at this U.S. attorney scandal for 
some time now and throughout this Republicans have been 
intoning, and we heard it here today, that because U.S. 
attorneys are political appointees who can be removed for any 
reason there is nothing wrong or remarkable with respect to 
these firings. But your report basically I think charges the 
Department of Justice for removing attorneys for improper 
political reasons.
    What makes a political motivation improper and what 
improper political motivations were at play in these firings?
    Mr. Fine. I think there were several instances of this that 
troubled us and caused us concern. First and probably most 
serious was David Iglesias, his removal and the allegation that 
it was intended to interfere with, or retaliation for, his 
prosecutive decision in a particular case and to influence that 
particular case. I think that would be improper.
    The second one we talked about, Mr. Graves, who was 
removed, based upon our investigation because he declined to 
get involved with a partisan political fight within the State 
of Missouri among political officials. He was told his job 
would be protected and then he was subsequently removed.
    We also saw that another official, Mr. Cummins, was removed 
to make a place for somebody else.
    And then the third and final thing that I would say is we 
talked to Mr. Sampson. Mr. Sampson said his analysis was not 
whether a U.S. attorney was mediocre, was simply mediocre. It 
was were they mediocre and didn't have political support. And 
so he even said he took some of those off the list because of 
their lack of political support. That, as I stated earlier, 
troubled us, and in our view threatened to undermine the 
independence and integrity of the Department of Justice if the 
message is that in order to maintain your position as a U.S. 
attorney you have to maintain political support, regardless of 
whether you are making appropriate prosecutive decisions based 
on the Department's priorities, the laws and the facts. If 
somebody, politically powerful people in your State, doesn't 
like that, you are subject to being removed and the Department 
of Justice is not going to look into this, support you, if you 
have been following its priorities, if you have been making 
appropriate prosecutive decisions, then that is what troubled 
us.
    Ms. Lofgren. Basically I think what you are saying is 
legally you could use a trivial reason. I don't like the cut of 
your jib but you can't use an improper reason that, you know, 
you are going to get fired unless you use the full weight of 
the Federal Government to prosecute my political enemies.
    Mr. Fine. You can't use an illegal reason.
    Ms. Lofgren. My understanding is that you are continuing 
the investigation in the Civil Rights Division, is that 
correct?
    Mr. Fine. That investigation is ongoing.
    Ms. Lofgren. So I imagine you are unable to comment on it 
at this time.
    Mr. Fine. That is correct.
    Ms. Lofgren. So I won't ask you to. But I am concerned that 
there is a cloud over the Civil Division especially as it 
relates to voting and we have a very important election coming 
up. It would be ideal if we could dissipate that cloud before 
Election Day. Do you anticipate the report being done before 
then?
    Mr. Fine. I don't want to predict when it will be done. I 
have been here for 8 years. When I do that, I am often wrong. 
And we recognize the importance of this matter.
    Ms. Lofgren. I don't want to abuse the time, but I do have 
one final question. I have many questions. But I know other 
Members do as well. You have noted in your investigation in the 
firing of Mr. Iglesias that you were hampered by a lack of 
cooperation from key witnesses, and we are familiar with that 
obstacle in this Committee. With Miers and Rove that doesn't 
surprise me, and we are pursuing their testimony here through 
contempt citations. But what surprised me was Senator Domenici 
and his Chief of Staff. It is my understanding they refused to 
be interviewed. And there is no executive privilege that they 
could assert. I am curious what the reasons were that they 
gave, if any, for refusing to cooperate.
    Mr. Fine. There was a series of reasons with Senator 
Domenici, through his counsel. Initially it was the pendency of 
the Senate ethics investigation and that they would cooperate 
with us after that. When the ethics investigation ended, we 
renewed our request, and then there were concerns expressed by 
the Senator's counsel about whether they had oversight over the 
budget of the Department of Justice. We didn't think that was a 
legitimate reason not to cooperate with us. And the other 
concern was about wanting to know the conditions of the 
interview. And we had done it a certain way with others. We 
were willing to discuss that and waive them. Eventually, they 
offered to provide responses to written questions through 
counsel which we declined to go forward with. We wanted to 
interview Senator Domenici and not ask written questions and 
receive written answers.
    Ms. Lofgren. Of course not. I don't think those are valid 
reasons personally. You don't need to give your opinion, but 
certainly the U.S. attorney reviewing this will have her own 
opportunity to compel testimony next year. And I thank the 
Chairman for yielding.
    Mr. Conyers. The Chair recognizes the gentleman from 
Massachusetts, himself a State prosecutor for many years before 
coming to the Congress, Bill Delahunt.
    Mr. Delahunt. Thank you, Mr. Chairman. Mr. Fine, once more 
an excellent piece of work. You are to be commended. You have 
made a significant contribution, I believe, to the Department 
of Justice and to the American people. This is all about 
restoring confidence in the integrity of the Department.
    And I also want to acknowledge the two U.S. attorneys that 
are here. Their reputations are superb. Their credentials are 
superb, and I think it is fair to say that they have been 
victims, and that is sad but their reputations I would suggest 
have been enhanced with the attention that this particular 
issue has received from this Committee. So I think the truth is 
out, and I think the truth will continue to come out.
    I just want to make a comment. Maybe one question. As the 
Chair indicated, I was a State prosecutor. Grand juries in the 
States or at least in the Commonwealth of Massachusetts can 
issue a report if not an indictment. Is the same true in the 
Federal system?
    Mr. Fine. I believe it is possible in extraordinary 
circumstances. I think it is. I don't know whether this 
actually happened. I know the Rocky Flats case is one that 
comes to mind. I don't know the exact outcome of that, but I 
think in extraordinary cases that is permissible with 
permission of the court.
    Mr. Delahunt. I see someone who has the answer.
    Mr. Fine. He says I am generally correct. It may have to be 
preapproved by a court. There has to be certain conditions. I 
am not saying it is a certainty or an easy thing to do.
    Mr. Delahunt. What I glean from your report and not just 
this report, I think what you have done is at least for me you 
have connected the dots by alluding to the other reports that 
you have issued. And the conclusion I reach is that the 
Department of Justice, this Department of Justice, particularly 
under the tutelage of Attorney General Gonzales, was permeated 
with crass partisan politics. And I am not naive. Obviously, 
U.S. attorneys secure their position because they are 
politically connected. I understand that. And I think you 
addressed that well. They are to leave the politics at the door 
after they take their oath. But that didn't occur under the 
tutelage of that particular Attorney General. And because it 
became an order of magnitude that infected every single aspect 
of the Department of Justice, it wasn't just about the removal 
of the U.S. attorneys about which we had hearings. The other 
report was the hiring practices for the honors program and 
summer internships also had a political filter, a program that 
is highly regarded and well respected and clearly something 
that most young law students or even young lawyers look at as a 
resume builder, as something to compete for, and yet even there 
it was about politics and whether you passed the political and 
ideological litmus test.
    And then it came to hiring practices, hiring practices for 
career prosecutors. Again your report corroborates that crass, 
ideological and partisan political considerations just infected 
the Department of the Attorney General under Alberto Gonzales.
    There was a test, a political test, it would appear to be, 
for every function within the Department of Justice, and I find 
that deplorable. And I think it is important that we speak to 
that issue because I know many of the career people in the 
Department of Justice were disappointed and were disgusted with 
what was happening. And I think it is important that the 
American people know that the career people that serve this 
country so well in the administration of justice as members of 
the Department of Justice had nothing to do with what was 
occurring at the political level and that their confidence in 
the Department should remain because of the career people that 
make it, I believe, something that is a shining example, if you 
will, particularly for young lawyers who are looking for a 
career of public service.
    It is an excellent department, and under the tutelage of 
Alberto Gonzales, he undermined that reputation at every level 
for summer jobs, for hiring professionals, for the removal of 
U.S. attorneys. It is a legacy that is disgraceful, and I feel 
badly for the professionals in the Department of Justice.
    But I think you have connected the dots, because we take a 
look at each of these reports in a silo view, if you will, but 
with each report that is issued by your office it is the same 
story. There was a political and ideological aspect that just 
jumps out at you. It might have been true in other 
Administrations, but it would appear the arrogance of this 
particular Administration in their hubris didn't even care, 
didn't care. A lot is said here about Attorney General Gonzales 
and his Deputy Attorney General Paul McNulty, who many of us 
knew here and I found Paul McNulty to be a man of integrity, 
someone that worked well with Democrats on this side of the 
aisle. I think he, as far as I know, conducted himself very 
well as a U.S. attorney. But I had a sense when Monica Goodling 
testified here that there was testimony that Paul McNulty was--
that she and others in the White House were instructed via e-
mail to circumvent the Deputy Attorney General, to keep him out 
of the loop. It is as if they set up their own group, if you 
will, within the Department, to make sure that things were 
going well in their very narrow political and ideological view 
of how justice is administered.
    We have seen it elsewhere in this Administration.
    I think of the DOD, Department of Defense. They had their 
own intelligence shop that clearly found information or saw 
information vastly different than other agencies within the 
intelligence community, and it has led to disaster after 
disaster.
    But in any event I don't have any questions, but I just 
wanted to make that observation because I think what you did in 
your opening remarks, in your written remarks, that you 
connected the dots. And what we have here is a mosaic that I 
think is sad and deplorable, and let me conclude by saying 
thank you for the work that you and the members of the 
inspector general's staff have done for all of us. And with 
that I yield back.
    Mr. Conyers. Thank you, Mr. Delahunt. I hope you are 
feeling better.
    Mr. Delahunt. Much better.
    Mr. Conyers. The Chair recognizes the distinguished 
gentleman from Georgia, himself a former magistrate in the 
court of that State, Hank Johnson.
    Mr. Johnson. Thank you, Mr. Chairman.
    Mr. Fine, was there any evidence uncovered in your report 
or in your investigation indicating that any of the U.S. 
attorneys were pressured to investigate and/or prosecute public 
corruption cases involving Democrats?
    Mr. Fine. We talked about the allegation in regard to Mr. 
Iglesias, and the allegation was that he was pressured 
regarding the timing of a public corruption investigation 
called the Courthouse case in New Mexico which involved 
Democrats.
    Mr. Johnson. In my own State of Georgia, former State 
Senator Charles Walker may have been subjected to a selective 
prosecution. Mr. Walker was a high profile Democrat. He made 
history by being elected the first African American to become 
majority leader of the Senate in the country. His efforts to 
change the Georgia State flag and success at beating the 
current Governor of Georgia, Sonny Perdue, for the position of 
Senate majority leader has led many to believe that those 
events led to his downfall. During the current Governor's 
campaign he vowed to create an inspector general's office to 
investigate corruption and cronyism. Concurrently the Georgia 
Republican leadership openly pressured former U.S. Attorney 
Richard Thompson to go after prominent Democrats, a fact which 
was confirmed through a subsequent internal investigation by 
the Department of Justice. The DOJ investigation ultimately 
concluded that U.S. Attorney Thompson, quote, abused his 
authority and violated the public trust for the purpose of 
benefiting a personal and political ally, unquote. After the 
internal investigation, U.S. Attorney Thompson resigned. 
Thompson's successor continued the investigation against 
Senator Walker. The resulting investigation ended in the 
indictment filed against Senator Walker on 142 counts of mail 
fraud, tax fraud and conspiracy. Despite the pending 
indictment, Senator Walker was reelected but he was later 
convicted on 127 counts and sentenced to serve 10 years and 1 
month. He was also fined and assessed a $1 million fine. Mr. 
Walker currently sits in a medium security prison. There are 
real concerns that Senator Walker might have been prosecuted 
based primarily on politics rather than on misdeeds. Selective 
prosecution does not necessarily negate any crime that may have 
taken place, but it does bring into question why some may be 
pursued and others not.
    Did your investigation, sir, uncover any evidence that 
perhaps prosecutions or investigations involving Republicans as 
the target were--that any U.S. attorneys were pressured to end 
those investigations?
    Mr. Fine. No, we did not see that. Although our report 
addressed the removal of these nine U.S. attorneys, it was not 
an exhaustive review of prosecutorial decisions by the 
Department of Justice.
    Mr. Johnson. Switching directions now, I want to ask you 
some questions about Harriet Miers and her refusal to speak to 
your investigators. The report that you have issued says that 
the White House encouraged aides to speak to you. Is that 
correct?
    Mr. Fine. Yes, they did. The White House Counsel's office, 
we had discussions with them, and they did encourage both 
current and informer White House officials to speak to us, and 
there were a number of current White House officials who did 
speak to us.
    Mr. Johnson. Was Harriet Miers one of those who the White 
House encouraged to speak to you?
    Mr. Fine. She was one who we requested to be interviewed, 
and my understanding is that all the witnesses were encouraged 
by the White House Counsel's office to speak to us.
    Mr. Johnson. So am I correct that she said that she would 
not talk to your investigators because she did not want to risk 
having to appear before this Committee?
    Mr. Fine. The reason that she gave--at least her attorney 
gave--was that an interview might undermine her ability to rely 
on the instruction she had received from the White House 
directing her not to appear for congressional testimony. So it 
did have potentially, in her attorney's view, an impact on that 
position.
    Mr. Johnson. Now this is very confusing. Harriet Miers' 
lawyer told us that she would be happy to testify but the 
President had ordered her not to. So it seems to me that they 
are playing games. To us, Ms. Miers says she is willing to 
testify but the White House won't let her and to you she says 
that she won't testify even though the White House says it is 
okay. What is your reaction to that?
    Mr. Fine. Well, I think the White House encouraged her to 
but her attorney believed it might have an impact on her 
ability to rely on instructions from the White House. So while 
the White House was saying we encourage current and former 
White House officials to talk, I think her attorney made an 
independent judgment about that.
    Mr. Johnson. All right. I have no further questions. I will 
yield back.
    Mr. Conyers. Thank you, Mr. Johnson. The Chair recognizes 
Mr. Mel Watt.
    Mr. Watt. Thank you, Mr. Chairman. And I appreciate the 
Chairman coming back to me in the rotation since I just arrived 
when my time first came up. I want to follow up on my good 
friend and colleague, Mr. Johnson's, Representative Johnson's 
questions in this way. There is an ongoing investigation that 
you are continuing to do and then there is the special 
prosecutor, is that correct?
    Mr. Fine. No. The special prosecutor has been assigned to 
pursue our investigation. So it is not an independent, or two 
different, investigations. She is, my understanding is, going 
to take what we have done, look at that, and pursue the 
investigation.
    Mr. Watt. So her, the parameters of her authority would be 
the things that you have already investigated or you have done 
some preliminary work on?
    Mr. Fine. I believe that she would, in the first instance, 
rely upon that and take it wherever it leads.
    Mr. Watt. And the scope of what you continue to do is what?
    Mr. Fine. We are not doing something separate and 
independent from what we have done and what the special 
prosecutor will continue to take. Our report is complete and we 
are not going forward with an alternative investigation to what 
the special prosecutor is pursuing.
    Mr. Watt. Would it be within your purview if additional 
allegations of politically motivated prosecutions were brought 
to your attention, or are you restricted to the cases that you 
have already done?
    Mr. Fine. No, we are not restricted. If we receive 
allegations that warrant investigation, we have the authority 
to do that. I will say, though, we do not have the authority to 
investigate prosecuted decisions made by Department of Justice 
prosecutors. That is within the jurisdiction of the Office of 
Professional Responsibility. As you probably know, we have 
restrictions on our jurisdiction within the Department of 
Justice. We can investigate everything except for attorneys in 
the exercise of their legal duties to investigate, litigate, 
and provide legal advice. That is for the Office of 
Professional Responsibility to investigate. That is the carve-
out for our jurisdiction. And I have talked about that and 
suggested that it be amended, and that has not happened yet.
    Mr. Watt. And who would have to amend that?
    Mr. Fine. The Congress of the United States.
    Mr. Watt. Let me be clear on what that dividing line is. 
Are you saying if there were other cases in which there was a 
likelihood that a prosecution was pursued, it is already done, 
prosecution was pursued for political reasons, regardless of 
the outcome, that would be outside of your jurisdiction to 
investigate or inside your jurisdiction?
    Mr. Fine. That would be outside. That would be within the 
jurisdiction of the Office of Professional Responsibility 
because it has to do with a decision by a prosecutor or an 
assistant U.S. attorney or U.S. attorney to make a prosecutive 
decision, and the basis for that would be within their 
jurisdiction to investigate. I do know, it has been publicly 
stated, they are investigating the Siegelman case, for example. 
That is within their investigation, not our jurisdiction.
    Mr. Watt. When you are talking about improper influence 
being brought on a prosecutor to prosecute, as opposed to the 
prosecution itself, where would that lie? Would it be within 
your jurisdiction or the other jurisdiction?
    Mr. Fine. Oh, I see. If the allegation was that there was 
improper pressure to bring a prosecution but the prosecution 
didn't happen, the prosecutor resisted it, but you want to look 
at what the----
    Mr. Watt. No, even if the prosecutor didn't resist it, 
actually prosecuted the case, if there were improper pressures 
brought on that prosecutor to bring the case, whose 
jurisdiction would that be in?
    Mr. Fine. I would assume it would be within the Office of 
Professional Responsibility, but these are gray areas, and it 
seems to me that would be related to an exercise of a 
Department of Justice attorney's legal responsibilities. So 
that is within their jurisdiction.
    Mr. Watt. That would be within their jurisdiction. Okay. So 
I guess what you are telling me is if this set of circumstances 
there was some reasonable belief that improper pressure was 
brought on a prosecutor, and that the prosecution did proceed, 
and I had knowledge of that, I should be bringing it to your 
attention and the ethics people or should I just be bringing it 
to the attention of the other side and tell me who that other 
side is, specifically?
    Mr. Fine. The other side is the Office of Professional 
Responsibility, led by Marshall Jarrett, whom we jointly 
investigated this matter with. There are times where people 
bring to both of our attention the allegation, and we sort it 
out, we communicate, and we determine which is----
    Mr. Watt. So I would be safer to bring it to both of your 
attentions, that is what I hear you say?
    Mr. Fine. That would be fine to do.
    Mr. Watt. All right. A couple of people, and I pursue this 
right after Representative Johnson pursued his question 
because. There has been some speculation that outside the 
purview of all of these cases that you have investigated, there 
were a lot of very improper, improperly motivated 
investigations and prosecutions taking place in various 
jurisdictions. And at least one of those, or one or more of 
them actually, is--I have become aware of because it was raised 
with me by constituents of mine. And I am just trying to be 
transparent and clear on who I should be raising that with if, 
in fact, substantial enough evidence that seems to me to rise 
to a real concern about improper conduct, who I should pass 
that along to.
    So I appreciate that. I will let it lay there without even 
raising the context or the specific case, that case or cases 
that I am concerned about.
    Thank you, Mr. Chairman. I yield back.
    Mr. Conyers. Thank you very much. The Chair recognizes 
Artur Davis of Alabama, himself a former Assistant United 
States Attorney.
    Mr. Davis. Thank you, Mr. Chairman. Let me, Mr. Fine, given 
the time constraints, we have a vote that is an important one 
as you know that will be called soon, try to hit three separate 
areas and get your reactions to them.
    The first one, and I want to finally sweep away some of 
these issues that have been raised by some on the minority side 
of the aisle. One of my colleagues on the minority side at one 
point refers to the U.S. attorneys as being a political 
appointment and talked about the President's ultimate 
discretion to replace political appointments as he wishes. I 
hope no one listening in this hearing misses the obvious. A 
U.S. attorney is not a policy instrument. A U.S. attorney has 
discretion over whether or not to charge people which could 
lead to their freedom being taken away. A U.S. attorney has the 
discretion to launch an investigation which is something that 
could unravel someone's political career or reputation 
regardless of what comes of those charges. It is not a policy 
making instrument. This isn't your Assistant Secretary of HUD 
for Congressional Relations. That is an important point. I 
assume you would agree with that, Mr. Fine.
    Mr. Fine. I generally agree with it. It is a very important 
position and they affect the life and liberty of citizens in 
the United States.
    Mr. Davis. The second set of observations, you looked at 
the very specific and very important question of whether 
certain U.S. attorneys were removed because they lost political 
favor. That raises a corollary question that has come up in the 
course of this investigation over and over. If there were U.S. 
attorneys who got fired because they were making decisions that 
weren't the best political decisions, it raises the obvious 
question, were there U.S. attorneys who were under performers 
who were unsuccessful who somehow stayed on because they made 
the right political decisions? Did you look at take parallel 
question?
    Mr. Fine. We raised that issue, and that is the harm of 
this issue; that is, if it is based upon political support, as 
opposed to an assessment are you making the appropriate 
prosecutive judgments based on the law of the facts and the 
Department priorities, that will inevitably be the concern and 
people may think that, and they will lose confidence in the 
Department of Justice that they are making decisions based 
solely on the law and the facts and will believe that they are 
U.S. attorneys who are doing something to stay off a list, or 
that a U.S. attorney did something that got them on the list, 
when in fact they are trying to do their best to assess the law 
and the facts. And that is the harm that we saw of assessing it 
based upon political support.
    Mr. Davis. I was a Federal prosecutor for about 5 years and 
practiced criminal defense law after that. So I spent about 10 
years in and around U.S. attorneys offices. And in my sense 
there is either a strict wall between politics and prosecutions 
or there is no wall at all. You can't be a little bit pregnant. 
Either there is a strict wall that says politics has nothing to 
do with this or you have an environment in which God knows what 
comes over the transom.
    This is what I am trying to get my hands around, the notion 
of a United States Senator picking up the telephone and calling 
a United States attorney about ongoing cases. That would have 
been inconceivable to me when I was an assistant U.S. attorney. 
I am trying to get my hands around the idea of a Chief of Staff 
of a Member of Congress picking up the phone and calling a 
United States attorney to ask about the status of a case and 
then going on to say, John, this is important that you guys 
move on this. I can't have imagined that having happened when I 
did the work that I did.
    I am trying to wrap my hands around the idea of a political 
party chairman raising questions about why certain cases 
weren't brought and that person not being thrown out of the 
office of whomever he raised those concerns with. I am trying 
to get my hands around the notion of Members of Congress even 
thinking they could call U.S. attorneys to inquire about cases. 
Frankly, I am trying to get my hands around the concept of 
Members of Congress complaining about U.S. attorneys because I 
can't imagine that. If my party wins in November I can't 
imagine picking up the phone and calling the Department of 
Justice and saying you know this U.S. attorney kind of bugs me, 
I don't like the people they are prosecuting, so that person 
needs to go. And I suspect if I did that I think it would not 
be very well received.
    Those things happened. Whether or not they influenced cases 
is an open question. Thankfully, it appears they didn't 
influence Iglesias and McKay and Graves. That is why Iglesias 
and McKay and Graves don't have jobs. But it raises the obvious 
question that so many people have raised in the context of 
Siegelman and these other cases that are floating around, is it 
conceivable that political partisans picked up some phone 
somewhere and called either influential people in DOJ or U.S. 
attorneys and said this is important to our agenda, go forward.
    It also raises a question of atmosphere. Could ambitious 
U.S. attorneys have thought, you know, what if I bring this 
particular case and I get this particular notch on my belt, 
maybe that will allow me to climb the career ladder.
    Can you react to how I am looking at that, Mr. Fine?
    Mr. Fine. I do think, as I stated earlier, the Department 
of Justice can't control what everyone does. But if the 
Department of Justice gets a call like that, particularly an 
assistant U.S. attorney, needs to report it to the Department 
of Justice, then the Department of Justice has an obligation 
not to simply accept it and not to remove a U.S. attorney based 
upon complaints alone. And it does I think when the Department 
of Justice doesn't have the responsibility and doesn't take 
that responsibility to protect the independence and integrity 
of prosecutive decisions by simply accepting that and removing 
U.S. attorneys without any inquiry whatsoever, I think that is 
harmful to the Department of Justice and the confidence in the 
Department of Justice. And I hope that through exposure of 
this, by sunlight on this, the Department of Justice can 
restore the confidence it has. And I think it will. And I think 
Mr. Delahunt talked about this.
    The career attorneys of the Department of Justice ought to 
be commended. They have worked hard, and they do tremendous 
work. But these problems are problems. The Department of 
Justice is a proud institution that has a longstanding history 
of impartial justice, and I believe it will get by, get through 
this, and get over this, and I think it is critical that it 
does.
    Mr. Davis. Another observation that flows out of that. You 
have identified and several questioners have identified various 
costs of this loss of credibility around the Department of 
Justice. There is another obvious cost. Virtually any defendant 
or any target who is a political figure is now able to stand on 
a soapbox somewhere and say, I was politically prosecuted. 
Possibly some more a target for political reasons, overwhelming 
majority probably were not. But what has happened, and this has 
happened to virtually every Member of this Committee. Almost 
every one on this side of the aisle has gotten phone calls 
since this investigation surfaced from someone who says, I am 
State Senator Smith, I think they got me because I was a 
Democrat, or I am mayor so-and-so, I think they are after me 
because I am a Democrat. And the next thing you know, that 
becomes a regular prevailing argument, and honestly it has more 
credibility than it would have had before because of these 
allegations, because the wall between politics and judgment 
collapsed. That is a cost that we should not lose sight of. It 
has now created a situation and an atmosphere in which all 
allegations of political misconduct take on a layer of 
plausibility. That is something we should worry about.
    So I would just simply end, Mr. Chairman, by thanking you. 
You made the decision which I think has been borne out by the 
facts to do an aggressive inquiry and investigation and to 
encourage an aggressive inquiry and investigation into these 
allegations. There were a number of people, frankly, 
particularly on the other side of the aisle, who argued that 
this was much ado about nothing or that when Gonzales left the 
Department there was no longer a cause clbre, so our interest 
in the subject should fade. And even now there are people who 
suggest to you that your interest in obtaining testimony from 
Rove and Miers and Bolten is, well, it is all spilled milk and 
a new Administration is coming in, we ought to move on. I thank 
the Chair for making the correct decision that if there is a 
taint around the Department of Justice and potential 
obstructive acts or politically influenced acts around this 
Department, there is not a statute of limitations around that 
as a practical matter, and it is something we ought to be 
concerned about until we ferret out all the facts regardless of 
what Administration is in power. And I thank you for that, Mr. 
Chairman.
    Mr. Conyers. I thank the gentleman from Alabama.
    Mr. Cannon. Does the Chair know when the next vote is?
    Mr. Conyers. Surely. It is almost pending.
    Mr. Cannon. I thank the Chair.
    Mr. Conyers. The Chair is now pleased to recognize Bob 
Wexler of Florida, author and distinguished Member of the 
Intellectual Property Subcommittee.
    Mr. Wexler. Thank you very much, Mr. Chairman, for the very 
kind introduction. I want to echo Mr. Davis' comments in terms 
of your persistence, Mr. Chairman, with this topic and others. 
It is critically important, and I thank you.
    Mr. Fine, in reviewing the report, like many Americans, I 
would like to say I was surprised, but I can't. I was more 
astonished, disgusted to see the results of the Department of 
Justice's own Office of Inspector General, which essentially if 
I understand it correctly finds that firings of U.S. attorneys 
were done in an inappropriate manner and essentially fueled by 
politics. And I want to echo Mr. Davis and others' comments 
regarding the essential role that U.S. attorneys have in our 
judicial system, the critical and serious role that they 
provide and the fact that Americans regardless of their 
political ideology must be able to trust that U.S. attorneys 
are free to prosecute cases in a free and impartial way, 
without fear, without fear of political retribution, 
particularly retribution from powerful political figures such 
as Mr. Rove or others.
    The Bush administration's action in targeting U.S. 
attorneys for inappropriately political reasons clearly has 
undermined the American people's faith and, as your report 
indicates, severely undermines the independence and nonpartisan 
tradition of the Department of Justice. It is clear, if I 
understand it correctly, that the firings of certain of these 
U.S. attorneys had a profoundly disruptive impact across the 
country, particularly Mr. Iglesias, for apparently not bringing 
up a politically based case in New Mexico, Mr. Charlton in 
Arizona for daring to question whether a case was strong enough 
to seek the death penalty. But for me the more I learned, the 
case that upsets me the most, that ought to send a chill up 
every American's spine, is the case of former governor Don 
Siegelman of Alabama, who appeared to have been targeted by 
Karl Rove and others for what amount to base political and 
partisan reasons, and then he suffered greatly in the process.
    My question, Mr. Fine, to you, essentially is, where do we 
go from here? This Committee under the Chairman's direction, 
excellent direction, we have conducted our investigation, we 
have been blocked too many times by a White House that refuses 
to allow essentially any oversight over its actions. I 
understand you had great difficulty getting cooperation from 
the White House as well. As has been rightfully pointed out, 
subpoenas for Mr. Rove and Ms. Miers, Mr. Bolten and others by 
the Judiciary Committee have been ignored.
    What do you suggest are the appropriate next steps? And I 
would also like to ask you, just because I remember so clearly 
when Mr. Gonzales was before this Committee as the Attorney 
General and he was asked by many people, including myself, 
about the case of Mr. Iglesias, and I remember him talking and 
referring to a report that gave a reason for his dismissal the 
fact that he allegedly was an absentee landlord, and I was 
hoping that you could specifically provide for the Committee 
your finding as to that allegation.
    Mr. Fine. We did not find that he was an absentee landlord. 
We did not find it was even raised prior to his removal. He did 
have duties that he had to undertake with the Reserves that 
brought him out of the office a fair amount. But everyone knew 
about that and he was in contact with the office, and this was 
not a reason for his firing we determined. We determined that 
this was an after the fact rationalization for it, and that was 
not the reason that actually led to his firing.
    Mr. Wexler. Did you find, I am curious, in terms of the 
Attorney General himself, Mr. Gonzales at the time, did you 
have a sense of what his understanding was with respect to the 
reasons in light of what he provided to this Committee?
    Mr. Fine. Our overall finding on that is that he was 
remarkably unengaged from the process. He had delegated it, 
with little supervision or oversight to Kyle Sampson. That he 
approved these removals without inquiring in detail why certain 
people were on the list and what process had been used. And he 
called himself the delegator. He delegated this and did not 
provide sufficient oversight or supervision over a very 
significant matter, the removal of a group of high-level 
appointees who had important jobs within the Department. And we 
thought that he abdicated his responsibilities to ensure that 
it was appropriate what was happening here.
    Mr. Wexler. Thank you very much, Mr. Fine. I also want to 
commend you and all the people that work with you. People like 
you are what allow the American people to have confidence again 
because you appear to be--and I have no doubt your purpose is 
to provide the truth to this Congress. And we greatly 
appreciate yours and the people who work with you, your 
efforts. Thank you very much.
    Mr. Conyers. Thank you, Mr. Wexler.
    I am pleased to introduce our Chairman of the Constitution 
Committee, Jerry Nadler, who has worked on many of these 
matters more than perhaps any other Member of the Judiciary 
Committee.
    Mr. Nadler. I thank the Chairman. I thank the inspector 
general.
    Mr. Fine, it has been reported that Ms. Dannehy was 
appointed to the special counsel who will make a preliminary 
report to the Attorney General within the next 2 months. Do you 
know when this report will be made public?
    Mr. Fine. I think what it is, is the status of the 
investigation at that point to the Deputy Attorney General and 
the Attorney General to see where she is in the process. I 
don't know if it is sort of a formal report. I think it is more 
of a status report.
    Mr. Nadler. So you are saying that will not be made public 
then?
    Mr. Fine. I don't know what exactly is contemplated with 
that. So I can't speak for that, other than my understanding is 
it is really a status report to the Deputy Attorney General and 
the Attorney General.
    Mr. Nadler. And let me ask you one other question on this 
same topic before turning to another one. Do you know whether 
she will be precluded by the Federal Rules Criminal Procedure 
6(e) from sharing with your office and OPR or disclosing to the 
public or Congress information that she discovers through any 
grand jury proceedings?
    Mr. Fine. Disclosing to Congress or the public is----
    Mr. Nadler. Or to your office and the----
    Mr. Fine. Let me address that one first, which is dealt 
with by rule 6(e). With regard to who is disclosed within the 
Department, people who are working on the investigation and are 
on the 6(e), they can have the information.
    Mr. Nadler. You are saying they can have the information?
    Mr. Fine. They can have the information if they are working 
on the investigation and put on the 6(e) list by leaders of the 
investigation.
    Mr. Nadler. Okay. Let me ask you one other question now 
about the U.S. Attorney Charlton. The report says he was--the 
most significant factor in his removal was his actions in a 
death penalty case. He consistently opposed the Department's 
decision to seek the death penalty in a specific case. He 
irritated Department leaders by seeking a meeting with the 
Attorney General to urge him to reconsider his decision.
    We are troubled that Department officials considered 
Charlton's action in the death penalty case, including 
requesting a meeting with the AG, to be inappropriate. We do 
not believe his actions were insubordinate or they justified 
his removal. In other words, you are saying that because--given 
the facts of a given case, whatever they were, and I will say I 
don't know anything about the case--he thought the death 
penalty would be inappropriate, that they shouldn't seek it. He 
was fired for energetically making that case within the 
Department.
    Mr. Fine. We think that that was the precipitating event. 
The Department had other concerns that they raised, the taping 
policy of interrogations, a claim that he wasn't 
appropriately----
    Mr. Nadler. But it was a precipitating----
    Mr. Fine. We consider this the most significant.
    Mr. Nadler. Does not that send a message to other U.S. 
attorneys to say, regardless of your judgments in a given case, 
seek the death penalty when in doubt?
    Mr. Fine. I think the message it sends, which in my view 
not appropriate, is that vigorous and firm discussion and 
debate about a very significant issue had significant 
consequences for him. And that was----
    Mr. Nadler. In other words, don't protect--in other words, 
when someone higher than you says there should be a death 
penalty or perhaps something else, don't----
    Mr. Fine. I am not sure that is the message they were 
trying to send.
    Mr. Nadler. I didn't say they were trying to send it.
    Mr. Fine. I understand that. But I think the message that 
it sent was, you are being too aggressive about this and you 
are being too pushy. And I don't think that that was 
appropriate or right when we are talking about a death penalty 
case.
    Mr. Nadler. Exactly. Let me ask you a different question on 
a different subject, not this report, but you wrote a report on 
the politicization of hiring and firing decisions. We had 
testimony here a few months ago from Monica Goodling--maybe a 
year ago already, I suppose--from Monica Goodling about the 
improper and illegal use of political criteria to hire people. 
And it has been admitted that this happened, obviously. Tens, 
maybe hundreds, of people were hired for positions on the basis 
of improper political--and people were not considered on the 
basis of improper political considerations.
    Well, why would it be wrong to suggest that in order for 
the consequences of these political hirings to be eliminated, 
everyone hired under these improper considerations should be 
subject to reconsideration and they should in effect all be 
unhired and asked to reapply along with other people, and let a 
proper and fair and legal hiring procedure in which they would 
be eligible, because maybe some people who were hired for 
political reasons were otherwise qualified? But why shouldn't 
this be done over instead of freezing into place--many people 
were hired for improper reasons, some of whom may be qualified 
and some of whom may not be qualified.
    Mr. Fine. Let me separate that into two. Of the two reports 
we did, one was the politicized hiring in the honors program in 
the Justice Department, and the other was politicized hiring by 
Monica Goodling and others in the Office of the Attorney 
General, particularly with regard to immigration judges.
    With regard to the honors program, I think people who got 
through the process, they were qualified. The problem was, 
people who were deselected for liberal or Democratic 
indications on their resume were also qualified and didn't get 
a chance to compete. And that was the problem. I know the 
Department has now offered them a chance to apply. And if they 
want to be considered now for an honors program slot, even 
though in they are more than a year out of law school, that 
would be considered. And I think that is the appropriate 
response. I don't think the people who were hired were 
unqualified. So I think they shouldn't be removed.
    With regard to the Monica Goodling case, the most troubling 
instance of this was immigration judges where Monica Goodling 
and Kyle Sampson used political considerations to hire them 
when it is a career slot. They claimed they didn't know that it 
was a career slot. And they clearly used political 
considerations.
    I also believe it is not appropriate now to go back and 
strip these people of their civil service protections because 
they didn't do anything wrong. Those people didn't do anything 
wrong. And to go back and say whether they are or they are not 
qualified now, after the fact, is very difficult. I am not sure 
that is the appropriate thing to do. I think the appropriate 
thing to do is to supervise them and evaluate them the way you 
would anybody. And if they are not performing appropriately, 
they shouldn't have the job. But if they are, I think they 
should.
    It is not hundreds of them. It is probably, I think, around 
20 or 30 of them over the course of the period that we had 
under review. So I think the message is to prevent this from 
happening again and not necessarily to go and fire people who 
are in the job if their evaluations show they are performing 
appropriately.
    Mr. Nadler. My last question is--and I hope no one asked 
this before. I was on the floor for the debate on the bailout 
bill.
    I assume from your report that you concluded that Harriet 
Miers and Karl Rove and others in the White House played a real 
role in all the decisions about the U.S. attorney firings.
    Mr. Fine. We didn't make a judgment of what role--how big a 
role they played or what role. There were indications that they 
were in communications with the Department of Justice, and that 
we were not able to uncover the exact role they played.
    Mr. Nadler. So we do not know how extensive their 
involvement was and what role partisan political considerations 
may have played in what they did?
    Mr. Fine. We do not know their precise role.
    Mr. Nadler. Well, let me ask you this last question then, 
although it might follow from the previous questions. Why is it 
important that on-the-record statements be obtained from the 
two of them, Ms. Miers and Mr. Rove and other White House 
officials, and that internal White House documents be reviewed 
which so far have been refused both to your office and to our 
Committee. I assume you think it is important that that be 
done.
    Mr. Fine. I think it is important to fully investigate the 
facts of this case, that we went a long way. We, I believe, 
uncovered most of the facts, but to determine fully exactly 
what happened, I think it is important to interview those 
witnesses.
    Mr. Nadler. And in your judgment, is there any valid legal 
reason which would excuse them from testifying pursuant to your 
request or subpoena pursuant to this Committee's or a Senate 
Committee's subpoena?
    Mr. Fine. Oh, I think those are two issues. One, is our 
investigation. The Congress' investigation I am not going to 
analyze the privilege issues as it relates to Congress. With 
regard to us, I think that the prosecutor ought to determine 
whether testimony is appropriate and to seek to obtain it.
    Mr. Nadler. Thank you very much.
    Mr. Conyers. Mr. Inspector General, your stamina is as 
strong as the good work you have been doing across the years. 
We thank you and your staff. And we also thank Chris Cannon for 
joining us at what may be his last hearing before the Judiciary 
Committee.
    Mr. Cannon. One can only hope.
    Mr. Conyers. Members will have a week to submit additional 
questions for you if they may. And the record will be open for 
another week for submission of additional materials. And we 
thank you so very much for the good work that you have been 
doing.
    The Committee stands adjourned.
    [Whereupon, at 1:02 p.m., the Committee was adjourned.]
                            A P P E N D I X

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               Material Submitted for the Hearing Record

Response to Post-Hearing Questions submitted to the Honorable Glenn A. 
          Fine, Inspector General, U.S. Department of Justice































































                                 
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