[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
CONTINUING INVESTIGATION INTO THE U.S. ATTORNEYS CONTROVERSY AND
RELATED MATTERS (PART IV)
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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
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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)
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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.
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* 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.
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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.
[The information referred to follows:]
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