[Senate Hearing 110-61]
[From the U.S. Government Publishing Office]


                                                         S. Hrg. 110-61
 
  PRESERVING PROSECUTORIAL INDEPENDENCE: IS THE DEPARTMENT OF JUSTICE 
         POLITICIZING THE HIRING AND FIRING OF U.S. ATTORNEYS?

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                            FEBRUARY 6, 2007

                               __________

                          Serial No. J-110-10

                               __________

         Printed for the use of the Committee on the Judiciary


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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware       ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin                 CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin       JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York         LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois          JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland         SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
            Bruce A. Cohen, Chief Counsel and Staff Director
      Michael O'Neill, Republican Chief Counsel and Staff Director










                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................     6
    prepared statement...........................................    64
Hatch, Hon. Orrin G., a U.S Senator from the State of Utah.......     6
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts, prepared statement..............................    79
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York...........................................................     1
    prepared statement...........................................    94
Specter, Hon. Arlen, a U.S. Senator from the state of New Yory...     4

                               WITNESSES

Gerson, Stuart M., Partner, Epstein, Becker & Green, Washington, 
  D.C............................................................    50
Levenson, Laurie L., Professor of Law, William M. Rains Fellow 
  and, Director, Loyola Center for Ethical Advocacy, Loyola Law 
  School, Los Angeles, California................................    47
McNulty, Paul J., Deputy Attorney General, Department of Justice, 
  Washington, D.C................................................    13
Pryor, Hon. Mark, a U.S. Senator from the State of Arkansas......     7
White, Mary Jo, Partner, Debevoise & Plimpton, LLP, New York, New 
  York...........................................................    45

                         QUESTIONS AND ANSWERS

Responses of Paul McNulty to questions submitted by Senators 
  Kennedy and Schumer............................................    57

                       SUBMISSIONS FOR THE RECORD

Gerson, Stuart M., Partner, Epstein, Becker & Green, Washington, 
  D.C., prepared statement.......................................    66
Levenson, Laurie L., Professor of Law, William M. Rains Fellow 
  and, Director, Loyola Center for Ethical Advocacy, Loyola Law 
  School, Los Angeles, California, prepared statement............    81
McNulty, Paul J., Deputy Attorney General, Department of Justice, 
  Washington, D.C., prepared statement...........................    86
White, Mary Jo, Partner, Debevoise & Plimpton, LLP, New York, New 
  York, prepared statement.......................................    99


  PRESERVING PROSECUTORIAL INDEPENDENCE: IS THE DEPARTMENT OF JUSTICE 
         POLITICIZING THE HIRING AND FIRING OF U.S. ATTORNEYS?

                              ----------                              


                       TUESDAY, FEBRUARY 6, 2007

                              United States Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, Pursuant to notice, at 9:37 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Charles E. 
Schumer, presiding.
    Present: Senators Schumer, Feinstein, Feingold, Cardin, 
Whitehouse, Specter, Hatch, Sessions, and Cornyn.

 OPENING STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR 
                   FROM THE STATE OF NEW YORK

    Senator Schumer. Good morning and welcome to the first 
hearing of our Administrative Law and Courts Subcommittee, and 
we--oh, this is a full Committee hearing, I am just informed. 
Power has already gone to his head.
    I am reminded of that old Woody Allen movie, remember? 
Anyway, we will save that for another time.
    Anyway, I will give an opening statement. Then Senator 
Specter will, and any others who wish to give opening 
statements are welcome to do so.
    Well, we are holding this hearing because many members of 
this Committee, including Chairman Leahy, who had hoped to be 
here but is speaking on the floor at this time, have become 
increasingly concerned about the administration of justice and 
the rule of law in this country.
    I have observed, with increasing alarm, how politicized the 
Department of Justice has become.
    I have watched, with growing worry, as the Department has 
increasingly based hiring on political affiliation, ignored the 
recommendations of career attorneys, focused on the promotion 
of political agendas, and failed to retain legions of talented 
career attorneys.
    I have sat on this Committee for 8 years and, before that, 
on the House Judiciary Committee for 16.
    During those combined 24 years of oversight over the 
Department of Justice--through seven presidential terms, 
including three Republican Presidents--I have never seen the 
Department more politicized and pushed further away from its 
mission as an apolitical enforcer of the rule of law.
    And now, it appears even the hiring and firing of our top 
Federal prosecutors has become infused and corrupted with 
political, rather than prudent, considerations. Or at least, 
there is a very strong appearance that this is so.
    For 6 years, there has been little or no oversight of the 
Department of Justice on matters like these. Those days are now 
over.
    There are many questions surrounding the firing of a slew 
of U.S. Attorneys. I am committed to getting to the bottom of 
those questions. If we do not get the documentary information 
that we seek, I will consider moving to subpoena that material, 
including performance evaluations and other documents.
    If we do not get forthright answers to our questions, I 
will consider moving to subpoena one or more of the fired U.S. 
Attorneys so that the record is clear.
    So, with that in mind, let me turn to the issue at the 
center of today's hearing. Once appointed, U.S. Attorneys, 
perhaps more than any other public servant, must be above 
politics and beyond reproach. They must be seen to enforce the 
rule of law without fear or favor. They have enormous 
discretionary power, and any doubt as to their impartiality and 
their duty to enforce the rule of law puts seeds of poison in 
our democracy.
    When politics unduly infects the appointment and removal of 
U.S. Attorneys, what happens? Cases suffer. Confidence 
plummets. And corruption has a chance to take root.
    And what has happened here over the last 7 weeks is nothing 
short of breathtaking.
    Less than 2 months ago, seven or more U.S. Attorneys 
reportedly received an unwelcome Christmas present. As the 
Washington Post reports, those top Federal prosecutors were 
called and terminated on the same day.
    The Attorney General and others have sought to deflect 
criticism by suggesting that these officials all had it coming 
because of poor performance, that U.S. Attorneys are routinely 
removed from office, and that this was only business as usual.
    But what happened here does not sound like an orderly and 
natural replacement of underperforming prosecutors; it sounds 
more like a purge.
    What happened here does not sound like business as usual; 
it appears more reminiscent of a different sort of Saturday 
Night Massacre.
    Here is what the record shows: Several U.S. Attorneys were 
apparently fired with no real explanation. Several were 
seemingly removed merely to make way for political up- and-
comers. One was fired in the midst of a successful and 
continuing investigation of lawmakers. Another was replaced 
with a pure partisan of limited prosecutorial experience, 
without Senate confirmation. And all of this, coincidentally, 
followed a legal change--slipped into the PATRIOT Act in the 
dead of night--which for the first time in our history gave the 
Attorney General the power to make indefinite interim 
appointments and to bypass the Senate altogether.
    We have heard from prominent attorneys--including many 
Republicans--who confirm that these actions are unprecedented, 
unnerving, and unnecessary. Let me quote a few.
    The former San Diego U.S. Attorney, Peter Nunez, who served 
under President Reagan, said, ``[This] is like nothing I've 
ever seen before in 35-plus years.'' He went on to say that 
while the President has the authority to fire a U.S. Attorney 
for any reason, it is ``extremely rare'' unless there is an 
allegation of misconduct.
    Another former U.S. Attorney and head of the National 
Association of Former U.S. Attorneys said members of his group 
were in ``shock'' over the purge, which ``goes against all 
tradition.''
    The Attorney General, for his part, has flatly denied that 
politics has played any part in the firings. At a Judiciary 
Committee hearing last month he testified that: ``I would 
never, ever make a change in a U.S. Attorney position for 
political reasons.''
    And yet, the recent purge of top Federal prosecutors reeks 
of politics. An honest look at the record reveals that 
something is rotten in Denmark.
    In Nevada, where U.S. Attorney Daniel Bogden was reportedly 
fired, a Republican source told the press that ``the decision 
to remove U.S. Attorneys...was part of a plan to `give somebody 
else that experience'''--this is a quote--``to build up the 
back bench of Republicans by giving them high-profile jobs.'' 
That was in the Las Vegas Review-Journal on January 18th.
    In New Mexico, where U.S. Attorney David Iglesias was 
reportedly fired, he has publicly stated that when he asked why 
he was asked to resign, he ``wasn't given any answers.''
    In San Diego, where U.S. Attorney Carol Lam was reportedly 
fired, the top-ranking FBI official in San Diego said: ``I 
guarantee politics is involved.'' And the former U.S. Attorney 
under President Reagan said, ``It really is outrageous.''
    Ms. Lam, of course, was in the midst of a sweeping public 
investigation of ``Duke'' Cunningham and his co-conspirators, 
and her office has outstanding subpoenas to three House 
committees.
    Was her firing a political retaliation? There is no way to 
know. But the Department of Justice should go out of its way to 
avoid even the appearance of impropriety. That is not too much 
to ask. And as I have said, the appearance here, given all the 
circumstances, is plain awful.
    Finally, in Arkansas, where U.S. Attorney Bud Cummins was 
forced out, there is not a scintilla of evidence that he had 
any blemish on his record. In fact, he was well respected on 
both sides of the aisle and was in the middle of a number of 
important investigations.
    His sin? Occupying a high-profile position that was being 
eyed by an ambitious acolyte of Karl Rove, who had minimal 
Federal prosecution experience, but was highly skilled at 
opposition research and partisan attacks for the Republican 
National Committee.
    Among other things, I look forward to hearing the Deputy 
Attorney General explain to us this morning how and why a well-
performing prosecutor in Arkansas was axed in favor of such a 
partisan warrior. What strings were pulled and what influence 
was brought to bear?
    In June of 2006, when Karl Rove himself was still being 
investigated by a U.S. Attorney, was he brazenly leading the 
charge to oust a sitting U.S. Attorney and install his own 
former aide? We do not know, but maybe we can find out.
    Now, I ask, is this really how we should be replacing U.S. 
Attorneys in the middle of a Presidential term?
    No one doubts the President has the legal authority to do 
it, but can this build confidence in the Justice Department? 
Can this build confidence in the administration of justice?
    [The prepared statement of Senator Schumer appears as a 
submission for the record.]
    I yield to my colleague from Pennsylvania.

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE 
                        OF PENNSYLVANIA

    Senator Specter. Thank you, Mr. Chairman.
    I concur with Senator Schumer that the prosecuting attorney 
is obligated to function in a nonpolitical way. The prosecuting 
attorney is a quasi-judicial official. He is part judge and 
part advocate, and the power of investigation and indictment 
and prosecution in criminal courts is a tremendous power. And I 
know it very well because I was the district attorney of a big, 
tough city for 8 years and an assistant district attorney for 4 
years before that. And the phrase in Philadelphia, perhaps 
generally, was that the district attorney has the keys to the 
jail in his pocket. Well, if you have the keys to the jail, 
that is a lot of power.
    But let us focus on the facts as opposed to 
generalizations, and I and my colleagues on the Republican side 
of the aisle will cooperate in finding the facts, if the facts 
are present. But let's be cautious about the generalizations, 
which we heard a great many of in the Chairman's opening 
remarks. If a U.S. Attorney was fired in retaliation for what 
was done in the prosecution of former Congressman Cunningham, 
that is wrong. And that is wrong even though the President has 
the power to terminate U.S. Attorneys. But the U.S. Attorneys 
cannot function if they are going to be afraid of the 
consequences of a vigorous prosecution.
    When Senator Schumer says that the provision was insert 
into the PATRIOT Act in the dead of night, he is wrong. That 
provision was in a conference report which was available for 
examination for some 3 months. The first I found out about the 
change in the PATRIOT Act occurred a few weeks ago when Senator 
Feinstein approached me on the floor and made a comment about 
two U.S. Attorneys who were replaced under the authority of the 
change in law in the PATRIOT Act which altered the way U.S. 
Attorneys are replaced. Prior to the PATRIOT Act, U.S. 
Attorneys were replaced by the Attorney General for 120 days 
and then appointments by the court, or the First Assistant 
succeeded to the position of U.S. Attorney. And the PATRIOT Act 
gave broader powers to the Attorney General to appoint 
replacement U.S. Attorneys.
    I then contacted my very able chief counsel, Michael 
O'Neill, to find out exactly what had happened, and Mr. O'Neill 
advised me that the requested change had come from the 
Department of Justice; that it had been handled by Brett 
Tolman, who is now the U.S. Attorney for Utah; and that the 
change had been requested by the Department of Justice because 
there had been difficulty with the replacement of a U.S. 
Attorney in South Dakota, where the court made a replacement 
which was not in accordance with the statute, had not been a 
prior Federal employee and did not qualify. And there was also 
concern because in a number of districts, the courts had 
questioned the propriety of their appointing power because of 
separation of powers. And as Mr. Tolman explained it to Mr. 
O'Neill, those were the reasons, and the provision was added to 
the PATRIOT Act and, as I say, was open for public inspection 
for more than 3 months while the conference report was not 
acted on.
    If you will recall, Senator Schumer came to the floor on 
December 16th, said he had been disposed to vote for the 
PATRIOT Act, but had changed his mind when the New York Times 
disclosed the secret wiretap program, electronic surveillance.
    May the record show that Senator Schumer is nodding in the 
affirmative. There is something we can agree on. In fact, we 
agree sometimes in addition. Well, the conference report was 
not acted on for months, and at that time this provision was 
subject to review.
    Now, I read in the newspaper that, ``The Chairman of the 
Judiciary Committee, Arlen Specter, slipped it in.'' And I take 
umbrage and offense to that. I did not slip it in, and I do not 
slip things in. That is not my practice. If there is some item 
which I have any idea is controversial, I tell everybody about 
it. That is what I do. So I found it offensive to have the 
report of my slipping it in, that is how it got into the bill.
    Now, I have talked about the matter with Senator Feinstein, 
and I do agree that we ought to change it back to where it was 
before. She and I, I think, will be able to agree in the 
executive session on Thursday. And let's be candid about it. 
The atmosphere in Washington, D.C., is one of high-level 
suspicion. There is a lot of suspicion about the executive 
branch because of what has happened with signing statements, 
because of what has happened with the surveillance program. And 
there is no doubt, because it has been explicitly articulated--
maybe ``articulate'' is a bad word these days--especially 
stated by ranking Department of Justice officials that they 
want to increase--executive branch officials that they want to 
increase executive power.
    So we live in an atmosphere of high-level suspicion, and I 
want to see this inquiry pursued on the items that Senator 
Schumer has mentioned. I do not want to see a hearing and then 
go on to other business. I want to see it pursued in each one 
of these cases and see what actually went on, because there are 
very serious accusations that are made, and if they are true, 
there ought to be very, very substantial action taken in our 
oversight function. And if they are false, then the accused 
ought to be exonerated.
    But the purpose of the hearing, which can be accomplished, 
I think, in short order, is to change the PATRIOT Act so that 
this item is not possible for abuse. And in that I concur with 
Senator Feinstein and Senator Leahy and Senator Schumer, and 
the pursuit of political use of the Department is something 
that I also will cooperate in eliminating, if, in fact, it is 
true.
    Thank you, Mr. Chairman.
    Senator Schumer. Thank you, Senator Specter.
    Senator Feingold?

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE 
                       STATE OF WISCONSIN

    Senator Feingold. Thank you, Mr. Chairman, for holding the 
hearing. I have to chair the Africa Subcommittee of the Foreign 
Relations Committee at 10 o'clock, and I was hoping to give an 
opening statement. But I am very pleased not only with your 
statement but, frankly, with Senator Specter's statement as 
well because it sounds to me like there is going to be a 
bipartisan effort to fix this. I also have strong feelings 
about what was done here, but it sounds like there is a genuine 
desire to resolve this. So in that spirit and in light of the 
fact that I have to go anyway, Mr. Chairman, I am just going to 
ask that my statement be put in the record.
    Senator Schumer. Without objection.
    [The prepared statement of Senator Feingold appears as a 
submission for the record.]
    Senator Schumer. Senator Hatch?

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE 
                            OF UTAH

    Senator Hatch. Thank you, Mr. Chairman. I appreciate it. I 
have appreciated both of your statements, too. I do not agree 
fully with either statement.
    First of all, the U.S. Attorneys serve at the pleasure of 
the President, whoever the President may be, whether it is a 
Democrat or Republican. You know, the Department of Justice has 
repeatedly and adamantly stated that U.S. Attorneys are never 
removed or encouraged to resign in an effort to retaliate 
against them or interfere with investigations. Now, this comes 
from a Department whose mission is to enforce the law and 
defend the interests of the United States. Now, are we supposed 
to believe and press their efforts when it comes to outstanding 
criminal cases and investigations which have made our country a 
safer place, but then claim that they are lying when they tell 
us about their commitment to appoint proper U.S. Attorneys? I 
personally believe that type of insinuation is completely 
reckless.
    Now, if, in fact, there has been untoward political effort 
here, then I would want to find it out just like Senators 
Schumer and Specter have indicated here. As has been said many 
times, U.S. Attorneys serve at the pleasure of the President. I 
remember when President Clinton became President. He dismissed 
93 U.S. Attorneys, if I recall it correctly, in 1 day. That was 
very upsetting to some of my colleagues on our side. But he had 
a right to do it. And, frankly, I do not think anybody should 
have said he did it purely for political reasons, although I do 
not think you can ever remove all politics from actions that 
the President takes.
    The President can remove them for any reason or no reason 
whatsoever. That is the law, and it is very clear. The U.S. 
Code says that, ``Each United States Attorney is subject to 
removal by the President.'' It does not say that the President 
has to give explanations. It does not say that the President 
has to get permission from Congress. And it does not say that 
the President needs to grant media interviews giving full 
analysis of his personal decisions. Perhaps critics should seek 
to amend the Federal Code and require these types of 
restrictions on the President's authority, but I would be 
against that.
    Finally, I want to point out that the legislation that we 
are talking about applies to whatever political party is in 
office. The law does not say that George Bush is the only 
President who can remove U.S. Attorneys. And the law does not 
say that Attorney Generals appointed by a Republican President 
have interim appointment authority. The statutes apply to 
whoever is in office, no matter what political party.
    Now, I remember with regard to interim U.S. Attorneys that 
an interim appointed during the Clinton served for 8 years in 
Puerto Rico and was not removed.
    Now, you know, I for one do not want judges appointing U.S. 
Attorneys before whom they have to appear. That is why we have 
the executive branch of Government.
    Now, I will be interested if there is any evidence that 
impropriety has occurred or that politics has caused the 
removal of otherwise decent, honorable people. And I am talking 
about pure politics because, let's face it, whoever is 
President certainly is going to be--at least so far, either a 
Democrat or a Republican in these later years of our Republic.
    So these are important issues that are being raised here, 
but as I understand it, we are talking about seven to nine U.S. 
Attorneys, some of whom--we will just have to see what people 
will have to say about it. But I am going to be very interested 
in the comments of everybody here today. It should be a very, 
very interesting hearing, but I would caution people to reserve 
your judgment. If there is an untoward impropriety, by gosh, we 
should come down very hard against it. But this is not abnormal 
for Presidents to remove U.S. Attorneys and replace them with 
interims. And there are all kinds of problems, even with that 
system as it has worked, because sometimes we in the Judiciary 
Committee do not move to confirmations like we should as well 
either.
    So there are lots of things that you could find faults 
with, but let's be very, very careful before we start dumping 
this in the hands of Federal judges, most of whom I really 
admire regardless of their prior political beliefs.
    Thank you, Mr. Chairman.
    Senator Schumer. Thank you, Senator Hatch.
    Senator Cardin had to leave. Senator Whitehouse, do you 
want to make an opening statement? No? Okay. Thank you for 
coming.
    Our first witness--and I know he has a tight schedule; I 
appreciate him being here--this time is our hard-working friend 
from Arkansas, Senator Mark Pryor. Senator Pryor?

STATEMENT OF HON. MARK L. PRYOR, A U.S. SENATOR FROM THE STATE 
                          OF ARKANSAS

    Senator Pryor. Mr. Chairman, thank you, and I also want to 
thank all the members of the Committee. I have come here today 
to talk about events that occurred regarding the appointment of 
the Interim U.S. Attorney for the Eastern District of Arkansas, 
which I believe raise serious--
    Senator Schumer. Senator, If you could just pull the mike a 
little closer.
    Senator Pryor. I believe raise serious concerns over the 
administration's encroachment on the Senate's constitutional 
responsibilities. I am not only concerned about this matter as 
a Member of the Senate, but as a former practicing lawyer in 
Arkansas and former Attorney General of my State, I know the 
Arkansas Bar well, and all appointments that impact the legal 
and judicial arena in Arkansas are especially important to me.
    Moreover, due to the events of the past Congress, I have 
given much thought as to what my role as a Senator should be 
regarding executive and judicial nominations. I believe the 
confirmation is as serious as anything that we do in 
Government.
    You know my record. I have supported almost all of the 
President's nominations. On occasion, I have felt they were 
unfairly criticized for political purposes, for when I consider 
a nominee, I use a three-part test: First, is the nominee 
qualified? Second, does the nominee possess the proper 
temperament? Third, will the nominee be fair and impartial? In 
other words, can they check their political views at the door?
    Executive branch nominees are different from judicial 
nominees in many ways, but U.S. Attorneys should be held to a 
high standard of independence. In other words, they are not 
inferior officers, as defined by the U.S. Supreme Court. All 
U.S. Attorneys must pursue justice. Wherever a case takes them, 
they should protect our Republic by seeing that justice is 
done. Politics has no place in the pursuit of justice.
    This was my motivation in helping form the Gang of 14. I 
have tried very hard to be objective in my dealings with the 
President's nominations, including his nominations to the U.S. 
Supreme Court. I want the process to work in the best 
traditions of the Senate and in the best traditions of our 
democracy. In fact, I have been accused on more than one 
occasion of being overly fair to the President's nominations.
    It is with this background that I state my belief that 
recent events relating to U.S. Attorney dismissals and 
replacements are unacceptable and should be unacceptable to all 
of us.
    Now I would like to speak specifically about the facts that 
occurred regarding the U.S. Attorney replacement for the 
Eastern District of Arkansas.
    In the summer of 2006, my office was told by reliable 
sources in the Arkansas legal and political community that 
then-U.S. Attorney Bud Cummins was resigning and the White 
House would nominate Mr. Tim Griffin as his replacement. I 
asked the reasons for Mr. Cummins's leaving and was informed 
that he was doing so to pursue other opportunities.
    My office was later told by the administration that he was 
leaving on his own initiative and that Mr. Tim Griffin would be 
nominated. I did not know Mr. Griffin, but I spoke to him by 
telephone in August 2006 about his potential nomination. I told 
him that I know many lawyers in the State, but I knew very 
little about his legal background. In other words, I did not 
know if he was qualified or if he had the right temperament or 
if he could be fair and impartial. I informed him that I would 
have trouble supporting him until the Judiciary Committee had 
reviewed these issues. I told him if he were to be nominated 
that I would evaluate my concerns in light of the Committee 
process.
    It should be noted that around this time it was becoming 
clear that Mr. Cummins was being forced out, contrary to what 
my office had been told by the administration.
    Some time after the interview with Mr. Griffin, I learned 
that there were newspaper accounts regarding his work on behalf 
of the Republican National Committee about efforts that have 
been categorized as ``caging African-American votes.'' This 
arises from allegations that Mr. Griffin and others in the RNC 
were targeting African-Americans in Florida for voter 
challenges during the 2004 Presidential campaign.
    I specifically addressed this issue to Mr. Griffin in a 
subsequent meeting. When I questioned him about this, he 
provided an account that was very different from the 
allegation. However, I informed him that due to the seriousness 
of the issue, this is precisely the reason why the nomination 
and confirmation process is in place. I told him I would not be 
comfortable until this Committee had thoroughly examined his 
background. Given my concerns over this potential nominee, I, 
as well as others, protested and Mr. Cummins was allowed to 
stay until the end of the year.
    Rumors began to circulate in October of 2006 that the White 
House was going to make a recess appointment, which, of course, 
I found troubling. This rumor was persistent in the Arkansas 
legal and political community.
    I called the White House on December 13, 2006, to express 
my concerns about a recess appointment and spoke to then-White 
House Counsel Harriet Miers. She told me that she would get 
back to me on this matter. I also called Attorney General 
Gonzales expressing my reservations, and he informed me that he 
would get back to me as well.
    Despite expressing my concerns about a recess appointment 
to the White House and to the Attorney General, 2 days later, 
on December 15, 2006, Ms. Miers informed me that Mr. Griffin 
was their choice. Also on that same day, General Gonzales 
confirmed that he was going to appoint Mr. Griffin as an 
interim U.S. Attorney. Subsequently, my office inquired about 
the legal authority for the appointment and was informed it was 
pursuant to the amended statute in the PATRIOT Act.
    Before I say any more, I need to tell the Committee that I 
respect and like General Gonzales. I supported his confirmation 
to be Attorney General. I have always found him to be a 
straight shooter. And even though I disagree with him on this 
decision, it has not changed my view of him. I suspect he is 
only doing what he has been told to do.
    On December 20, 2006, Mr. Cummins's tenure as U.S. Attorney 
was over. On that same day, Mr. Griffin was appointed Interim 
U.S. Attorney for the Eastern District of Arkansas. The timing 
was controlled by the administration.
    On January 11, 2007, I wrote a letter to General Gonzales 
outlining my objections with regard to this appointment. First, 
I made clear my concern as to how Mr. Cummins was summarily 
dismissed. Second, I outlined my amazement as to the excuse 
given as the reason for the interim appointment, which was due 
to the First Assistant being on maternity leave. Third, I 
objected to the circumventing of the Senate confirmation 
process. The Attorney General's office responded on January 31, 
2007, denying any discrimination or wrongdoing. I will address 
these issues now.
    As more light was shed on the situation in Arkansas, it 
became clear that Bud Cummins was asked to resign without cause 
so that the White House could reward the Arkansas post to Mr. 
Griffin. Mr. Cummins confirmed this on January 13, 2007, in an 
article in the Arkansas Democrat Gazette newspaper wherein he 
said he had been asked to step down so that the White House 
could appoint another person. By all accounts, Mr. Cummins's 
performance has been fair, balanced, professional, and just. 
Lawyers on both sides of the political spectrum have nothing 
but positive things to say about Mr. Cummins's performance.
    During his tenure, he established a highly successful Anti-
Terrorism Advisory Council that brought together law 
enforcement at all levels for terrorism training. In the area 
of drug prosecutions, he continued the historic levels of 
quality, complex, and significant Organized Crime, Drug 
Enforcement Task Force drug prosecutions. He also increased 
Federal firearm prosecutions, pursued public corruption and 
cyber crime investigations that led to lengthy prison sentences 
for those convicted.
    In addition, I understand that his performance evaluations 
were always exceptional. On this last point, I would ask the 
Committee to try to gather the service evaluations of Mr. 
Cummins and the other dismissed U.S. Attorneys to determine how 
they were perceived by the Justice Department as having 
performed their jobs.
    The reason I am reciting Mr. Cummins's performance record 
is that it stands in stark contrast to General Gonzales' 
testimony before this Committee when he stated, ``Some people 
should view it as a sign of good management. What we do is make 
an evaluation about the performance of individuals, and I have 
responsibility to the people in your districts that we have the 
best possible people in these positions. And that is the reason 
why changes sometimes have to be made. Although there are a 
number of reasons why changes get made and why people leave on 
their own, I think I would never, ever make a change in a 
United States Attorney position for political reasons or if it 
would in any way jeopardize an ongoing, serious investigation. 
I just would not do it.''
    The Attorney General then refused to say why Mr. Cummins 
was told to leave; however, it is my understanding that in 
other cases around the country, Justice Department officials 
have disclosed their reasoning for firing other U.S. Attorneys. 
The failure to acknowledge that Bud Cummins was told to leave 
for a purely political reason is a great disservice to someone 
who has been loyal to the administration and who performed his 
work admirably.
    I have discussed in detail the events surrounding Mr. 
Cummins's dismissal. Now I would like to discuss the very 
troubling pretense for Mr. Griffin's appointment to Interim 
U.S. Attorney over the First Assistant U.S. Attorney in the 
Little Rock office.
    The Justice Department advised me that normally the First 
Assistant U.S. Attorney is selected for the acting appointment 
while the White House sends their nominee through the Senate 
confirmation process. This is based on 5 U.S.C. Section 
3345(a)(1). However, in this case, the Justice Department 
confirmed that the First Assistant was passed over because she 
was on maternity leave. This was the reason given to my chief 
of staff as well as comments by the Justice Department 
spokesman Brian Roehrkasse--and I am not sure if I pronounced 
that name correctly--wherein he was quoted in newspapers as 
saying, ``When the U.S. Attorney resigns, there is a need for 
someone to fill that position.'' He noted that, ``Often the 
First Assistant U.S. Attorney in the affected district will 
serve as the Acting U.S. Attorney until the formal nomination 
process begins for a replacement. But in this case, the First 
Assistant is on maternity leave.'' That is what he said.
    In addition, this reason was given to me specifically by a 
Justice Department liaison in a meeting in my office. In my 
letter to the Attorney General, I stated that while this may or 
may not be actionable in a public employment setting, it 
clearly would be in a private employment setting. Of all the 
agencies in the Federal Government, the Justice Department 
should not hold this view of pregnancy and motherhood in the 
workplace. I call this a pretense because it has become clear 
that Mr. Griffin was always the choice to replace Mr. Cummins.
    Before I close, let me address the circumvention of the 
Senate's confirmation process. General Gonzales has said that 
it is his intention to nominate all U.S. Attorneys, but that 
does not hold water in Arkansas. For 7 months now, the 
administration has known of the departure of Mr. Cummins. 
Remember, they created his departure. It has now been 49 days 
since Bud Cummins was ousted without cause. If they were 
serious about the confirmation process, I cannot believe that 
it would have taken so long to nominate someone.
    Now, to be fair, in my most recent telephone call with 
General Gonzales, he asked me whether I would support Tim 
Griffin as my nominee for this position. I have thought long 
and hard about this, and the answer is I cannot. If nominated, 
I would do everything I could to make sure he has an 
opportunity to tell his side of the story regarding all 
allegations and concerns to the Committee, and I would ask the 
Committee to give Mr. Griffin a vote as quickly as possible. It 
is impossible for me to say that I would never support his 
nomination because I do not know all the facts. That is why we 
have a process in the Senate.
    I know I would never consider him as my nominee because I 
just know too many other lawyers who are more qualified, more 
experienced, and more respected by the Arkansas Bar. I will 
advise General Gonzales about this decision shortly.
    Regardless of the situation in Arkansas, I am convinced 
that this should not happen again. I am also convinced that the 
administration and maybe future administrations will try to 
bypass the Senate unless we change this law. I do not say this 
lightly. Already, a challenge has been made to the appointment 
of Mr. Griffin in Arkansas as violating the U.S. Constitution 
because it bypassed Senate confirmation. While I have not 
reviewed the pleadings filed in this case--I believe it is a 
capital murder case. I do not know all the situation there. 
While I have not reviewed the pleadings there, I have read a 
recent article in the Arkansas Democrat Gazette that concerns 
me. It is reported that, ``Because United States Attorneys are 
inferior officers, the Appointments Clause of the Constitution 
expressly permits Congress to vest their appointments in the 
Attorney General and does not require the advice and consent of 
the Senate before they are appointed.''
    Please do not miss this point. The Justice Department has 
now pleaded in court that U.S. Attorneys as a matter of 
constitutional law are not subject to the advice and consent of 
the United States Senate.
    After a thorough review by this Committee, I hope that you 
will reach the same conclusion I have, which is this: No 
administration should be able to appoint U.S. Attorneys without 
proper checks and balances. This is larger than party 
affiliation or any single appointment. This touches our solemn 
responsibility as Senators.
    I hope this Committee will address it by voting for S. 214, 
which I join in offering along with Senators Feinstein and 
Leahy.
    Thank you, Mr. Chairman.
    Senator Schumer. Thank you very much, Senator Pryor, for 
your really outstanding testimony, and we will pursue many of 
the things you bring up.
    I know that you have a busy schedule, and I would ask the 
indulgence of the Committee that if we have questions of 
Senator Pryor, we submit them in writing. Would that be okay?
    Senator Specter. Well, Mr. Chairman, may I just ask one or 
two questions?
    Senator Pryor. Sure.
    Senator Schumer. Thank you.
    Senator Specter. Senator Pryor, do you think that Mr. 
Griffin is not qualified for the job?
    Senator Pryor. It is hard for me to say whether he is or 
isn't because I just know so little about his background. When 
I met with him, we talked about this, and I told him that it 
was my sincere hope that they nominate him so he could go 
through the process here. But it is impossible for me to say 
whether he is or is not because I know so little about him.
    And just by way of background on him--and this is probably 
more detail than the Committee wants--he went to college in 
Arkansas and then he went off to Tulane Law School in 
Louisiana, and then more or less he did not come back to the 
State. I think he did maybe a year of practice in the U.S. 
Attorney's Office at some point. But basically his professional 
life has been mostly outside the State. So he has come back in, 
and the legal community just does not know him.
    Senator Specter. Well, fair enough. You think it ought to 
be a matter for the Committee. I think that is the traditional 
way.
    Senator Pryor. Certainly.
    Senator Specter. Did you think that his having worked for 
the Republican National Committee, RNC, or that he may be a 
protege of Karl Rove is relevant in any way as to his 
qualifications?
    Senator Pryor. To me it is not relevant. I think we call 
come to these various positions with different backgrounds, and 
certainly if someone works for a political committee or a 
politician or an administration, that does not concern me. Some 
of the activities that he may have been involved in do raise 
concerns. However, when I talked to him about that, he offered 
an explanation, like I said, that was very different than the 
press accounts of what he did. And here, again, that takes me 
back to the process. That is why we have a process. Let him go 
through the Committee. Let you all and your staffs look at it. 
Let everybody evaluate that and see what the true facts are.
    Senator Specter. Well, fair enough. The activities may 
bear, his conduct bears on his qualifications, but just the 
fact of working for the Republican National Committee and for 
Karl Rove is not a disqualifier.
    Senator Pryor. Not in my mind it is not.
    Senator Specter. Thank you very much for coming in.
    Senator Pryor. We know how busy you are, and you have made 
a very comprehensive analysis, and it is very helpful to have a 
Senator appear substantively. So thank you.
    Senator Pryor. Thank you.
    Senator Schumer. Thank you, Senator Pryor.
    Any further questions?
    [No response.]
    Senator Schumer. Thank you so much.
    Okay. Our next witness is the Honorable Paul J. McNulty. He 
is the Deputy Attorney General of the United States. He has 
spent almost his entire career as a public servant with more 
than two decades of experience in government at both the State 
and Federal levels. Just personally, Paul and I have known each 
other. When he served in the House, I knew him well. We worked 
together on the House Judiciary Committee. He is a man of great 
integrity. I have a great deal of faith in him and his 
personality and who he is and what he does. From 2001 to 2006, 
of course, he served as U.S. Attorney for the Eastern District 
of Virginia.
    And now would you please stand, Deputy Attorney General 
McNulty, so that I may administer the oath of office? Do you 
swear that the testimony you are about to give before the 
Committee will be the truth, the whole truth, and nothing but 
the truth, so help you God?
    Mr. McNulty. I do.
    Senator Schumer. Thank you. You may proceed with your 
statement.

    STATEMENT OF PAUL J. MCNULTY, DEPUTY ATTORNEY GENERAL, 
            DEPARTMENT OF JUSTICE, WASHINGTON, D.C.

    Mr. McNulty. Thank you, Mr. Chairman. Thank you for your 
kindness. I appreciate the opportunity to be here this morning 
and attempt to clear up the misunderstandings and 
misperceptions about the recent resignations of some U.S. 
Attorneys and to testify in strong opposition to S. 214, a bill 
which would strip the Attorney General of the authority to make 
interim appointments to fill vacant U.S. Attorney positions.
    As you know and as you have said, Mr. Chairman, I had the 
privilege of serving as United States Attorney for 4-1/2 years. 
It was the best job I ever had. That is something you hear a 
lot from former United States Attorneys: ``Best job I ever 
had.'' In my case, Mr. Chairman, it was even better than 
serving as counsel under your leadership with the Subcommittee 
on Crime.
    Now, why is it being U.S. Attorney the best job? Why is it 
such a great job? There are a variety of reasons, but I think 
it boils down to this: The United States Attorneys are the 
President's chief legal representatives in the 94 Federal 
judicial district. In my former District of Eastern Virginia, 
Supreme Court Chief Justice John Marshall was the first United 
States Attorney. Being the President's chief legal 
representative means you are the face of the Department of 
Justice in your district. Every police chief you support, every 
victim you comfort, every citizen you inspire or encourage, 
and, yes, every criminal who is prosecuted in your name 
communicates to all of these people something significant about 
the priorities and values of both the President and the 
Attorney General.
    At his Inauguration, the President raises his right hand 
and solemnly swears to faithfully execute the Office of the 
President of the United States. He fulfills this promise in no 
small measure through the men and women he appoints as United 
States Attorneys.
    If the President and the Attorney General want to crack 
down on gun crimes, if they want to go after child 
pornographers and pedophiles, as this President and Attorney 
General have ordered Federal prosecutors to do, it is the 
United States Attorneys who have the privilege of making such 
priorities a reality. That is why it is the best job a lawyer 
can ever have. It is an incredible honor.
    And this is why, Mr. Chairman, judges should not appoint 
United States Attorneys, as S. 214 proposes. What could be 
clearer executive branch responsibilities than the Attorney 
General's authority to temporary appoint and the President's 
opportunity to nominate for Senate confirmation those who will 
execute the President's duties of office? S. 214 does not even 
allow the Attorney General to make any interim appointments, 
contrary to the law prior to the most recent amendment.
    The indisputable fact is that United States Attorneys serve 
at the pleasure of the President. They come and they go for 
lots of reasons. Of the United States Attorneys in my class at 
the beginning of this administration, more than half are now 
gone. Turnover is not unusual, and it rarely causes a problem, 
because even though the job of United States Attorney is 
extremely important, the greatest assets of any successful 
United States Attorney are the career men and women who serve 
as Assistant United States Attorneys: victim/witness 
coordinators, paralegals, legal assistants, and administrative 
personnel. Their experience and professionalism ensures smooth 
continuity as the job of U.S. Attorney transitions from one 
person to another.
    Mr. Chairman, I conclude with these three promises to this 
Committee and the American people on behalf of the Attorney 
General and myself.
    First, we never have and never will seek to remove a United 
States Attorney to interfere with an ongoing investigation or 
prosecution or in retaliation for a prosecution. Such an act is 
contrary to the most basic values of our system of justice, the 
proud legacy of the Department of Justice, and our integrity as 
public servants.
    Second, in every single case where a United States Attorney 
position is vacant, the administration is committed to filling 
that position with a United States Attorney who is confirmed by 
the Senate. The Attorney General's appointment authority has 
not and will not be used to circumvent the confirmation 
process. All accusations in this regard are contrary to the 
clear factual record. The statistics are laid out in my written 
statement.
    And, third, through temporary appointments and nominations 
for Senate confirmation, the administration will continue to 
fill U.S. Attorney vacancies with men and women who are well 
qualified to assume the important duties of this office.
    Mr. Chairman, if I thought the concerns you outlined in 
your opening statement were true, I would be disturbed, too. 
But these concerns are not based on facts, and the selection 
process we will discuss today I think will shed a great deal of 
light on that.
    Finally, I have a lot of respect for you, Mr. Chairman, as 
you know. And when I hear you talk about the politicizing of 
the Department of Justice, it is like a knife in my heart. The 
AG and I love the Department, and it is an honor to serve. And 
we love its mission. And your perspective is completely 
contrary to my daily experience, and I would love the 
opportunity, not just today but in the weeks and months ahead, 
to dispel you of the opinion that you hold.
    I appreciate your friendship and courtesy, and I am happy 
to respond to the Committee's questions.
    [The prepared statement of Mr. McNulty appears as a 
submission for the record.]
    Senator Schumer. Well, thank you, Deputy Attorney General. 
I very much appreciate your heartfelt comments. I can just tell 
you--and it is certainly not just me, but speaking for myself--
what I have seen happen in the Justice Department is a knife to 
my heart as somebody who has followed and overseen the Justice 
Department for many, many years. And perhaps there are other 
explanations, but on issue after issue after issue after 
issue--I think Senator Specter alluded to it to some extent--
the view that executive authority is paramount, to the extent 
that many of us feel congressional prerogatives written in law 
are either ignored or ways are found around them, I have never 
seen anything like it. And there are many fine public servants 
in the Justice Department. I had great respect for your 
predecessor, Mr. Comey. I have great respect for you. But you 
have to judge the performance of the Justice Department by what 
it does, not the quality of or how much you like the people in 
it.
    And so my comment is not directed at you in particular, but 
it is directed at a Justice Department that seems to me to be 
far more politically harnessed than previous Justice 
Departments, whether they be under Democratic or Republican 
administrations.
    There are a lot of questions, but I know some of my 
colleagues--I know my colleague from Rhode Island wants to ask 
questions and has other places to go, so I am going to limit 
the first round to 5 minutes for each of us. And then in the 
second round, we will go to more unlimited time, if it is just 
reasonable, if that is okay with you, Mr. Chairman. Okay.
    First, you say in your testimony that a United States 
Attorney may be removed for any reason or no reason. So my 
first question is: Do you believe that U.S. Attorneys can be 
fired on simply a whim, somehow the President or the Attorney 
General wakes up one morning and says, ``Hmm, I don't like him, 
let's fire him'' ? What's the reason? ``I just don't like 
him.'' Would that be okay?
    Mr. McNulty. Well, Mr. Chairman--
    Senator Schumer. Well, let me say, is that legally allowed?
    Mr. McNulty. Well, if we are using just a very narrow 
question of can in a legal sense, I think the law is clear that 
``serving at the pleasure'' would mean that there needs to be 
no specific basis.
    Senator Schumer. Right. But I think you would agree that 
that would not be a good idea.
    Mr. McNulty. I would agree.
    Senator Schumer. Okay. Now, let me ask you this: You do 
agree that a United States Attorney cannot be removed for a 
discriminatory reason, because that person is a woman or black 
or--you would agree with that.
    Mr. McNulty. Sure.
    Senator Schumer. So there are some limits here.
    Mr. McNulty. Well, of course, and there would certainly be 
moral limits, and I don't know the law in the area of removal 
as it relates to those special categories. But I certainly know 
that isn't an appropriate thing to do. It would be completely 
inappropriate.
    Senator Schumer. Okay. And you do believe, of course, that 
a U.S. Attorney could be removed for a corrupt reason in return 
for a bribe or a favor.
    Mr. McNulty. Right.
    Senator Schumer. Okay. Now, let me ask you this: Do you 
think it is good for public confidence and respect of the 
Justice Department for the President to exercise his power to 
remove a U.S. Attorney simply to give somebody else a chance at 
the job? Let's just assume for the sake of argument that that 
is the reason. Mr. X, you are doing a very, very fine job, and 
you are in the middle of your term. No one objects to what you 
have done, but we prefer that Mr. Y take over. Would that be a 
good idea? Would that practice be wise?
    Mr. McNulty. I think that if it was done on a large scale, 
it could raise substantial issues and concerns. But I don't 
have the same perhaps alarms that you might have about whether 
or not that is a bad practice.
    If at the end of the first 4-year term--and, of course, all 
of our confirmation certificates say that we serve for a 4-year 
term. At the end of that 4-year term, if there was an effort to 
identify and nominate new individuals to step in, to take on 
the second term, for example, I am not so sure that would be 
contrary to the best interests of the Department of Justice. It 
is not something that has been done. It is not something that 
is being contemplated to do. But the turnover has already been 
essentially like that. We have already switched out more than 
half of the U.S. Attorneys that served in the first term. So 
change is not something that slows down or debilitates the work 
of the Department of Justice.
    Senator Schumer. Right. And all of these--these seven that 
we are talking about--they had completed their 4-year terms, 
every one of them, but then had been in some length of holdover 
period. They were not all told immediately at the end or right 
before the end of their 4-year term to leave. Is that right?
    Mr. McNulty. That is correct.
    Senator Schumer. Okay. I still have a few minutes left, but 
I now have a whole new round of questioning, and I do not want 
to break it in the middle. So I am going to call on Senator 
Specter for his 5 minutes.
    Senator Specter. Thank you, Mr. Chairman.
    Mr. McNulty, were you ever an Assistant U.S. Attorney?
    Mr. McNulty. No, I wasn't.
    Senator Specter. Well, I was interested in your comment 
that the best job you have had was U.S. Attorney, and that is 
probably because you were never an Assistant U.S. Attorney, 
because I was an assistant district attorney, and that is a 
much better job than district attorney.
    Mr. McNulty. I have heard that from a lot of assistants. 
That is true.
    Senator Specter. The assistant just gets to go into court 
and try cases and cross-examine witnesses and talk to juries 
and have a much higher level sport than administrators who are 
U.S. Attorneys or district attorneys.
    Mr. McNulty, what about Carol Lam? I think we ought to get 
specific with the accusations that are made. Why was she 
terminated?
    Mr. McNulty. Senator, I came here today to be as 
forthcoming as I possibly can, and I will continue to work with 
the Committee to provide information. But one thing that I do 
not want to do is, in a public setting, as the Attorney General 
declined to do, to discuss specific issues regarding people. I 
think that it is unfair to individuals to have a discussion 
like that in this setting in a public way, and I just have to 
respectfully decline going into specific reasons about any 
individual.
    Senator Specter. Well, Mr. McNulty, I can understand your 
reluctance to do so, but when we have confirmation hearings, 
which is the converse of inquiries into termination, we go into 
very difficult matters.
    Now, maybe somebody who is up for confirmation has more of 
an expectation of having critical comments made than someone 
who is terminated. And I am not going to press you as to a 
public matter, but I think the Committee needs to know why she 
was terminated. And if we can both find that out and have 
sufficient public assurance that the termination was justified, 
I am delighted--I am willing to do it that way.
    I am not sure that these attorneys who were terminated 
would not prefer to have it in a public setting. But we have 
the same thing as to Mr. Cummins, and we have the same thing as 
to going into the qualifications of the people you have 
appointed. But to find out whether or not what Senator Schumer 
has had to say is right or wrong, we need to be specific.
    Mr. McNulty. Could I make two comments?
    First, on the question of the confirmation process, if you 
want to talk about me--and I am here to have an opportunity to 
respond to everything I have ever done--that is one thing. I 
just am reluctant to talk about somebody who is not here and 
who has the right to respond, and I don't--I just don't want to 
unfairly--
    Senator Specter. But, Mr. McNulty, we are talking about you 
when we ask the question about why did you fire X or why did 
you fire Y. We are talking about what you did.
    Mr. McNulty. And I will try to work with the Committee to 
give them as much information as possible. But I also want to 
say something else: Essentially we are here to stipulate to the 
fact that if the Committee is seeking information, our position 
basically is that there is going to be a range of reasons and 
we don't believe that we have an obligation to set forth a 
certain standard or reason or cause when it comes to removal.
    Senator Specter. Are you saying that aside from not wanting 
to have comments about these individuals in a public setting--
which, again, I say I am not pressing--that the Department of 
Justice is taking the position that you will not tell the 
Committee in our oversight capacity why you terminated these 
people?
    Mr. McNulty. No, I am not saying that. I am saying 
something a little more complicated than that. What I am saying 
is that in searching through any document you might seek from 
the Department, such as every 3 years we do an evaluation of an 
office--those are called EARs reports. You may or may not see 
in an EAR report what would be concerned to a leadership of a 
department because that is just one way of measuring someone's 
performance. And much of this is subjective and will not be 
apparent in the form of some report that was done 2 or 3 years 
ago by a group of individuals that looked at an office.
    Senator Specter. Well, my time is up, but we are going to 
go beyond reports. We are going to go to what the reasons were.
    Mr. McNulty. Sure.
    Senator Specter. Subjective reasons are understandable.
    Mr. McNulty. I understand. I just--
    Senator Specter. I like to observe that red signal. But you 
do not have to. You are the witness. Go ahead.
    Mr. McNulty. The Senator opened, the Chairman opened with a 
reference to documentation, and I just wanted to make it clear 
that there really may or may not be documentation as you think 
of it because there aren't objective standards necessary in 
these matters when it comes to managing the Department and 
thinking through what is best for the future of the Department 
in terms of leadership of offices. In some places we may have 
some information that you can read. In others, we will have to 
just explain our thinking.
    Senator Specter. We can understand oral testimony and 
subjective evaluations.
    Mr. McNulty. Thank you, Senator.
    Senator Specter. We do not function solely on documents.
    Senator Schumer. Especially those of us who have been 
assistant district attorneys.
    Senator Specter. That is the standard, Mr. McNulty so your 
qualifications are being challenged here. You have not been an 
Assistant U.S. Attorney.
    Senator Schumer. The Senator from Rhode Island.
    Senator Whitehouse. Thank you, Mr. Chairman.
    Mr. McNulty, welcome. You are clearly a very wonderful and 
impressive man, but it strikes me that your suggestions that 
there is a clear, factual record about what happened and that 
this was just turnover are both just plain wrong.
    I start from the clear, factual record. The suggestion has 
been made to the Washington Post and the Attorney General also 
made the same suggestion to us that--and I am quoting from the 
Post article on Sunday--``Each of the recently dismissed 
prosecutors had performance problems''--which does not jibe 
with the statement of Mr. Cummins from Arkansas that he was 
told there was nothing wrong with his performance, that 
officials in Washington wanted to give the job to another GOP 
loyalist.
    So right from the very get-go we start with something that 
is clearly not a clear, factual record of what took place. In 
fact, on the very basic question of what the motivation was, we 
are getting two very distinct and irreconcilable stories. If it 
is true that, as the Washington Post reported, six of the 
prosecutors received calls notifying them of their firings on a 
single day, the suggestion that this is just ordinary turnover 
does not seem to pass the laugh test, really.
    Could you respond to those two observations?
    Mr. McNulty. Yes, sir. Thank you. Senator, first of all, 
with regard to Arkansas and what happened there and any other 
efforts to seek the resignation of U.S. Attorneys, these have 
been lumped together, but they really ought not to be. And we 
will talk about the Arkansas situation, as Senator Pryor has 
laid it out, and the fact is that there was a change made there 
that was not connected, as was said, to the performance of the 
incumbent, but more related to the opportunity to provide a 
fresh start with a new person in that position.
    With regard to the other positions, however--
    Senator Whitehouse. But why would you need a fresh start if 
the first person was doing a perfectly good job?
    Mr. McNulty. Well, again, in the discretion of the 
Department, individuals in the position of U.S. Attorneys serve 
at the pleasure of the President, and because turnover--and 
that is the only of going to your second question. I was 
referring to turnover. Because turnover is a common thing in 
U.S. Attorney's Offices--
    Senator Whitehouse. I know. I turned over myself as a U.S. 
Attorney.
    Mr. McNulty. Bringing in someone does not create a 
disruption that is going to be hazardous to the office, and it 
does, again, provide some benefits. In the case of Arkansas, 
which this is really what we are talking about, the individual 
who was brought in had significant prosecution experience. He 
actually had more experience than Mr. Cummins did when he 
started the job. And so there was every reason to believe that 
he could be a good interim until his nomination or someone else 
who is nominated for that position went forward and there was a 
confirmed person in the job.
    Senator Whitehouse. Mr. McNulty, what value does it bring 
to the U.S. Attorney's Office in Arkansas to have the incoming 
U.S. Attorney have served as an aide to Karl Rove and to have 
served on the Republican National Committee?
    Mr. McNulty. Well, all experience is--
    Senator Whitehouse. Has he learned anything useful there to 
being a U.S. Attorney?
    Mr. McNulty. I don't know. All I know is that a lot of U.S. 
Attorneys have political backgrounds. Mr. Cummins ran for 
Congress as a Republican candidate. Mr. Cummins served in the 
Bush-Cheney campaign. I don't know if those experiences were 
useful for him to be a successful U.S. Attorney, because he 
was. I think a lot of U.S. Attorneys bring political experience 
to the job. It might help them in some intangible way.
    But in the case of Mr. Griffin, he actually was in that 
district for a period of time serving as an Assistant United 
States Attorney, started their gun enforcement program, did 
many cases as a JAG prosecutor, went to Iraq, served this 
country there, and came back.
    So there are lot of things about him that make him a 
credible and well-qualified person to be a U.S. Attorney.
    Senator Whitehouse. Having run public corruption cases and 
having firsthand experience of how difficult it is to get 
people to be willing to come in and testify and come forward, 
it is not an easy thing to do. You put your career, you put 
your relationships, everything on the line to come in and be a 
witness. If somebody in Arkansas were a witness to Republican 
political corruption, do you think it would have any effect on 
their willingness to come forward to have the new U.S. Attorney 
be somebody who assisted Karl Rove and worked for the 
Republican National Committee? Do you think it would give any 
reasonable hesitation or cause for concern on their part that 
maybe they should just keep this one to themselves until the 
air cleared?
    Mr. McNulty. Well, again, U.S. Attorneys over a period of 
long history have had political backgrounds, and yet they still 
have been successful in doing public corruption cases. I think 
it says a lot about what U.S. Attorneys do when they get into 
office.
    One thing, Senator, as you know as well as I do, public 
corruption cases are handled by career agents and career 
Assistant United States Attorneys that U.S. Attorneys play an 
important role, but there is a team that is involved in these 
cases. And that is a nice check on one person's opportunity to 
perhaps do something that might not be in the best interest of 
the case.
    So my experience is that the political backgrounds of 
people create unpredictable situations. We have had plenty of 
Republicans prosecute Republicans in this administration, and 
we have had Democrats prosecute Democrats. Because once you put 
that hat on to be the chief prosecutor in the district, it 
transforms the way you look at the world.
    Senator Whitehouse. We hope.
    Mr. McNulty. It certainly is done a lot.
    Senator Whitehouse. Mr. Chairman, is it clear that we will 
be receiving the EARS evaluations for these individuals?
    Senator Schumer. We will get them one way or another, yes.
    Senator Whitehouse. Thank you.
    Senator Schumer. Senator Hatch.
    Senator Hatch. Well, first of all, Mr. McNulty, thanks for 
your testimony. I also concur with the Chairman that you are a 
great guy and you have served this country very, very well in a 
variety of positions.
    Mr. McNulty. Thank you, Senator.
    Senator Hatch. We all have great respect for you, having 
served up here in the Congress.
    Are these really called ``firings'' down at the Department 
of Justice?
    Mr. McNulty. No. The--
    Senator Hatch. When people are removed?
    Mr. McNulty. The terminology that has been assigned to 
these--``firings,'' ``purges,'' and so forth--is, I think, 
unfair. Certainly the effort was made to encourage and seek 
people--
    Senator Hatch. Well, basically my point is they are not 
being fired. You are replacing them with other people who may 
have the opportunity as well.
    Mr. McNulty. Correct. And, Senator, one other thing I 
wanted to say is to Senator Whitehouse--
    Senator Hatch. And that has been done by both Democrat and 
Republican administrations, right?
    Mr. McNulty. Absolutely.
    Senator Hatch. Is this the only administration that has 
replaced close to 50 percent of the U.S. Attorneys in its 6 
years in office?
    Mr. McNulty. I haven't done an analysis of--
    Senator Hatch. But others have as well, haven't they?
    Mr. McNulty. Well, it is a routine thing to see U.S. 
Attorneys come and go, as I have said.
    Senator Hatch. Well, I pointed out at the beginning of this 
that President Clinton came in and requested the resignation of 
all 93 U.S. Attorneys. Are you aware of that?
    Mr. McNulty. Yes, I am. I was, in fact--
    Senator Hatch. I did not find any fault with that. That was 
his right.
    Mr. McNulty. Right.
    Senator Hatch. Because they serve at the pleasure of the 
President, right?
    Mr. McNulty. Right.
    Senator Hatch. Well, does the President always--or does the 
Department always have to have a reason for replacing a U.S. 
Attorney?
    Mr. McNulty. They don't have to have cause. I think in 
responding to Senator Schumer's question earlier, I think--
    Senator Hatch. They do not even have to have a reason. If 
they want to replace them, they have a right to do so. Is that 
right or is that wrong?
    Mr. McNulty. They do not have to have one, no.
    Senator Hatch. Well, that is my point. In other words, to 
try and imply that there is something wrong here bc certain 
U.S. Attorneys have been replaced is wrong unless you can show 
that there has been some real impropriety. If there is real 
impropriety, I would be the first to want to correct it.
    Let me just ask you this: The primary reason given for last 
year's amendment of 28 U.S.C. 546 was the recurring--happened 
to be the recurring problems that resulted from the 120-day 
limitation on Attorney General appointments. Now, can you 
explain some of these problems and address the concerns of 
district courts that recognize the conflict in appointing an 
Interim U.S. Attorney?
    Mr. McNulty. Senator, just prior to that change being made, 
as Senator Specter set forth in his opening statement, we had a 
very serious situation arise in South Dakota, and that 
situation illustrates what can happen when you have two 
authorities seeking to appoint a U.S. Attorney. In that case in 
South Dakota, the public defender's office actually challenged 
an indictment brought by the Interim U.S. Attorney claiming 
that he did not have the authority to indict someone because 
the judge there had appointed someone else to be the U.S. 
Attorney at about the same time. The individual that the judge 
appointed was somebody outside the Department of Justice, had 
not gone through a background check. We could not even 
communicate with that individual on classified information 
until a background check would have been done. And so it was a 
rather serious problem that we faced, and it lasted for a month 
or more.
    There have been other problems like that over the history 
of the Department where someone comes in, perhaps, and has 
access to public corruption information who is completely 
outside of the Department of Justice--
    Senator Hatch. Would you be willing to make a list of these 
type of problems?
    Mr. McNulty. Well, we have been asked to do that in the 
questions that were submitted for the record at the AG's 
hearing.
    Senator Hatch. I figured that, so if you will get that list 
to us so that we understand that these are not simple matters 
and that--you know, in your testimony you mentioned with great 
emphasis that the administration has at no time sought to avoid 
the Senate confirmation process by appointing an Interim United 
States Attorney and then refused to move forward in 
consultation with home-State Senators on the selection, 
nomination, and confirmation of a new United States Attorney.
    Now, can you explain the role of the home-State Senator in 
this process and confirm that it has been done for the 
vacancies that have arisen since this law was amended?
    Mr. McNulty. Thank you, Senator. We have had 15 nominations 
made since the law was amended. All 15 of those nominations 
could have been held back if we wanted to abuse this authority 
and just go ahead and put interims in. We have had 13 
vacancies. All told, there have been about 23 situations where 
a nomination is necessary to go forward; 15 nominations have 
gone forward, and in the 8 where they haven't, we are currently 
in the process of consulting with the home-State Senators to 
send someone here.
    And one thing, Senator, I have to say, because Senator 
Whitehouse referred to it, in the case of individuals who were 
called and asked to resign, not one situation have we had an 
interim yet appointed who falls into some category of a 
Washington person or an insider or something. In the cases 
where an interim has been appointed in those most recent 
situations, they both have been career persons from the office 
who are the interims, and we are working with the home-State 
Senators to identify the nominee who will be sent to this 
Committee for confirmation.
    Senator Hatch. Thank you, Mr. Chairman.
    Senator Schumer. Senator Feinstein.
    Senator Feinstein. Thank you very much, Mr. Chairman, and 
thank you for holding these hearings.
    Mr. McNulty, I believe it was in the 2006 reauthorization 
of the PATRIOT Act when this amendment was slipped into the 
law, and it was slipped into the law in a way that I do not 
believe anyone on this Committee knew that it was in the law. 
At least to my knowledge, no one has come forward and said, 
``Yes, we discussed this. I knew it was in the law.'' No 
Republican, no Democrat.
    I would like to ask this question. Did you or any Justice 
staff make a series of phone calls in December to at least six 
United States Attorneys telling them they were to resign in 
January?
    Mr. McNulty. I think I can say yes to that because--I don't 
want to talk about specific numbers, but phone calls were made 
in December asking U.S. Attorneys to resign. That is correct.
    Senator Feinstein. And how many U.S. Attorneys were asked 
to resign?
    Mr. McNulty. Because of the privacy of individuals, I will 
say less than 10.
    Senator Feinstein. Okay, less than 10. And who were they?
    Mr. McNulty. Senator, I would--following the Attorney 
General's response to this question at his Committee, in a 
public setting I don't want to mention the names of 
individuals. Not all names have necessarily been stated, or if 
they have, they have not been confirmed by the Department of 
Justice. And information like that can be provided to the 
Committee in a private setting, but in the public setting, I 
wish to not mention specific names.
    Senator Feinstein. And in a private session, you would be 
willing to give us the names of the people that were called in 
December?
    Mr. McNulty. Yes.
    Senator Feinstein. Thank you very much.
    Mr. Chairman, I think just by way of a--my own view is that 
the PATRIOT Act should not have been amended to change, and I 
know Senator Specter felt--I know Senator Specter feels that we 
should simply return the language to the way it was prior to 
the reauthorization in 2006, and I am agreeable to this. So I 
think we have found a solution that, in essence, would give the 
United States Attorney an opportunity to make a truly temporary 
appointment for a limited period of time, after which point, if 
no nominee has come up for confirmation or been confirmed, it 
would go to a judge. And I believe that we will mark that up 
tomorrow, and hopefully that would settle that matter.
    In my heart of hearts, Mr. McNulty, I do believe--I could 
not prove in a court of law, but I do believe based on what I 
have heard that there was an effort made to essentially put in 
Interim U.S. Attorneys to give, as one person has said, 
``bright young people of our party, to put them in a position 
where they might be able to shine. That in itself I don't have 
an objection to. I think you are entitled to do that. But I 
think to use the U.S. Attorney spot for this is not the right 
thing to do. And that is why I think we need to put the law 
back the way it is.
    Let me just ask one--
    Mr. McNulty. Senator, may I just respond very briefly?
    Senator Feinstein. Sure, sure.
    Mr. McNulty. And I respect your position on that. But I 
wanted to just make it clear that that premise has to be looked 
at in light of the process we go through to select the new U.S. 
Attorneys, because if that were the case, that we were doing 
this just to give sort of a group that had been pre-identified 
or something an opportunity to serve, it would not square with 
the process that exists in virtually every State in one way or 
another, to work with the home- State Senators to come up with 
the list of names of individuals.
    In California, for example, as you know well because you 
led the way in which the system we have set up to identify 
qualified people, that has been a bipartisan process. It has 
worked very well. We respect that process. We will follow that 
process for vacancies that occur on California. So there won't 
be any way, any effort to try to force certain individuals into 
these positions since we go through a pre-established 
nomination, identification, and then confirmation process.
    Senator Feinstein. I appreciate that. Could I ask one last 
question? There are currently 13 vacancies, and this number 
does not include the recent additional 7 vacancies, like the 
ones in my State that have developed. Now, there are only two 
nominees pending before the United States Senate at this time. 
When do you intend to have the other nominees sent to us?
    Mr. McNulty. I think we are higher than two out of the 
current vacancies--well, okay.
    Senator Feinstein. No, I--
    Mr. McNulty. I will defer to your numbers on it.
    Two is right. Sorry. We will make every effort possible to 
identify nominees to submit for your consideration here in the 
Committee. Sometimes the process takes a little longer because 
there is something going on in the home-State for a selection 
process. We move quickly when we receive names to have 
interviews, so we don't--the process doesn't get delayed there. 
But it is a complicated process to develop a final list in 
consultation and get them up here. But we are committed to 
doing that as quickly as possible for every vacancy we have.
    Senator Schumer. Thank you.
    Senator Specter wanted to say a brief word before Senator 
Feinstein left, and then we will go to Senator Sessions.
    Senator Specter. Well, I just wanted to comment to Senator 
Feinstein that I thank her for her work on this issue. I had 
said before you arrived in my opening statement that I did not 
know of the change in the PATRIOT Act until you called it to my 
attention on the floor, and I said to you at that time, ``This 
is news to me, but I will check it out.'' And I then checked it 
out with Mike O'Neill, who advised that Brett Tolman, a senior 
staff member, had gotten the request from the Department of 
Justice because of a situation in South Dakota where a judge 
made an appointment which was not in accordance with the 
statute. And there had been an issue arising with other courts 
questioning the separation of power.
    But when you and I have discussed it further continuously, 
including yesterday, we came to the conclusion that we would 
send it back to the former statute, which I think will 
accommodate the purposes.
    Senator Feinstein. Thank you very much.
    Senator Schumer. Senator Sessions.
    Senator Sessions. Thank you. Senator Feinstein, I am 
troubled by the mushiness of our separation of powers and the 
constitutional concepts of executive branch and confirmation. 
And your proposal, I think it goes too far. I think the 
proposal that passed last time may need some reform.
    I would be inclined to suggest, Mr. Chairman, that the 
reform needed may be to some sort of expedited or insured 
confirmation, submission and confirmation by the Senate, rather 
than having the executive branch, which constitutionally has 
not been ever considered a part of this process to be 
appointing U.S. Attorneys, but whatever.
    You know, I don't know how I got to be United States 
Attorney. I see Senator Whitehouse. Maybe they thought he would 
be a bright, young star one day if they appointed him United 
States Attorney. I recall Rudy Giuliani and there was a dispute 
over his successor when he was United States Attorney in 
Manhattan, and he said he thought it would be nice if whoever 
were appointed was able to contribute to the discussion every 
now and then.
    We do have U.S. Attorneys that preside over a lot of 
important discussions, and they generally put their name on the 
indictments of important cases. At least they are responsible 
whether they sign the indictment or not. So it is a very 
significant position, and it is difficult sometimes to 
anticipate who would be good at it and who would not. Some 
people without much experience do pretty well. Some with 
experience don't do very well at all.
    We had a situation in Alabama that wasn't going very well. 
The Department of Justice recently made a change in the office, 
and it was reported as being for performance reasons. You 
filled the interim appointment with now U.S. Attorney Deborah 
Rhodes, a professional from San Diego, a professional 
prosecutor, who had been in the Department of Justice. She was 
sent in to bring the office together, did a good job of it. 
Senator Shelby and I recommended that she be made the permanent 
United States Attorney and we did that.
    My personal view is that the Department of Justice is far 
too reticent in removing United States Attorneys that do not 
perform. United States Attorneys are a part of the executive 
branch. They have very important responsibilities.
    I recall seeing an article recently about the wonderful 
Secretary of Labor Elaine Chao. She is the last member of the 
Cabinet standing, was part of the article. Cabinet members turn 
over. They are appointed and confirmed by the Senate at the 
pleasure of the President, and I think the Department of 
Justice has a responsibility of the 92 United States Attorneys 
to see that they perform to high standards, and if they do not 
so perform, to remove them. I don't see anything wrong with 
giving an opportunity to somebody who has got a lot of drive 
and energy and ability and letting them be United States 
Attorney and seeing how they perform. But they ought to have 
certain basic skills, in my view, that indicate they are going 
to be successful at it. Otherwise, you as the President gets 
judged on ineffectual appointments and failing to be effective 
in law enforcement and related issues. I just wanted to say 
that.
    Seven out of 92 to be asked to step down is not that big a 
deal to me. I knew when I took the job that I was subject to 
being removed at any time without cause, just like the 
Secretary of State who does not have the confidence of the 
President or the Secretary of Transportation. If somebody had 
called and said, ``Jeff, we would like you gone,'' you say, 
``Yes, sir,'' and move on, I think, and not be whining about 
it. You took the job with full knowledge of what it is all 
about.
    With regard to one--I know you do not want to comment about 
these individual United States Attorneys and what complaints or 
performance problems or personal problems or morale problems 
within the office may have existed. I would just note that one 
has been fairly public. Carol Lam has been the subject of quite 
a number of complaints. Have you received complaints from 
Members of Congress about the performance of U.S. Attorney 
Carol Lam in San Diego on the California border?
    Mr. McNulty. Well, we have received letters from Members of 
Congress. I don't want to go into the substance of them, 
although the Members can speak for them. But, again, I want to 
be very careful about what I say concerning any particular 
person.
    Senator Sessions. Well, on July 30th, 14 House Members 
expressed concerns with the Department of Justice's current 
policy of not prosecuting alien smugglers--I do not mean people 
who come across the border; I mean those who smuggle groups of 
them across the border--specifically mentioning that Lam's 
office had declined to prosecute one key smuggler. Are you 
familiar with that--June 30, 2004?
    Mr. McNulty. I am familiar with the letter.
    Senator Sessions. On September 23, 2004, 19 House Members 
described the need for the prosecution of illegal alien 
smugglers--these are coyotes--in the border U.S. Attorney 
Offices, and they specifically mentioned the United States 
Attorney in San Diego. This is what they said: ``Illustrating 
the problem, the United States Attorney's Office in San Diego 
stated that it is forced to limit prosecution to only the worst 
coyote offenders, leaving countless bad actors to go free.''
    Isn't that a letter you received that said that?
    Mr. McNulty. I am familiar with the letter.
    Senator Sessions. On October 13, 2005, Congressman Darrell 
Issa wrote to U.S. Attorney Lam complaining, saying this: 
``Your office has established an appalling record of refusal to 
prosecute even the worst criminal alien offenders.'' And then 
on October 20, 2005, 19 House Members wrote to Attorney General 
Gonzales to express their frustration, saying, ``The U.S. 
Attorney in San Diego has stated that the office will not 
prosecute a criminal alien unless they have previously been 
convicted of two felones in the district''--two felonies in the 
district--before they would even prosecute.
    Do you see a concern there? Is that something that the 
Attorney General the President have to consider when they 
decide who the U.S. Attorneys are?
    Mr. McNulty. Well, anytime Members of Congress, Senators or 
House Members, write letters to us, we take them seriously and 
give them the consideration that is appropriate.
    Senator Schumer. Thank you, Mr. McNulty. We will have a 
second round, if you want to pursue it, Senator Sessions.
    Okay. I am going to go into my second round, and I want to 
go back to Bud Cummins.
    First, Bud Cummins has said that he was told he had done 
nothing wrong and he was simply being asked to resign to let 
someone else have the job. Does he have it right?
    Mr. McNulty. I accept that as being accurate, as best I 
know the facts.
    Senator Schumer. Okay. So, in other words, Bud Cummins was 
fired for no reason, there was no cause?
    Mr. McNulty. No cause provided in his case that I am aware 
of.
    Senator Schumer. None at all. And was there anything 
materially negative in his evaluations, in his EARS reports or 
anything like that? From the reports that everyone has 
received, he had done an outstanding job, had gotten good 
evaluations. Do you believe that to be true?
    Mr. McNulty. I don't know of anything that is negative, and 
I haven't seen his reports or--there was probably only one that 
was done during his tenure, but I haven't seen it. But I am not 
aware of anything that--
    Senator Schumer. Would you be willing to submit those 
reports to us even if we would not make them public?
    Mr. McNulty. Right, well, other than--I just want to fall 
short of making a firm promise right now, but we know that you 
are interested in them, and we want to work with you to see how 
we can accommodate your needs.
    Senator Schumer. So your inclination is to do it, but you 
do not want to give a commitment right here.
    Mr. McNulty. Correct.
    Senator Schumer. Okay. As I said in my opening statement, 
if we cannot get them, I will certainly discuss with the 
Chairman my view that we should subpoena them if we cannot get 
them. This is a serious matter. I do not think they should be 
subpoenaed. I think we should get them. Certainly a report like 
this, which is a positive evaluation, your reasoning there, at 
least as far as Cummins is concerned--obviously, you can make 
imputations if others are not released--is it would not hurt 
his reputation in any way.
    Mr. McNulty. I would just say, Mr. Chairman, if you get a 
report, if you see a report, and it does not show something 
that you believe is cause, to me that is not an ``Aha'' moment 
because, as I say right up front, those reports are written by 
peers.
    Senator Schumer. Understood.
    Mr. McNulty. And they may or may not contain views that are 
a concern to us.
    Senator Schumer. But you did say earlier--and this is the 
first we have heard of this--that he was not fired for a 
particular reason. When he said he was being fired simply to 
let someone else have a shot at the job, that is accurate, as 
best you can tell.
    Mr. McNulty. I am not disputing that characterization.
    Senator Schumer. Okay. That is important to know.
    Now, so then we go on to the replacement for Mr. Cummins, 
and, again, as Senator Feinstein and others have said, there 
are all kinds of reasons people are chosen to be U.S. 
Attorneys. But I first want to ask about this: Senator Pryor 
talked about allegations--I think they were in the press, he 
mentioned--about his successor, Mr. Griffin, ``being involved 
in caging black votes.''
    First, if there were such an involvement, if he did do that 
at some point in his job, in one of his previous jobs, do you 
think that should be a disqualifier for him being U.S. Attorney 
in a State like Arkansas where there are obviously civil rights 
suits?
    Mr. McNulty. I think any allegation or issue that is raised 
against somebody has to be carefully examined, and it goes into 
the thinking as to whether or not that person is the best 
candidate for the job.
    Senator Schumer. Was Mr. Griffin given a thorough, thorough 
review before he was asked to do this job? And are you aware of 
anything that said he was involved in ``caging black votes'' ?
    Mr. McNulty. First of all, in terms of the kind of review, 
there are different levels of review, depending upon what a 
person is going to be doing. If you are an interim, you are 
already, by definition, in the Department of Justice in one way 
or another, either in the office or in the Criminal Division or 
some other place. You already have a background check. You are 
already serving the American people at the Department of 
Justice. And so you may--at that point, that has been 
sufficient, historically, to serve as an interim.
    Then there is a background check for purposes of 
nomination. That brings in more information. We look at the 
background check carefully and decide based upon that whether 
or not it is appropriate to recommend to the President to 
nominate somebody.
    Senator Schumer. So I have two questions. Would such a 
background check have come up with the fact that he was 
involved in ``caging black votes,'' if that were the fact?
    Mr. McNulty. Presumably. I am not an expert on how the 
background check process works entirely, but I think they go 
out and look at press clippings and other things. They go 
interview people. Maybe something comes up that relates to a 
person's activities--I am pretty sure things come up relating 
to a person's activities apart from--
    Senator Schumer. But let me get--
    Mr. McNulty.--what they have done in the office
    Senator Schumer. If he was involved in such an activity, 
would it be your view, would you recommend to the Attorney 
General that Mr. Griffin not become the U.S. Attorney for 
Arkansas, if he were involved? And that is a big assumption. I 
admit it is just something that Senator Pryor mentioned. I 
think that was mentioned in a newspaper article.
    Mr. McNulty. And I do not want to sound like I am 
quibbling. It is just that all I know here is that we have an 
article. Even Senator Pryor said that the explanation given was 
very different from what the article was. I don't know anything 
about it personally.
    Senator Schumer. Right.
    Mr. McNulty. And so I am--I don't want to say that if I 
knew some article was true, that that would, I would have no--
    Senator Schumer. I did not ask about the article. If he was 
doing something that would prevent black people from voting--
    Mr. McNulty. Of course. Well, if that is what it comes down 
to after all the facts are in--
    Senator Schumer. Even if that was a legal political 
activity.
    Mr. McNulty. That sounds like a very significant problem.
    Senator Schumer. Okay. All right. Now, second, I just want 
to get this one, too, in Senator Pryor's testimony. Again, 
there were allegations that the First Assistant was passed over 
because of maternity leave. I believe she said that? Okay. You 
dispute that?
    Mr. McNulty. No. It is just that in my briefings on what 
occurred, there is definitely some factual difference as to 
whether or not that really was a factor or not. It shouldn't be 
a factor, and, therefore, I have been told--
    Senator Schumer. What if it was? What if it was a factor?
    Mr. McNulty. I have been told--I am sorry?
    Senator Schumer. What if it was a factor? I mean, she said 
it. She is a person of a degree of integrity. She was the First 
Assistant in an important office, and she is saying she was 
told she was passed over because of maternity leave. I would 
have to check with my legal eagles, but that might actually be 
prohibited under Federal law.
    Mr. McNulty. I don't know, but--
    Senator Schumer. I think that is probably true.
    Mr. McNulty. It should not be a factor in consideration of 
whether or not she would serve as the interim, but I don't know 
if that--
    Senator Schumer. Can you--
    Mr. McNulty.--is accurate.
    Senator Schumer. Again, if you choose to--I don't see any 
reason to do this in private because this does not--the reason 
you gave of not wanting to mention the EARS reports or others 
is you don't want to do any harm to the people who were 
removed. But would you be willing to come back to us and give 
us an evaluation as to whether that comment was true and 
whether she was passed over because of maternity leave? Could 
you come back to the Committee and report to that?
    Mr. McNulty. Yes, I mean, at this point I can that, to the 
best of my knowledge, that is not the case. And, in fact, Mr. 
Griffin was identified as the person who would become the 
interim and possibly become the nominee before the knowledge of 
her circumstances was even known.
    Senator Schumer. Again, I would ask that you come back and 
give us a report in writing as to why what she is saying is not 
true or is a misinterpretation. Okay?
    Mr. McNulty. Okay.
    Senator Schumer. All right. Now, let me ask you this:
    You admitted--and I am glad you did--that Bud Cummins was 
fired for no reason. Were any of the other six U.S. Attorneys 
who were asked to step down fired for no reason as well?
    Mr. McNulty. As the Attorney General said at his oversight 
hearing last month, the phone calls that were made back in 
December were performance related.
    Senator Schumer. All the others?
    Mr. McNulty. Yes.
    Senator Schumer. But Bud Cummins was not one of those calls 
because he had been notified earlier.
    Mr. McNulty. Right. He was notified in June of 2006.
    Senator Schumer. So there was a reason to remove all the 
other six.
    Mr. McNulty. Correct.
    Senator Schumer. Okay. Let me ask you this--I want to go 
back to Bud Cummins here. So here we have the Attorney General 
adamant--here is his quote: ``We would never, ever make a 
change in the U.S. Attorney position for political reasons.'' 
Then we have now, for the first time we learn that Bud Cummins 
was asked to leave for no reason, and we are putting in someone 
who has all kinds of political connections, not disqualifiers, 
obviously, certainly not legally, and I am sure it has been 
done by other administrations as well. But do you believe that 
firing a well-performing U.S. Attorney to make way for a 
political operative is not a political reason?
    Mr. McNulty. Yes, I believe that it is not a political 
reason.
    Senator Schumer. Okay. Could you try to explain yourself 
there?
    Mr. McNulty. I will do my best. I think that the fact that 
he had political activities in his background does not speak to 
the question of his qualifications for being the United States 
Attorney in that district. I think an honest look at his resume 
shows that while it may not be the thickest when it comes to 
prosecution experience, it is not insignificant either. He had 
been Assistant United States Attorney in that district who set 
up their Project Safe Neighborhoods program. He had done a 
lot--
    Senator Schumer. For how long had he been there?
    Mr. McNulty. I think that was about a year or so.
    Senator Schumer. I think it was less than that, a little 
less than that.
    Mr. McNulty. But he did a number of gun cases in that 
period of time. He has also done a lot of trials as a JAG 
attorney. He had gone and served his country over in Iraq. He 
came back from Iraq, and he is looking for a new opportunity. 
Again, he had qualification that exceed what Mr. Cummins had 
when he started, what Ms. Casey had, who was the Clinton U.S. 
Attorney in that district before she became U.S. Attorney.
    So you start off with a strong enough resume, and the fact 
that he was given an opportunity to step in. And there is one 
more piece of this that is a little tricky because you don't 
want to get in this business of what did Mr. Cummins say here 
or there, because I think we should talk to him. But he may 
have already been thinking about leaving at some point anyway. 
There are some press reports where he says that.
    Now, I don't know--and I don't want to put words in his 
mouth. I don't know what the facts are there completely. What I 
have been told is that there was some indication that he was 
thinking about this as a time for his leaving the office or in 
some window of time. And all those things came together to say 
in this case, this unique situation, we can make a change, and 
this would still be good for the office.
    Senator Schumer. So you can say to me that you believe--you 
put in your testimony you want somebody who is the best person 
possible.
    Mr. McNulty. Well, I didn't--
    Senator Schumer. Do you think Mr. Griffin is the best 
person possible? I cannot even see how Mr. Griffin would be 
better qualified in any way than Bud Cummins, who had done a 
good job, who was well respected, who had now had years of 
experience. There is somebody who served a limited number of 
months on a particular kind of case and had all kinds of other 
connections. It sure does not pass the smell test. I do not 
know what happened, and I cannot--you know, we will try to get 
to the bottom of that, and I have more questions. But--
    Mr. McNulty. I did not say ``best person possible.'' If I 
used that as a standard, I would not--
    Senator Schumer. You did.
    Mr. McNulty.--have become U.S. Attorney. I said ``well 
qualified.''
    Senator Schumer. Okay.
    Mr. McNulty. And those words were purposely chosen to say 
that he met the standards that are sufficient to take a job 
like that, and I have no hesitancy of that.
    Senator Schumer. I just want to--I do not want to pick here 
with my friend Paul McNulty--quote from your testimony: ``For 
these reasons, the Department is committed to having the best 
person possible discharging the responsibilities of that office 
at all times in every district.''
    I find it hard to believe that Tim Griffin was the best 
person possible. I find it hard to believe that anyone who did 
an independent evaluation in the Justice Department thought 
that Tim Griffin was a superior choice to Bud Cummins.
    Mr. McNulty. I guess I was referring to my opening 
statement today--
    Senator Schumer. Yes, okay.
    Mr. McNulty.--when I said about ``well qualified.''
    Senator Schumer. Let me ask you this: Can you give us some 
information how it came to be that Tim Griffin got his interim 
appointment? Who recommended him? Was it someone within the 
U.S. Attorney's Office in Arkansas? Was it someone from within 
the Justice Department?
    Mr. McNulty. I don't know the answers to those questions.
    Senator Schumer. Could you get us answers to that in 
writing? And I would also like to ask the question: Did anyone 
from outside the Justice Department, including Karl Rove, 
recommend Mr. Griffin for the job? Again, I am not saying there 
is anything illegal about that, but I think we ought to know.
    Mr. McNulty. Okay.
    Senator Schumer. Okay. But you don't have any knowledge of 
this right now?
    Mr. McNulty. I don't.
    Senator Schumer. Okay. Again, when Bud Cummins was told in 
the summer of 2006 that he was to leave, did those who told him 
have the idea of a replacement in mind?
    Mr. McNulty. I don't know for a fact, but I am assuming 
that--and being straightforward about this--the notion here was 
to install Mr. Griffin as an interim, give him an opportunity 
to go into that district and then to work with the home-State 
Senators on identifying the nominee who would be sent to the 
Committee for the confirmation process. So I just want to 
assume that when Mr. Cummins was contacted, there was already a 
notion that Mr. Griffin would be given an opportunity--
    Senator Schumer. You are assuming that?
    Mr. McNulty. That is, I think, a fair assumption.
    Senator Schumer. All right. Let me ask you this, because we 
will get some of these answers in writing about outside 
involvement and what specifically happened in the Bud Cummins 
case. It sure does not smell too good, and you know that, and I 
know that. But maybe there is a more plausible explanation than 
the one that seems to be obvious to everybody. But let's go on 
to these questions.
    Did the President specifically approve of these firings?
    Mr. McNulty. I am not aware of the President being 
consulted. I don't know the answer to that question.
    Senator Schumer. Okay. Can we find out an answer to that?
    Mr. McNulty. We will take it back.
    Senator Schumer. Was the White House involved in any way?
    Mr. McNulty. These are Presidential appointments.
    Senator Schumer. Exactly.
    Mr. McNulty. So White House Personnel I am sure was 
consulted prior to making the phone calls.
    Senator Schumer. Okay. But we do not know if the President 
himself was involved, but the White House probably was.
    When did the President become aware that certain U.S. 
Attorneys might be asked to resign?
    Mr. McNulty. I don't know.
    Senator Schumer. Okay. Again, I would ask that you get back 
to us on that.
    And the fourth question, which I am sure you cannot answer 
right now: Was there any dissent over these firings? Do you 
know if there was any in the Justice Department? Did some 
people say, ``Well, we shouldn't really do this'' ?
    Mr. McNulty. I am not aware of that. To the contrary, 
actually, you know Dave Margolis.
    Senator Schumer. I do.
    Mr. McNulty. He has been involved in all of the interviews 
for every interim who has been put in in this administration. 
He has been involved in every interview for every U.S. Attorney 
that has been nominated in this administration. We have a set 
group of people and a set procedure that involves career 
people. Dave actually takes the lead role for us in that, and 
Dave was well aware of this situation.
    And so apart from objections, I know of folks who believe 
that we had the authority and the responsibility to oversee the 
U.S. Attorney's Offices the way we thought was appropriate.
    Senator Schumer. Okay. Let me get to the EARS evaluations. 
Now, you agree that the EARS evaluations address a broad range 
of performance criteria that is a pretty good--you said it is 
not the only criteria, but it is a pretty good basis to start 
with. Is that fair to say?
    Mr. McNulty. It can be in some instances. It just depends 
on what was going on at that office at that time that those 
evaluators might have been able to spot.
    Senator Schumer. Okay. Have you seen each--for each of the 
seven fired U.S. Attorneys, have you seen the EARS evaluations?
    Mr. McNulty. I have not seen all the evaluations involved 
in these cases, no.
    Senator Schumer. Okay. Well, you had said you would be 
willing to talk over with us what was in those evaluations in 
private so you would protect the reputations of the U.S. 
Attorneys. Can we do that this week?
    Mr. McNulty. Sure. We can try and make that available.
    Senator Schumer. Great. Thank you. I very much appreciate 
that.
    And do you have any objection in private of providing these 
evaluations to the Committee, the EARS evaluations?
    Mr. McNulty. The only reason why I am hesitating on that is 
because evaluations like that are what we would normally call 
deliberative material, and Senator Specter and I have discussed 
this, you know, about the Committee's oversight 
responsibilities, and I respect the Committee's ability to get 
information. But often the Committee shows comity to the 
Department by appreciating the sensitivity of certain things. 
And we have appreciated your respect for that. And these 
evaluations are done by career U.S. Attorney Office staff who 
go into an office and look at it. It is deliberative. It 
provides information that could be prejudicial to some people. 
And so that is the only reason why I am not sitting here 
saying, ``Sure.'' I want--
    Senator Schumer. Sure, I understand.
    Mr. McNulty.--to go back and I want to think about what our 
policy is.
    Senator Schumer. But don't you agree that probably, given 
the sensitivities that you have and given the questions we 
have, it seems to me logical we could work out something that 
would protect the reputations of those you wish to protect and 
still answer our questions.
    Mr. McNulty. My goal is to give you as much information as 
we possibly can to satisfy your concerns that nothing was done 
wrong here.
    Senator Schumer. Good. Okay. And we will endeavor to have 
the meeting this week, and the legislation is moving. Maybe we 
can clear the air on all of this--or figure out what happened, 
anyway, soon.
    Let me just ask you this in terms of more shoes that might 
drop: Is the job of Dan Dzwilewski--now, this is the Special 
Agent in San Diego. He defended Carol Lam. He called the firing 
``political.'' He is the head FBI man over there. Is his job in 
any danger?
    Mr. McNulty. No.
    Senator Schumer. Good. Next, are there any--
    Mr. McNulty. Certainly--let me just put this--not for 
reasons related to that comment.
    Senator Schumer. As of today.
    Mr. McNulty. If the FBI has some other matter and I don't 
know--
    Senator Schumer. I understand. Okay. We don't want him to 
have a carte blanche. We just don't want him to be fired for 
speaking his mind here. Okay.
    Are there any more firings that might be expected, any 
other U.S. Attorneys who are going to be asked to resign in the 
very near future for the law that Senator Feinstein and Senator 
Specter are--``reinstating,'' I guess is the right word--takes 
effect?
    Mr. McNulty. I am not aware of any other plans at this 
point to do that.
    Senator Schumer. Would you be willing to let the committee 
know if there were any plans, or at least the home-State 
Senators to know if there are any further plans in this regard 
before those kinds of firings could occur?
    Mr. McNulty. That seems rather broad.
    Senator Schumer. Okay. Why don't you get back to us?
    Mr. McNulty. We would just have to think about what you are 
asking there. We want to consult with the home- State Senators 
of filling those seats. I am not sure if it is good policy for 
the executive branch to consult with the home-State Senator 
before removing somebody from a position.
    Senator Schumer. It really has not--I don't know if it has 
happened in the past. At least it has not in--I mean, I have 
had good consultations with the Justice Department on the four 
U.S. Attorneys in New York. By the way, none of them are going 
to be asked to resign in the next month or so, are they?
    Mr. McNulty. We have no--no one is currently being 
contemplated right now.
    Senator Schumer. Okay. But it is something maybe you should 
consider, given everything that is happening here. And if, you 
know, there is a legitimate reason that somebody should be 
removed, it might clear the air if the home-State Senators or 
someone outside of the executive branch were consulted, and the 
most logical people are, given the traditions, the home-State 
Senators. So I would ask you to consider that.
    Mr. McNulty. I appreciate that.
    Senator Schumer. But you don't have to get me an answer 
here.
    Let me ask you about one further person. There is a U.S. 
Attorney in Texas. Senator Cornyn has left. He might have more 
to say about this. But Johnny Sutton has come under 
considerable fire for prosecuting two border agents who shot an 
alien smuggler. There have been public calls for his ouster by 
more than one Congressman. Is his performance in any danger?
    Mr. McNulty. No.
    Senator Schumer. Okay--I mean, is his position in any 
danger. Okay.
    I would now like to go on to Carol Lam. We talked a little 
bit about this. Senator Sessions mentioned all the Congress 
people who had written letters. I would just ask Senator 
Sessions one thing: Were those bipartisan letters, do you know? 
I don't know who the 13 or 18--
    Senator Sessions. I don't know if it was 13 or 19 people.
    Senator Schumer. Okay. Well, if you could submit those 
letters to the record, we could answer that question.
    Senator Sessions. I would be glad to.
    Senator Schumer. Great. Without objection.
    Now, given the velocity, the heat of the investigations 
that have gone on in Southern California, did the Justice 
Department consider the chilling effect or the potential 
chilling effect on those prosecutions when Carol Lam was fired? 
I mean, shouldn't it have been a factor as you weighed it?
    Mr. McNulty. Certainly.
    Senator Schumer. Do you know if they did?
    Mr. McNulty. Yes. We--I have to be careful here because, 
again, I am trying to avoid speaking on specifics. But we would 
be categorically opposed to removing anybody if we thought it 
was going to have either a negative effect in fact or a 
reasonable appearance. Now, we can be accused of anything. We 
cannot always account for that. But as far as a reasonable 
perception and factual, that would be a very significant 
consideration. We would not do it if we thought it was, in 
fact, interfere with a case.
    Senator Schumer. So there were discussions about this 
specific case, and people dismissed any chilling effect--
    Mr. McNulty. Anytime we would ask for someone--
    Senator Schumer. Or even as Senator Whitehouse mentioned, 
the break in the continuity of important ongoing prosecutions. 
Was that considered in this specific instance?
    Mr. McNulty. Anytime we do this, we would consider that, 
and may I say one more thing about it. What happened in the 
prosecution of Congressman Cunningham was a very good thing for 
the American people and for the Department of Justice to 
accomplish. We are proud of that accomplishment. And any 
investigation that follows from that has to run its full 
course. Public corruption is a top priority for this 
Department, and we would only want to encourage all public 
corruption investigations and in no way want to discourage 
them. And our record I think speaks for itself on that.
    Senator Schumer. Were you involved in the decision to 
dismiss Carol Lam?
    Mr. McNulty. I was involved in all of this, not just any 
one person. But I was consulted in the whole decision process.
    Senator Schumer. Okay. And did you satisfy yourself that--I 
mean, it would be hard to satisfy yourself about an appearance 
problem.
    Mr. McNulty. Right.
    Senator Schumer. Because there obviously was going to be an 
appearance problem. On the other hand, certain factors at least 
in the Justice Department must have outweighed that. It would 
be hard to believe that Carol Lam was dismissed without cause 
in your mind. You must have had some cause.
    Mr. McNulty. All of the changes that we made were 
performance related.
    Senator Schumer. Okay. And we will discuss that privately 
towards the end of the week, so I am not going to try to put 
you on the spot here. But I do want to ask you this: Did anyone 
outside the Justice Department, aside from the letters we have 
seen that Senator Sessions mentioned, urge that Carol Lam be 
dismissed?
    Mr. McNulty. I don't know.
    Senator Schumer. Okay. Could you get an answer to that?
    Mr. McNulty. You mean anyone--because those letters--
    Senator Schumer. Those are public letter.
    Mr. McNulty.--may not be the only letters we have received. 
We may have received--
    Senator Schumer. I know, but phone calls, any other--I 
would like you to figure out for us and get us answers on 
whether there were other people other than the people who 
signed--I don't know who they were--who signed the letters that 
Senator Sessions mentioned, outside the Justice Department, who 
said--obviously, given the sensitivity of this, this is an 
important question--who said that Carol Lam should be 
dismissed. Can you get back to us on that?
    Mr. McNulty. Yes.
    Senator Schumer. Thank you.
    Mr. McNulty. I am only not giving you a definitive answer 
now because I am trying to avoid talking about any one 
district.
    Senator Schumer. Okay.
    Mr. McNulty. But the suggestion in your question would be 
whether there might have been some--let's just say on a general 
matter, not referred to any one district--any undue influence 
on us from some on the outside.
    Senator Schumer. Oh, no, I did not ask that. I did not ask 
whether it was undue.
    Mr. McNulty. Well, I know you didn't. But I mean 
generically, I can say with any change we made, they were not 
subject to some influence from the outside.
    Senator Schumer. I would just ask that when you meet with 
us, we get an answer to that question: Who from the outside 
urged, whether appropriately or inappropriately--it might be 
appropriate. Certainly a job--if you think a U.S. Attorney 
isn't doing a good job, to let that be known that she be 
dismissed.
    Okay. Let me just ask you this: We are going to hear from a 
fine U.S. Attorney from the Southern District, former, and she 
says in her testimony--she quotes Robert Jackson as Attorney 
General, and he gave a noted speech to U.S. Attorney. He said 
this: ``Your responsibility in your several districts for law 
enforcement and for its methods cannot be wholly surrendered to 
Washington, and ought not to be assumed by a centralized 
Department of Justice.'' Do you agree with that?
    Mr. McNulty. I am not sure if I can say that I agree with 
everything being said in that. You know, what is tricky about 
this is that, Senator, you or any other Senator on this 
Committee might call us on another day and say to us, ``I want 
to see more health care fraud cases done. You people have 
turned your back on that problem.'' And we would get back to 
you and say, ``Absolutely, Senator. We will take that 
seriously.''
    But how could we do that if we did not have some confidence 
that if we turned around and said to our U.S. Attorneys, ``We 
need you to prioritize health care fraud. It is a growing 
problem in our country, and you need to work on it'' ? Now, 
that is a centralized Washington responsibility going out to 
the field. So I believe in the Department of Justice this does 
act with some control over its priorities and its use of its 
resources. I don't believe, however, that that should go to the 
question of the integrity or the judgment--
    Senator Schumer. And he uses the word, in all fairness, he 
uses the word ``wholly.'' He does not say Washington should 
have no influence. He says ``...cannot be wholly surrendered to 
Washington...''
    Mr. McNulty. Well, then, I would agree with that.
    Senator Schumer. Okay. A final question, and I appreciate 
the indulgence of my colleagues here, and I will extent to them 
the same courtesy. On the Feinstein-Specter bill, does the 
administration--unless you want to ask about this, Arlen, and 
then--no? Okay.
    Senator Specter. Well, wait a minute. Are you saying I only 
have 23 minutes and 28 seconds left?
    [Laughter.]
    Senator Schumer. You can have double that if you wish.
    Let's see. Then I will ask it. What objection do you have 
to Feinstein's bill, the one that Senator Feinstein and Senator 
Specter put in, which restores a system which seemed to be 
perfectly adequate for 20 years, including in the Reagan 
administration, the Bush administration, and the first 6 years 
of this administration? Are you aware of any legal challenges 
prior to 2006 to the method of appointing U.S. Interim 
Attorneys?
    Mr. McNulty. Well, there are two issues or two legislative 
proposals that we seem to be talking about. One, I think, is 
the bill I have in front of me, which is S. 214. And if I am 
reading it correctly, it goes beyond what existed prior to the 
amendment in the PATRIOT Act. It gives the appointment 
authority to the district court, the chief judge of the 
district, completely. And if I am wrong, someone can correct me 
on that, but that is my reading of the legislation.
    Now there is another idea on the table, which is to restore 
it to what it was prior to the PATRIOT Act, which gave the 
Attorney General the authority to appoint someone for 120 days, 
and then the chief judge would appoint that person afterwards.
    Are you asking me about the latter more than the--
    Senator Schumer. Yes. I am asking you would you have 
objection, because as I understand it, the sponsors simply want 
to restore what existed before the PATRIOT Act change. Would 
the administration be opposed to that?
    Mr. McNulty. Our position, I think, would be opposition. 
But we recognize that that is better than what the original 
legislation is, and the reason is because we supported what was 
done in the PATRIOT Act because we think it cleaned up a 
problem that, though it only came up occasionally--and in the 
great majority of cases, the system did work out okay. When it 
does come up, it can create some very serious problems.
    Senator Schumer. But you used the new PATRIOT Act language 
to go far beyond the specific problem that occurred in South 
Dakota.
    Mr. McNulty. Well, that is probably what we are here today 
to talk about. I don't think that is true, but I understand 
your perspective on it.
    Senator Schumer. Okay.
    Mr. McNulty. And I think that if our concern--if that 
PATRIOT Act provision had never passed, what would have 
happened in Arkansas? Would we have been prohibited from going 
in and asking someone to step aside and placing a new person 
in? No. It is just that the person would have served for 210 
days, and then the chief judge would have had to re-up the 
person.
    So we may still be talking about what happened in Arkansas, 
and there is a linkage being made to that provision and some 
initiative that we took afterwards, and there isn't any linkage 
in our mind.
    Senator Schumer. I would argue to you--and this will be my 
last comment--that knowing that there is an outside independent 
judge of an interim appointment has a positive, prophylactic 
effect. It makes you more careful as to--it would make any 
executive more careful about who that interim appointment 
should be.
    Senator Specter?
    Senator Specter. Thank you.
    Are you saying that the Department of Justice will not 
object to legislation which returns status quo antebellum--
because this has been a war--prior to the amendments of the 
PATRIOT Act?
    Mr. McNulty. I am not saying we will or we will not object 
because, sitting here at the table today, I cannot take a 
position on that legislation. I have to go back and have that 
decision made.
    I am saying, though, that we support the law as it 
currently stands, and if we come back and object to the 
legislative idea that you have talked about here today, that 
would be the reason. But I am not specifically saying today 
that we are going to object. We have to make a decision in the 
appropriate way.
    Senator Specter. That is a ``don't know.''
    Mr. McNulty. Correct.
    Senator Specter. Would you be willing to make a commitment 
on situations where the Attorney General has an interim 
appointment to have a presidential appointment within a 
specified period of time?
    Mr. McNulty. Don't know.
    Senator Specter. Well, that clarifies matters--
    Mr. McNulty. I would have to go back and think about that, 
but I understand the idea.
    Senator Specter. I like brief answers and brief lines of 
questioning.
    Would you consult with the home-State Senator before the 
selection of an Interim U.S. Attorney?
    Mr. McNulty. We have not done that to date. It--
    Senator Specter. I know that. Would you?
    Mr. McNulty. Well, it is something that is worth 
considering, and it can be a very helpful thing if--
    Senator Specter. Will consider?
    Mr. McNulty. Will we consider doing that.
    Senator Specter. Well, that is what you are saying. I am 
trying to find your answer here.
    Mr. McNulty. Right.
    Senator Specter. Will consider?
    Mr. McNulty. Yes, we will consider that possibility.
    Senator Specter. All right. I have 24 more questions, but 
they have all been asked twice. And I would like to--
    Senator Schumer. It is good to be the Chairman, isn't it?
    Senator Specter. And I would like to--I certainly enjoyed 
it.
    [Laughter.]
    Senator Specter. The gavel was radioactive when I had it. 
And I would like to hear the next panel, so I will cease and 
desist.
    Senator Schumer. Thank you. And I will still call you ``Mr. 
Chairman'' out of respect for the job you did.
    Senator Whitehouse?
    Senator Whitehouse. Thank you. Sorry to step out for a 
while. We have the Iraq budget down in the Budget Committee, so 
we are called in many directions here.
    Mr. McNulty, you said that the firings were performance 
related and that there was a set procedure that involves career 
people that led to this action. To go back to the Washington 
Post, ``One administration official,'' says the Post, ``who 
spoke on the condition of anonymity in discussing personnel 
issues, said the spate of firings was the result of''--and here 
is the quote from the administration official- -` ``pressure 
from people who make personnel decisions outside of Justice' 
''--capital J, the Department--` ``who wanted to make some 
things happen in these places.' ''
    Mr. McNulty. Whoever said that was wrong. That is--I don't 
where they would be coming from in making a comment like that 
because, in my involvement with this whole process that is not 
a factor in deciding whether or not to make changes or not. So 
I just don't know--
    Senator Whitehouse. What is not a factor?
    Mr. McNulty. Well, that quote suggests agendas, political 
or otherwise, outside of the Department. And in looking at how 
to--or who should be called or encouraged to resign or changes 
made, they are based upon reasons--they weren't based upon 
cause, but they were based upon reasons that were Department 
related and performance related, as we have said. And so I 
don't ascribe any credibility to that quote in the newspaper.
    Senator Whitehouse. Okay. Would you agree with me that--
when you are in the process of selecting a United States 
Attorney for a vacancy, it makes sense to cast your net 
broadly, make sure you have a lot of candidates, choose among 
the best, and solicit input from people who are sort of outside 
of the law enforcement universe? Would you agree with me that 
it is different when you have a sitting United States Attorney 
who is presently exercising law enforcement responsibilities in 
a district how and whether you make the determination to 
replace that individual?
    Mr. McNulty. I think that is a fair concern and one 
distinction that is important to keep in mind.
    Senator Whitehouse. You would not want to apply the same 
process to the removal of a sitting U.S. Attorney that you do 
when you are casting about for potential candidates for a 
vacancy?
    Mr. McNulty. I am not sure I fully appreciate the point you 
are making here. Could I ask you to restate it so I make sure 
that if I am agreeing with you, I know exactly what you are 
trying to say?
    Senator Whitehouse. Yes, I think what I am trying to say is 
that when there is an open seat and you are looking for people 
to fill it, you can cast your net pretty broadly, and it is 
fair to take input from all sorts of folks. It is fair to take 
input from people in this building.
    Mr. McNulty. Oh, I see what you are saying.
    Senator Whitehouse. It is fair to take input from people 
you know in law enforcement. It is fair to take input from 
people at the White House. It is fair to take input from a 
whole variety of sources.
    But it is different once somebody is exercising the power 
of the United States Government and is standing up in court 
saying, ``I represent the United States of America.'' And if 
you are taking that power away from them, that is no longer an 
appropriate process, in my view, and I wanted to see if that 
view is shared by you.
    Mr. McNulty. I think I appreciate what you are saying 
there, and I think that when it--you know, there are two 
points. The first is that we believe a U.S. Attorney can be 
removed--
    Senator Whitehouse. Of course.
    Mr. McNulty.--for reason or for no reason, because they 
serve at the pleasure of the President. But there is still a 
prudential consideration. There has got to be good judgment 
exercised here. And when that judgment is being exercised, 
there have to be limitations on what would be considered. I 
think that is what you are suggesting. And there is going to be 
a variety of factors that may or may not come out in an EARS 
report or some other kind of well- documented thing. But it 
comes down to a variety of factors that have to do with the 
performance of the job, meaning management--
    Senator Whitehouse. But they are truly performance related. 
You do not just move around because, you know, somebody in the 
White House or somebody in this building thinks, ``You know 
what? I would kind of like to appoint a U.S. Attorney in 
Arkansas. Why don't we just clear out the guy who is there so 
that I can get my way.'' That person might very well, with 
respect to a vacancy, say, ``I want my person there,'' and that 
is a legitimate conversation to have, whether you choose it or 
not. But it is less legitimate when there is somebody in that 
position, isn't it?
    Mr. McNulty. Yes, I hear the distinction you are trying to 
make there. I am not sure I agree with it. The change that is 
occurring by bringing a new person in versus the change that is 
occurring by bringing a person in to replace an interim, I am 
not sure if I appreciate the dramatic distinction between them. 
If the new person is qualified and if you are satisfied that it 
is not going to interfere with an ongoing case or prosecution, 
it is not going to have some general disruptive effect that is 
not good for the office--
    Senator Whitehouse. Well, there is always some disruptive 
effect when you replace--
    Mr. McNulty. There is always some, right. The question is: 
Is it undue or is it substantial beyond the kind of normal 
turnover things that occur?
    I think that there needs to be flexibility there to make 
the changes that need to be made.
    Senator Whitehouse. Finally, have the EARS evaluations 
changed since I had the pleasure of experiencing one? Do you 
still go and talk to all the judges in the district? Do you 
still go and talk to all the agencies that coordinate with the 
United States Attorney's Office in the district? Do you still 
go and talk to community leaders like the Attorney General and 
police chiefs who are regular partners and associates in the 
work of the Department of Justice in those areas?
    Mr. McNulty. That is right. And I don't know if you were in 
the room when I was having this exchange with Senator Schumer, 
but I want to say it one more time to make it clear. We are 
ready to stipulate that the removal of U.S. Attorneys may or 
may not be something supported by an EARS report, because it 
may be small business performance related that is not the 
subject of what the evaluators saw or when they saw it or how 
it came up and so forth.
    I go back to this point because I know that your and 
Senator Schumer's interest in seeing them is because you want 
to try to identify ``the thing,'' and say, well, there is 
justification--or there is not, right? And if there is not, the 
assumption should not be made that, therefore, we acted 
inappropriately or that there wasn't other performance- related 
information that was important to us.
    Senator Whitehouse. No, but given the scope of the EARS 
evaluations, which really went into every nook and cranny of 
the operational scope of my U.S. Attorney's Office, the idea 
that there is something else somewhere that might appear and 
justify the removal of a U.S. Attorney and yet be something 
that all of the judges in the district, all of the Federal law 
enforcement agencies in the district, the police chiefs and 
other coordinating partners with that U.S. Attorney, that all 
of them were completely unaware of and that never surfaced in 
the EARS evaluation would be somewhat of an unusual 
circumstance and I think would require a little bit of further 
exploration.
    Mr. McNulty. Well, I appreciate the need for further 
explanation, and we are committed to working with you to get 
the answers you are looking for. But maybe EARS reports have 
changed a bit, but the management of the Department of Justice 
has changed a bit, too. Because when we announce priorities, we 
mean it, and priorities and how an office has responded to 
those priorities may not be measured by the evaluators the way 
that other things, the more nuts and bolts things are. And that 
is where those reports are very valuable, but they do not 
always tell the full story.
    Senator Whitehouse. We will follow up.
    Thank you, Mr. Chairman.
    Senator Schumer. Senator Sessions?
    Senator Sessions. Thank you. I think this is a most 
interesting discussion. I do have very, very high ideals for 
United States Attorneys. I think that is a critically important 
part of our American justice system. I think sometimes that the 
Department of Justice has not given enough serious thought to 
those appointments, has not always given the best effort to 
selecting the best person.
    President Reagan, when he was elected and crime was a big 
problem, he promised experienced prosecutors, and I think that 
was helpful. I had been an Assistant for 2 years, 2\1/2\ years, 
and that is how I got selected. And I did know something about 
prosecuting cases. I tried a lot of cases, and I knew something 
about the criminal system.
    So I think Giuliani is correct. You need to have somebody 
who can contribute to the discussion, who knows something about 
the business.
    With regard to Arkansas, I just took a quick look, and I 
don't think that Mr. Cummins had any prior prosecutorial 
experience before he became U.S. Attorney, did he?
    Mr. McNulty. That is correct. He did not.
    Senator Sessions. But Mr. Griffin had at least been a JAG 
prosecutor in the military and had been to Iraq, and he had 
tried people there, had he not?
    Mr. McNulty. Tim Griffin had actually prosecuted more cases 
than a lot of U.S. Attorneys who go into office. A lot of 
people come from civil backgrounds or policy backgrounds, and 
he actually had been in court, whether as a JAG here in Fort 
Campbell, where he tried a very high- profile case, or over in 
Iraq or as a Special Assistant in that office. And I don't 
think we should look lightly upon his experience as a 
prosecutor.
    Senator Sessions. And he spent a good bit of time with 
General Petraeus, I guess, with the 101st in Mosul, Iraq, as an 
army JAG officer. So, anyway, he had some skills and experience 
beyond politics.
    But I want to join with Senator Schumer and my other 
colleagues in saying I think we need to look at these 
appointments maybe in the future more carefully. It is a tough 
job. You have to make tough decisions. I remember--I guess I 
took it as a compliment--people said that Sessions would 
prosecute his mother if she violated the law. I guess that was 
a compliment. I tried to take it as that. So I want to say 
that.
    With regard to the problem of a judge making this 
appointment, you end up, do you not, with a situation in which 
the judge is appointing the prosecutor to try the poor slob 
that is being tried before him?
    Mr. McNulty. Right.
    Senator Sessions. In other words, here he is appointing the 
guy to try the guy, and that really is not a healthy approach 
for a lot of reasons, and it is not consistent with the 
Constitution, to my way of thinking, which gives the oversight 
of U.S. Attorneys to the Senate in the confirmation process, 
and to some degree the House, because they have got financial 
responsibilities and so forth.
    Is that a problem in your mind that a judge would actually 
be choosing the person and vouching for the prosecutor who will 
try the defendant that he is required to give a fair trial to?
    Mr. McNulty. We have cited that as one of the issues that 
justified the provision that was in the PATRIOT Act.
    Senator Sessions. And are there any other circumstances 
which Federal judges appoint other officers of other Federal 
agencies that you know of?
    Mr. McNulty. I am not aware of a situation where someone in 
another agency. I know certainly situations where someone from 
private practice was appointed, and that creates difficulties 
because of--
    Senator Sessions. No, I am talking about do they ever- -do 
they have any authority if there is uncertainty over a 
Department of Treasury official or a Department of Commerce 
official that a Federal judge--
    Mr. McNulty. Oh, I see your question.
    Senator Sessions.--would appoint those appointments?
    Mr. McNulty. No. This is unique, actually, and I think that 
is another argument--
    Senator Sessions. Yes, I do not think it--I think it is a 
serious matter.
    Now, Senator Schumer, let's think about this. Would it 
help--and I will ask you your comments, Mr. McNulty--if we had 
some sort of speedy requirement to submit the nominee for 
confirmation and give the oversight to the Senate where the 
Constitution seems to give it? How would you feel about that?
    Mr. McNulty. I appreciate what you are trying to do there, 
and we agree with the spirit of that, that we want to get the 
names up here as fast as possible. The problem is we do not 
control completely the process for getting the names, because 
when we are working with home-State Senators or some other 
person to provide names to us for us to look at, that is a step 
that is beyond our control. And it could create problems if 
there is a set time period--
    Senator Sessions. Well, it could create problems for you, 
but you are going to have some sort of problems because you are 
not unilaterally empowered to appoint United States Attorneys. 
You do not have a unilateral right. So somebody is going to 
have some oversight.
    Mr. McNulty. Yes.
    Senator Sessions. In the other system, you had 120 days and 
a Federal judge had the responsibility. So you cannot have it 
like you would like it.
    Mr. McNulty. Well, I appreciate that, and I am not trying 
to sound greedy. I am just saying that if we are talking 
specifically about the idea of a timetable, that is what we 
would have to look at.
    I would actually like to see the Committee just judge us on 
our track record and look at the openings, look at the 
interims, look at the nominees, and how long it takes to get to 
a nomination and then the confirmation. And based upon the 
track record, that is the oversight, that is the 
accountability. And I think the record we have is pretty good.
    I would like to say one other thing, Senator. Your 
experience in Alabama and Senator Schumer's experience in New 
York I think illustrates how appointing somebody to come into a 
district as an interim, who may eventually get nominated and 
confirmed, can be a very positive thing. Both in Senator 
Schumer's case where my predecessor, Jim Comey, was actually an 
Assistant United States Attorney in my office--and he is from 
Virginia, and he came up as an assistant to New York to be the 
interim, sent by Main Justice to New York, but he had 
connections there and a root there where he started his career. 
And he was an interim, and then he got nominated for that 
position later. And then the same thing happened in South 
Alabama, and it can be a very positive way of dealing with a 
vacancy and putting a competent person in place that does not 
come from within that same office.
    Senator Sessions. I do think that we have a responsibility 
to at some point confirm United States Attorney nominees if 
there is time sufficient to do so, but the position cannot go 
vacant. Somebody has got to hold the job in every district at 
some point in time because the work of the office cannot 
continue without somebody as the designated United States 
Attorney.
    I would note that I don't know Arkansas. I think you have 
learned that you have got to be careful with these offices. 
There are perceptions out there. Senator Pryor is concerned 
about this appointment. He is a good man, a former Attorney 
General. It would have been better, I think, had you been a 
little more careful with that appointment, although the nominee 
I think has got a far better track record than some would 
suggest, the new U.S. Attorney.
    I would note that we could give--I will just say it this 
way. Most of us in the Senate do not review the U.S. Attorney 
appointments personally. Staff reviews them, and we hear if 
there are objections and get focused on it if there is a 
problem. I think we all probably should give a little more 
attention to it and we hold the administrations as they come 
forward to high standards about appointments, because it is a 
very important office.
    Mr. McNulty. Senator Sessions, to be clear on Arkansas, Tim 
Griffin is an interim appointment, and consulting with Senator 
Pryor and Senator Lincoln has been going on for some time. And 
a nomination in that district will be made in consultation with 
them. In fact, we will even take his statement that he made 
here today and look at it closely and see what it is. He said 
today he was going to talk to Attorney General Gonzales.
    That is the process that we are committed to following. 
There is no effort here to go around Senator Pryor or Senator 
Lincoln and find a nominee that they would not support. And so 
that approach in Arkansas has been the same that we have used 
in all the other places where we seek the guidance and the 
input from the home-State Senators as we look for someone we 
can get confirmed by the Senate.
    Senator Sessions. I would just conclude by noting that 
there is a danger when politicians get involved in 
appointments, and particularly when United States Attorneys 
have to make tough charging decisions like the Border Patrol 
shooting and other things like that. And we have got to be real 
careful about that.
    I would just say, though, when it comes to priorities of an 
Assistant U.S. Attorney or the Department of Justice or a U.S. 
Attorney, then I think the political branch does have a right 
to question whether the right priorities are being carried out.
    Thank you, Mr. Chairman.
    Senator Schumer. Well, thank you, and I want to thank you, 
Mr. McNulty. This is not an easy thing for you to come and 
testify to, and I appreciate your candor in admitting that Bud 
Cummins was not fired for any particular reason, your 
willingness to come and talk with us so we can figure out 
exactly what went on this week, as well as your inclination to 
both submit the EARS reports and give us information about any 
outside influences on this. That will be very helpful not only 
here, but in establishing a smooth working relationship between 
this Committee and the Justice Department in the new Congress. 
And the proof of the pudding, obviously, is going to be in the 
eating, but I think we look forward to getting real information 
about what happened here.
    Thank you.
    Mr. McNulty. Thank you.
    Senator Schumer. Okay. Let me call our next three 
witnesses, and we appreciate them for their patience. First is 
Mary Jo White. She is currently a partner at the New York law 
firm of Debevoise & Plimpton, the first and only woman to have 
served as the U.S. Attorney for the Southern District, which 
many view as the best Federal prosecutor's office in the 
country. Ms. White has a lot to do with the fine reputation of 
that office, and her own reputation for excellent and integrity 
is unparalleled. A graduate of William and Mary and Columbia 
Law School, she was an officer of the Law Review, and I also 
owe her a personal debt of gratitude because my chief counsel, 
who has done a great job here, Preet Bharara, sort of worked 
under her when she lured him away from private practice, and he 
is still there.
    Professor Laurie Levenson is currently Professor of Law and 
William M. Rains Fellow at Loyola Law School in Los Angeles. 
She teaches criminal law, criminal procedure, ethics, 
antiterrorism, and evidence. Prior to joining the faculty at 
Loyola Law School, Ms. Levenson spent 8 years as an Assistant 
U.S. Attorney, where she prosecuted violent crimes, narcotic 
offenses, white-collar crimes, immigration, and public 
corruption cases. She is a graduate of Stanford and the UCLA 
Law School, where she was chief articles editor for the Law 
Review.
    Stuart Gerson is currently head of the litigation practice 
at the law firm of Epstein, Becker & Green. He joined as a 
partner in 1980. Prior to his return to private practice, Mr. 
Gerson served as Assistant Attorney General for the Civil 
Division at the Department of Justice under both President 
George H.W. Bush and later as Acting Attorney General under 
President Clinton. He served as an Assistant U.S. Attorney in 
the District of Columbia and is a graduate of Penn State and 
the Georgetown University Law Center.
    Would all three of you please rise? Do you affirm that the 
testimony you are about to give before the Committee will be 
the truth, the whole truth, and nothing but the truth, so help 
you God?
    Ms. White. I do.
    Ms. Levenson. I do.
    Mr. Gerson. I do.
    Senator Schumer. Thank you.
    Ms. White, you may proceed.

STATEMENT OF MARY JO WHITE, PARTNER, DEBEVOISE & PLIMPTON, LLP, 
                       NEW YORK, NEW YORK

    Ms. White. Thank you very much, Senator Schumer, Senator 
Specter. I am honored to appear before you today. I have spent 
over 15 years in the Department of Justice both as an Assistant 
United States Attorney--the best job you can ever have--and as 
United States Attorney. I served during the tenures of seven 
Attorneys General of both political parties, most recently John 
Ashcroft. I was twice appointed as an Interim U.S. Attorney, 
first in the Eastern District of New York in 1992 by Attorney 
General William Barr--and I heard from Mr. Gerson that he also 
had a hand in signing those papers--and then in 1993 I was 
appointed as Interim U.S. Attorney in the Southern District of 
New York by Attorney General Janet Reno. Most recently, as 
Senator Schumer indicated, I served for nearly 9 years as the 
presidentially appointed U.S. Attorney in the Southern District 
of New York from 1993 until January 2002.
    Before I comment substantively on the issues before the 
Committee, let me make very clear up front that I have the 
greatest respect for the Department of Justice as an 
institution, and I have no personal knowledge of the facts and 
circumstances regarding any of the reported requests for 
resignations of sitting United States Attorneys. Because I do 
not know the precipitating facts and circumstances, I am not in 
a position to either support or criticize the particular 
reported actions of the Department and do not do so by 
testifying at this hearing. I am, however, troubled by the 
reports that at least some United States Attorneys--well 
regarded--have been asked by the Department to resign without 
any evidence of misconduct or other apparent significant cause. 
I do find that troubling--if that happened, or even the 
appearance of that happening--tends to undermine the importance 
of the office of the United States Attorney, the independence 
of the United States Attorneys, and the public's sense of 
evenhanded and impartial justice.
    Casual or unwisely or insufficiently motivated requests for 
U.S. Attorney resignations or the perception of such requests 
diminish our system of justice and the public's confidence in 
it.
    United States Attorneys are political appointees who do 
serve at the pleasure of the President. It is, thus, customary 
and expected that the U.S. Attorneys generally will be replaced 
when a new President of a different party is elected. There is 
also no question that Presidents have the power to replace any 
United States Attorney they have appointed for whatever reason 
they choose.
    In my experience and to my knowledge, however, it would be 
unprecedented for the Department of Justice or the President to 
ask for the resignations of U.S. Attorneys during an 
administration, except in rare instances of misconduct or for 
other significant cause. This is, in my view, how it should be. 
U.S. Attorneys are the chief law enforcement officers in their 
districts, subject to the general supervision of the Attorney 
General. Although political appointees, the U.S. Attorneys, 
once appointed, play a critical and non-political, impartial 
role in the administration of justice in our Federal system.
    Senator Schumer alluded to this, but in his well-known 
address to the United States Attorneys in 1940, then- Attorney 
General Robert H. Jackson, although acknowledging the need for 
some measure of centralized control and coordination by the 
Department, emphasized the importance of the role of the U.S. 
Attorneys and their independence. He said, ``The prosecutor has 
more control over life, liberty, and reputation than any other 
person in America. His discretion is tremendous....Because of 
this immense power....the post of [United States Attorney] from 
the very beginning has been safeguarded by presidential 
appointment, requiring confirmation of the Senate of the United 
States....Your responsibility in your several districts for law 
enforcement and for its methods cannot be wholly surrendered to 
Washington, and ought not to be assumed by a centralized 
Department of Justice....Your positions are of such 
independence and importance that while you are being diligent, 
strict, and vigorous in law enforcement you can also afford to 
be just.''
    In my view, the Department of Justice should guard against 
acting in ways that may be perceived to diminish the importance 
of the office of United States Attorney or of its independence. 
Taking nothing away from the career Assistant United States 
Attorneys and other career attorneys in the Justice Department, 
changing a United States Attorney invariably causes disruption 
and often loss of traction in cases and investigations. This is 
especially so in sensitive or controversial cases where the 
leadership and independence of the U.S. Attorney are often 
crucial to the successful pursuit of such matters, particularly 
in the face of criticism or political backlash.
    Replacing a U.S. Attorney can, of course, be necessary or 
part of the normal and expected process that accompanies a 
change of the political guard. But I do not believe that such 
changes should, as a matter of sound policy, be undertaken 
lightly or without significant cause.
    If U.S. Attorneys are replaced during an administration 
without apparent good cause, the wrong message can be sent to 
other U.S. Attorneys. We want our U.S. Attorneys to be strong 
and independent in carrying out their jobs and the priorities 
of the Department. We want them to speak up on matters of 
policy, to be appropriately aggressive in investigating and 
prosecuting crimes of all kinds, and wisely use their limited 
resources and broad discretion to address the priorities of 
their particular districts.
    In my opinion, United States Attorneys have historically 
served this country with great distinction. Once in office, 
they become impartial public servants, doing their best to 
achieve justice without fear or favor. I am certain that the 
Department of Justice would not want to act in such a way or 
have its actions perceived in such a way to derogate from this 
model of the non-political pursuit of justice by those selected 
in an open and transparent manner.
    Thank you very much. I will be happy to answer your 
questions.
    [The prepared statement of Ms. White appears as a 
submission for the record.]
    Senator Schumer. Thank you, Ms. White.
    Professor Levenson?

 STATEMENT OF LAURIE L. LEVENSON, PROFESSOR OF LAW, WILLIAM M. 
RAINS FELLOW, AND DIRECTOR, LOYOLA CENTER FOR ETHICAL ADVOCACY, 
           LOYOLA LAW SCHOOL, LOS ANGELES, CALIFORNIA

    Ms. Levenson. Thank you, Senator Schumer, thank you.
    Senator Specter. Thank you for the honor to be here today 
with this distinguished panel. I am here because as a former 
Assistant United States Attorney--which was the best job I ever 
had--and as a current professor of criminal law, I care deeply 
about our Federal criminal justice system.
    Does that work now?
    Senator Schumer. Yes.
    Ms. Levenson. Okay. I served in the United States 
Attorney's Office for four different United States Attorneys of 
both parties and one Interim United States Attorney. I believe 
that we, in fact, have the best prosecutorial system in the 
world, but I am here because I fear that the operation of that 
system and its reputation for excellence is jeopardized because 
of the increased politicization of the United States Attorney's 
Offices.
    As this Committee knows, the most recent concerns have 
focused on a rash of dismissals of experienced and respected 
United States Attorneys across the country. There is at least a 
strong perception by those in and outside of the United States 
Attorney's Office that this is not business as usual, that 
qualified United States Attorneys are being dismissed and their 
replacements who are being brought in do not have the same 
experience and qualifications for the position. Moreover, there 
is a deep concern that the interim appointments by the Attorney 
General will not be subject to the confirmation process; and, 
therefore, there will be no check on those qualifications, and 
the interests of the offices will be sacrificed for political 
favors.
    I want to make three basic points in my testimony today.
    One, politicizing Federal prosecutors does have a corrosive 
effect on the Federal criminal justice system. It is 
demoralizing to AUSAs. These are the best and the brightest who 
go there because they are dedicated public servants, and they 
expect their leaders to be the same. It is also, as we have 
heard, disruptive to ongoing projects. It creates cynicism 
among the public. It makes it harder in the long run to recruit 
the right people for those offices. And as Mr. McNulty said, if 
you lose the AUSAs, you lose the greatest assets of all.
    Second, although there has always been a political 
component to the selection of United States Attorneys, what is 
happening now is categorically different. Traditionally, we saw 
changeover when there was a new administration. Thus, when 
President Clinton came in, he had every right to and did ask 
for those resignations. But we have never seen what we are 
seeing today, which is in quick succession seven U.S. Attorneys 
who have excellent credentials, successful records, and 
outstanding reputations being dismissed midterm. And we have 
never seen their interim replacements, at least some of them, 
coming in with the lack of experience and qualifications and 
being put in on an interim basis indefinitely without the prior 
process that we had for evaluation.
    We all recognize that Federal prosecutors serve at the 
pleasure of the President, and the Department of Justice 
controls many of the policies and the purse strings. But it has 
been a strong tradition of local autonomy and accountability 
and continuity that has made these district U.S. Attorneys 
successful, not the arbitrary dismissals in order to give 
others a fresh start. This is an important tradition. With 
local autonomy and continuity comes a greater ability to serve 
the needs of the district.
    Third, and finally, in my opinion, the prior system--which 
allowed the Attorney General to indeed appoint the Interim U.S. 
Attorney for 120 days, and then if there is no confirmed U.S. 
Attorney, have the chief judge make an interim appointment--was 
not only constitutional but, frankly, had advantages over the 
current procedures.
    First, it is constitutional because, under the Appointments 
Clause and the Excepting Clause to that, inferior officers, 
which U.S. Attorneys are, may be appointed by the President, 
courts of law, or heads of departments. And under the Supreme 
Court's decision written by Chief Justice Rehnquist in Morrison 
v. Olson, the role of judges in appointing prosecutors has been 
held to be constitutional. In that case, which dealt with 
independent counsel, the Court cited a lower court case dealing 
with interim U.S. Attorneys and cited it favorably.
    I don't think any of the panelists today and any of the 
witnesses I heard today, in fact, challenge the 
constitutionality of having judges in the process. But as Mr. 
Gerson eloquently states in his written testimony, it is a 
question of congressional discretion.
    As a matter of discretion, I think that the prior system, 
the one that Senators Specter and Feinstein are talking about 
returning to, has strong benefits in comparison to the new 
approach.
    Under that approach, the Attorney General makes the initial 
appointment. It gives plenty of time to the Department to come 
up with a nominee and present that nominee. And then if that is 
not able to happen in a timely fashion, the chief judge starts 
making appointments. And can chief judges do this in a fair 
way? Not only can they, but they have for decades. And that is 
because in my experience, frankly, the chief judges know the 
district often better than the people thousands of miles away 
in the Department of Justice. They know the practitioners in 
the courtrooms. They care about the cases in their courtroom. 
And those judges have the credibility and confidence of the 
public in making their appointments. They appoint magistrate 
judges, and they even appoint Federal public defenders who, 
while not Government officials, nonetheless readily and 
regularly appear before those judges.
    I personally have never heard of or seen a case where a 
judge exerted any pressure on the appointment of an Interim 
U.S. Attorney or when that person appeared before them because 
he had made that appointment.
    And I think we have to compare it to the current system 
under the PATRIOT Act where only the Attorney General is 
involved in the process and those interim appointments can be 
forever and there may be no or little oversight by the Senate 
because there is not the traditional confirmation process.
    So, in conclusion, I would like to say that whether or not 
the current Attorney General's recent actions have been in good 
or bad faith, their impact has been the same. It has 
demoralized the troops. It has created the perception that 
politics is playing a greater role in Federal law enforcement. 
And it has stripped the Senate of its important role in 
evaluating and confirming the candidates.
    In my opinion the healthiest thing to do is not to rely 
just on what I am sure are the sincere promises of the 
Department of Justice officials of what they are not going to 
do with this interim power, but to put in some statutory scheme 
that allows flexibility of interim appointments but still has 
accountability. That would mean the Attorney General could make 
some interim appointments but would restore the Senate's role 
as a check and balance.
    With that, I welcome any questions from the Committee. 
Thank you.
    [The prepared statement of Ms. Levenson appears as a 
submission for the record.]
    Senator Schumer. Thank you, Professor Levenson.
    Mr. Gerson?

   STATEMENT OF STUART M. GERSON, PARTNER, EPSTEIN, BECKER & 
                    GREEN, WASHINGTON, D.C.

    Mr. Gerson. Mr. Chairman, Senator Specter, it is a great 
delight always to testify before this Committee, especially as 
an old Justice Department hand. And I will concur--my wife 
thinks the best job I have ever had is being her husband, but 
in terms of what I got paid to do, certainly being an Assistant 
United States Attorney was a terrific job.
    Let me talk to a couple of contrarian issues, but first, 
Senator Schumer, given the lateness of the hour, I ask your 
parliamentary discretion in incorporating my written testimony 
as if read herein full.
    Senator Schumer. You are indeed an old Justice Department 
hand. Thank you. Without objection, Mr. Gerson's entire 
statement will be entered into the record.
    Mr. Gerson. Thank you.
    I came here, different perhaps from anybody else, with an 
agenda, and coming last, I have the pleasure of having seen 
that agenda satisfied. I thought and think that S. 214 is a 
very bad idea. I thought that Senator Feinstein's reaction, 
while understandable, was not finely enough drawn. And 
certainly returning to the previous method of appointments 
serially of Interim United States Attorneys is vastly superior 
to what was being proposed, which was taking the executive 
branch out of an executive function. But that battle now has 
been won.
    I urge you, though, to have hearings on it because it--the 
idea of including the judiciary at all is not without problems. 
Different from Ms. Levenson, I actually know of and have 
experienced some cases where judicial intervention has proved 
ill-advised and badly directed.
    But at the end of the day, I came here to speak for the 
Constitution, and I think the Constitution has gotten a good 
break out of the day. We function best when the Executive does 
things that are committed to the executive branch, the 
legislature does things that are committed to the legislative 
branch, and the judiciary fulfills a judicial function, and 
that those roles, when stuck to, create the right kind of 
dynamic tension that the Framers had in mind and which has made 
our written Constitution the oldest written Constitution in the 
world.
    There is a certain sense of deja vu in all of this. One of 
the reasons perhaps that I was invited is I probably 
superintended the most dismissals of United States Attorneys 
that anybody ever did, and I did it accidentally when force of 
circumstances--and Senator Schumer and Senator Specter remember 
my unusual circumstance--when I ended up as the long-term 
Acting Attorney General, and that had never happened in 
American history, where a President was saddled for more than a 
few days with an Attorney General of the other party.
    There is something to be said for that, by the way, and in 
this case, it was easy to support President Clinton's decision 
to dismiss U.S. Attorneys, many of them on the same day, many 
of them that had served full terms, and many of them that were 
involved in ongoing investigations, because it was a 
presidential prerogative. And I would just note with some irony 
that I was accused by some of my colleagues of being involved 
in the termination of the United States Attorney in Arkansas 
who was in the midst of--actually, she had recused herself, but 
the office was in the midst of the Whitewater investigation, 
and that was alleged to have been a coverup on behalf of 
President Clinton.
    Of course, pressure then turned that occupation over to a 
judicially selected officer and created a situation where a 
prosecutor responsible to the judicial branch caused a great 
deal of discomfort, both to the President and to what is now 
the Democratic majority. And I urge everyone to remember that 
in looking at the role of the judiciary in a restored context 
to the one that Senator Schumer I think accurately described. 
The greatest value of the judiciary is it tells the others--not 
just the executive branch but the legislative branch to get on 
with their constitutional business and move on to permanent 
United States Attorneys with due speed. That is the value of 
the judicial part of it, not judges picking prosecutors, 
because that is an anomalous role for the judiciary.
    Let me also address one other point, and I am as great an 
admirer of Justice Jackson as anyone and have learned a lot 
about what the political branches should do and shouldn't do 
from reading Justice Jackson. But I want to say a word on 
behalf of centralization and the proper role of politics. I 
have seen much of this before. I have dealt with problems 
between Senators and Presidents for many years. Senator Specter 
and I and Senator Heinz resolved an issue in the Reagan 
administration where there was a dispute over who should be the 
United States Attorney for the Eastern District of 
Pennsylvania. These disputes are old and oftentimes difficult.
    But it should be remembered that there are many valid 
reasons why the Main Justice component of the Justice 
Department ought to be able to exert its will over United 
States Attorney's Offices in a prudent way and why, perhaps, it 
has not happened enough. I cite several instances of where I 
myself felt compelled to act and think that I did justice. I am 
of an age where some of the things I remember best perhaps did 
not happen, and I am informed that at least one of my examples 
may be flawed. Although what I stated is true, I attributed 
something to the then-U.S. Attorney for the Southern District 
of New York that perhaps I shouldn't have. I apologize to him, 
and will personally, if I have contradicted his memory. But 
several cases immediately came to mind where I know that United 
States Attorneys were not adequately attending to national 
priorities. One was in the savings and loan crisis. It was very 
clear that a centrally directed civil system was vastly 
outperforming the dispersed, decentralized way that the 
criminal cases in the savings and loan area were being handled, 
and there were many U.S. Attorneys that did not do a good job. 
And it was not until Main Justice imposed task forces on them 
that that situation improved.
    And then I pointed out, last, a situation that I had where, 
if I had listened to the United States Attorney and, indeed, to 
the chief judge of the district in which the case was being 
tried, I would have been complicit in what I thought was an act 
of racial discrimination in jury selection, albeit involving a 
minority public official of the opposite party to me. I felt it 
important to impose my will on the United States Attorney. I 
think that justice was done. It did not matter to me that it 
was criticized. It was fairly illuminated in the public record, 
and that is all that really mattered. But it was certainly 
something that was warranted no matter how many people I 
displeased and no matter what an ill effect I might have had on 
the morale in the given office.
    I don't know that morale generally in the United States 
Attorney's Offices is being challenged. I haven't seen it, and 
I do work that involves a lot of U.S. Attorneys. I subscribe to 
Mary Jo White's analysis of what a United States Attorney's 
Office ought to be. I hope that my career in retrospect will be 
reviewed and held as consistent with that tradition. I know 
that I got a great deal of support from Main Justice when I was 
a prosecutor of cases that were not generally popular, 
including the prosecution of a United States Senator, including 
being involved in one of the more controversial Watergate 
cases. And it was people like Henry Petersen, the legendary 
figure who was then the head of the Criminal Division, who 
provided a lot of support for what a rookie line Assistant U.S. 
Attorney thought needed to be done. And that tradition still is 
present.
    Somebody I got to know in my early days, the first time I 
was in the Justice Department, is Dave Margolis. You heard 
about him earlier, and I know he is a person who is familiar to 
you. It is not the practice of the Justice Department to throw 
career people to the winds of political judgments and political 
testimony, but he and so many other people are the folks who 
make this system go. They are there, whoever are United States 
Attorneys. Every office has them, and Ms. White and I have been 
honored, as has Ms. Levenson, to serve with people like that.
    So I happily conclude my remarks noting that what I came 
here to do was achieved when Senator Feinstein took her seat 
and announced what I think is a beneficial compromise.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Gerson appears as a 
submission for the record.]
    Senator Schumer. Thank you, Mr. Gerson. And we did say we 
would try to wrap up by 12:30, so I will keep my questions 
brief, and we may submit some others in writing.
    First, to Mary Jo White, what should be the standard for 
firing a presidentially appointed U.S. Attorney? What have you 
understood the historical standard to be? And is it ever wise 
or appropriate to fire a Senate-confirmed U.S. Attorney simply 
to give another person a chance?
    Ms. White. Senator, in answer to that, clearly the 
President has the power to remove any U.S. Attorney for any 
reason or no reason. But as a matter of policy and as a matter 
of precedent as well, that in my experience during an 
administration has not been done, and I do not believe should 
be done, absent evidence of misconduct or other significant 
cause. And I think we have to be careful about the slippery 
slope of performance-related, because I don't think a U.S. 
Attorney is like any other employee in the sense that it is a 
presidential appointee. It should be for serious significant 
cause. It does cause disruption. It does cause a tremendous 
appearance problem. It can disrupt cases.
    So I think the historical pattern has been, absent 
misconduct or significant cause, that you do not unseat a 
sitting U.S. Attorney.
    Senator Schumer. What you say makes a great deal of sense. 
Even assuming that some people were unhappy with the 
priorities, say, of Ms. Lam, the problems that this has 
created, I will bet the Justice Department wishes they had not 
done what they did. And we do not know the record. Maybe there 
is some smoking gun, but it is difficult to believe that given 
the external reports.
    Professor Levenson, I just want to ask you, since I read 
your testimony last night and heard it again here with care, 
did you find the statement--I will not call it an 
``admission''--of Deputy Attorney General McNulty that they 
removed the Arkansas U.S. Attorney--well, I was going to say 
``troubling,'' ``shocking,'' ``unprecedented.'' Would you 
disagree with any of those words?
    Ms. Levenson. No, I wouldn't. I mean, in some ways it was 
refreshing to hear him say outwardly that he fired him--
    Senator Schumer. You bet.
    Ms. Levenson.--not because he had done anything wrong, but 
because they wanted to give somebody else a political chance. 
That is precisely the problem. The job of U.S. Attorney should 
not be a political prize. There is too much at stake for the 
district and for the people who work in that office.
    Senator Schumer. Right. And, finally, to Mr. Gerson, in 
your time at the Justice Department, which is extensive, did 
you ever see a U.S. Attorney asked to resign for no reason 
other than to give someone else a shot?
    Mr. Gerson. Yes.
    Senator Schumer. Do you want to give us the example?
    Mr. Gerson. Well, I can't give you a name, and I have tried 
to think back over this. It was certainly suggested to 
individuals during my time at the midterm that perhaps it was 
time to do something else. I can't--
    Senator Schumer. You mean the 2-year or the 4-year?
    Mr. Gerson. The 4-year. But I note that all--it would 
seem--I don't want to be an apologist for anybody here, and I 
agree with you that the situation in San Diego is worth 
examining. I know the person who was deposed. I thought her to 
be a very fine lawyer, but I don't know any of the 
circumstances. I dealt with her in health care cases, where she 
was quite vigorous, not in immigration cases that I have 
nothing to do with. But all of the individuals involved seemed 
to me to have served 4 years and were in a subsequent term, and 
I think that is worth knowing. They had been allowed to serve 
that time.
    I guess I am taking a contrarian view, which is I don't 
want to adopt some categorical vision that there is anything 
inherently wrong with looking at an organization while it is 
healthy and making a change. I don't carry any presumption that 
if someone is doing a good job, they are automatically entitled 
to continue. On the other hand, I am a conservative in most 
every way, and I believe in least action, and I generally try 
to do something for a reason. And I don't conceive that I would 
have made a change without a reason to do so.
    Senator Schumer. A final question to you, sir. Given the 
fact that the replacement in the seven we talked about was 
probably contemplated before the day they were actually 
dismissed, isn't 120 days enough?
    Mr. Gerson. It should be. It should be, but it should be--
let me make it clear. Senator Specter and I have argued with 
each other over almost three decades now on separation 
questions. I knew him when he was the DA, so I go back a ways. 
We were both very young.
    I think that it should be a notice both to the executive 
branch and to the legislature. I don't think that we benefit 
from having interim anythings for a long period of time and 
that one ought to move expeditiously to having permanent people 
who, whether or not it is constitutionally required as a matter 
of constitutional custom, have their nominations submitted to 
the Senate and the Senate give advice and consent.
    Senator Schumer. Thank you.
    Senator Specter?
    Senator Specter. Thank you--I think--Mr. Chairman. I have 
not been in a situation like this--the Chairman wants to end 
this hearing at 12:30. It is now 12:29 and a half.
    Senator Schumer. You can speak as long as you wish.
    Senator Specter. I have not been in a situation like this 
since I was invited in 1993 to be the principal speaker at the 
commissioning of the ``Gettysburg'' in Maine. And when I looked 
at the speakers' list, I was ninth. There was an Admiral from 
Washington. There was an Under Secretary of State. There was 
the Governor. There was Senator George Mitchell. There was 
Senator Bill Cohen. And I was called upon to speak at 4:32, and 
I was told as I walked to the podium that the commissioning had 
to be at 4:36 because that is when the tide was right. So this 
brings back fond recollections to be called upon after all the 
time has expired.
    Senator Schumer. Well, I just want to remind my colleague, 
a rising tide lifts all boats.
    [Laughter.]
    Senator Specter. I only wish there were a rising tide in 
Washington.
    But we have the power in the Senate to change the clock. I 
was on the Senate floor one day when we had to finish activity 
by midnight, and we stopped the clock at 10 minutes to 12.
    Senator Schumer. I have heard about that.
    Senator Specter. Until we finished our work. But on to the 
serious questions at hand for no more than 3 minutes.
    Mr. Gerson, it has been a very important subject today as 
to what was a person's best job. Now, you have testified that 
your wife thought being her husband was your best job. But it 
seems to me that begs the question. Did you think that was your 
best job?
    Mr. Gerson. I darn well better.
    Senator Specter. Well, that clears the air on that.
    In Morrison v. Olson, the appointment of a special 
prosecutor was up, and the special prosecutor statute provided 
that the appointing judge could not preside over any case in 
which the special prosecutor was involved. Ms. White, do you 
think we might bring that rule to bear so that if we have the 
chief judge make the appointment after 120 days, the prosecutor 
ought not to be able to appear before that judge?
    Ms. White. I certainly think that is wise, particularly 
from an appearance point of view, whether dictated as a matter 
of constitutional law. And, again, I did not go into the 
subject of the best mechanism for appointing Interim U.S. 
Attorneys because I think the solution that seems to be on the 
table, not perfect, at least in my view, is probably the best 
one, achieving the best balance, not without its issues, 
though.
    Ms. Levenson. Professor Levenson, don't you think it would 
be a good idea when there is a change of administration to at 
least make some sort of an inquiry as to whether the firing of 
all--there were only 92 U.S. Attorneys fired by Attorney 
General Gerson, as I understand it. I understand they kept 
Chertoff in Jersey at the request of Senator Bradley--not that 
that wasn't political. But don't you think there ought to be 
some inquiry as to what is happening and whether there is some 
politically sensitive matter so that you just don't have a 
carte blanche rule? And--
    Ms. Levenson. I do--
    Senator Specter. Well, wait a minute. I haven't finished my 
question. And don't you think that Attorney General Gerson 
acted inappropriately in firing all those people when Clinton 
took office? After all, Ruckelshaus resigned and Richardson 
resigned; they wouldn't fire Archibald Cox. Do you think that 
Gerson was the Bork of his era?
    [Laughter.]
    Ms. Levenson. I think the record speaks for itself, 
Senator.
    Senator Specter. He has already had his turn. I want an 
answer, Professor Levenson.
    Just kidding, just kidding.
    How about it, Mr. Gerson, former Attorney General Gerson?
    Mr. Gerson. Well, I don't criticize Mr. Bork either. I 
mean, the buck had to stop at some point in order to have a 
Justice Department. But there is a difference. I also think 
that the process worked well even though it had a negative--
    Senator Specter. It had to stop at some point to have 
justice, you say?
    Mr. Gerson. To have a Justice Department. Somebody has got 
to run the place. I don't think anybody--
    Senator Specter. What was wrong with Cox?
    Mr. Gerson. Well, I don't think anything was wrong with 
Cox, and I think the upshot--I think the system worked. I mean, 
ultimately, the wrongdoing of that administration was exposed 
and the President resigned in the wake of a continuation of the 
special prosecutor's function. You can't escape it. And I think 
that is the point that good oversight makes and why, when all 
the political branches--both political branches do their job, 
justice will be served.
    Senator Specter. Well, I think this question has been very 
thoroughly aired. Very thoroughly aired. I can't recall a 3-
hour-and-36-minute hearing under similar circumstances, and I 
await the day when Chairman Schumer is Chairman of the full 
Committee to see us progress in our work.
    Thank you all very much.
    Senator Schumer. Thank you, and I want to thank Senator 
Specter and all three witnesses for their excellent testimony. 
I think it has been an excellent hearing, and I have a closing 
statement that I will submit for the record.
    Thank you.
    [Whereupon, at 12:36 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]
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