[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
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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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