[Senate Hearing 110-495]
[From the U.S. Government Publishing Office]
S. Hrg. 110-495
PRESERVING PROSECUTORIAL INDEPENDENCE: IS THE DEPARTMENT OF JUSTICE
POLITICIZING THE HIRING AND FIRING OF U.S. ATTORNEYS?
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HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
MARCH 6, MARCH 29, MAY 15, JUNE 5, JULY 11, AND AUGUST 2, 2007
__________
Serial No. J-110-14
__________
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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MARCH 6, 2007
STATEMENTS OF COMMITTEE MEMBERS
Page
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 28
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 5
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts, prepared statement.............................. 57
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona.......... 7
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 11
prepared statement........................................... 65
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 1
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 3
WITNESSES
Cummins, H.E. ``Bud'', III, former U.S. Attorney, Eastern
District of Arkansas, Little Rock, Arkansas.................... 16
Iglesias, David C., former U.S. Attorney, District of New Mexico,
Albuquerque, New Mexico........................................ 13
Lam, Carol, former U.S. Attorney, Southern District of
California, San Diego, California.............................. 9
McKay, John, former U.S. Attorney, Western District of
Washington, Seattle, Washington................................ 15
SUBMISSIONS FOR THE RECORD
Bogden, Daniel G., Esq., former U.S. Attorney for the District of
Nevada, Reno, Nevada, letter................................... 53
Cummins, H.E. ``Bud'', III, former U.S. Attorney, Eastern
District of Arkansas, Little Rock, Arkansas, e-mail............ 54
Domenici, Hon. Pete V., a U.S. Senator from the State of New
Mexico, statement.............................................. 55
Kent, Donald H., Deputy Assistant Secretary, Office of
Legislative and Intergovernmental Affairs, Department of
Homeland Security, Washington, D.C., letter.................... 59
Lam, Carol, former U.S. Attorney, Southern District of
California, San Diego, California; H.E. ``Bud'' Cummins, III,
former U.S. Attorney, Eastern District of Arkansas, Little
Rock, Arkansas, David C. Iglesias, former U.S. Attorney,
District of New Mexico, Albuquerque, New Mexico; John McKay,
former U.S. Attorney, Western District of Washington, Seattle,
Washington, joint statement.................................... 62
Moschella, William E., Assistant Attorney General, Department of
Justice, Washington, D.C., letter and attachment............... 67
Wilson, Hon. Heather, a Representative in Congress from the State
of New Mexico, statement....................................... 72
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MARCH 29, 2007
STATEMENTS OF COMMITTEE MEMBERS
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 73
prepared statement........................................... 199
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 75
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 83
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennshylvania.................................................. 81
WITNESS
Sampson, D. Kyle, former Chief of Staff to the Attorney General
of the United States, Washington, D.C.......................... 77
QUESTION AND ANSWER
Response of D. Kyle Sampson to a question submitted by Senator
Brownback...................................................... 177
SUBMISSIONS FOR THE RECORD
Associated Press, Lara Jakes Jordan, article..................... 178
Fasano, Adele J., Director, Field Operations, U.S. Customs and
Border Protection, letter...................................... 180
Fridman, Daniel, Counsel to the Depurty Attorney General,
Department of Justice, memorandum.............................. 183
Hertling, Richard A., Acting Assistant Attorney General,
Department of Justice, letters and attachments................. 189
Sampson, D. Kyle, former Chief of Staff to the Attorney General
of the United States, Washington, D.C., statement and e-mails.. 201
Washington Post, March 22, 2007, article......................... 207
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MAY 15, 2007
STATEMENTS OF COMMITTEE MEMBERS
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 258
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 209
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 211
WITNESS
Comey, James B., former Deputy Attorney General, Department of
Justice, Washington, D.C....................................... 213
QUESTIONS AND ANSWERS
Responses of James B. Comey to questions submitted by Senators
Feingold, Leahy and Schumer.................................... 241
SUBMISSIONS FOR THE RECORD
Feingold, Hon. Russell, D., Hon. Charles E. Schumer, Hon. Edward
M. Kennedy, and Hon. Richard J. Durbin, United States Senate,
Washington, D.C., joint letter................................. 254
Gonzales, Alberto R., Attorney General of the United States,
Department of Justice, Washington, D.C., letter................ 257
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JUNE 5, 2007
STATEMENT OF COMMITTEE MEMBER
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts, prepared statement.............................. 371
Leahy, Hon. Patrick J., a U.S Senator from the State of Vermont.. 261
prepared statement........................................... 374
WITNESSES
Graves, Todd, former U.S. Attorney, Western District of Missouri,
Kansas City, Missouri.......................................... 299
Schlozman, Bradley J., Associate Counsel to the Director,
Executive Office for U.S. Attorneys, former Interim Attorney
for the Western District of Missouri, former Principal Deputy
Assistant Attorney General and Acting Assistant Attorney
General, for the Civil Rights Division, Department of Justice,
Washington, D.C................................................ 263
QUESTIONS AND ANSWERS
Responses of Bradley Schlozman to questions submitted by Senators
Feinstein, Kennedy, Leahy and Specter.......................... 312
SUBMISSIONS FOR THE RECORD
Graves, Todd, former Attorney, Western District of Missouri,
Kansas City, Missouri, statement and attachment................ 355
Schlozman, Bradley J., Associate Counsel to the Director,
Executive Office for U.S. Attorneys, former Interim Attorney
for the Western District of Missouri, former Principal Deputy
Assistant Attorney General and Acting Assistant Attorney
General, for the Civil Rights Division, Department of Justice,
Washington, D.C., statement and attachment..................... 376
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JULY 11, 2007
STATEMENTS OF COMMITTEE MEMBERS
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa. 393
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Masschusetts, prepared statement............................... 449
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 387
prepared statement........................................... 451
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 392
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 389
WITNESS
Taylor, Sara M., former Deputy Assistant to the President,
Director, Political Affairs, The White House, Washington, D.C.. 394
QUESTIONS AND ANSWERS
Responses of Sara M. Taylor to questions submitted by Senators
Biden, Schumer and Leahy....................................... 435
SUBMISSION FOR THE RECORD
Taylor, Sara M., former Deputy Assistant to the President,
Director, Political Affairs, The White House, Washington, D.C.,
statement and attachments...................................... 455
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AUGUST 2, 2007
STATEMENTS OF COMMITTEE MEMBERS
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 459
prepared statement........................................... 509
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 462
WITNESS
Jennings, J. Scott, Special Assistant to the President, Deputy
White House Political Director, The White House, Washington,
D.C............................................................ 464
QUESTIONS AND ANSWERS
Responses of J. Scott Jennings to questions submitted by Senators
Biden and Leahy................................................ 492
SUBMISSION FOR THE RECORD
Jennings, J. Scott, Special Assistant to the President, Deputy
White House Political Director, The White House, Washington,
D.C., statement and attachments................................ 499
PRESERVING PROSECUTORIAL INDEPENDENCE: IS THE DEPARTMENT OF JUSTICE
POLITICIZING THE HIRING AND FIRING OF U.S. ATTORNEYS?--PART II
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TUESDAY, MARCH 6, 2007
U.S. Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, pursuant to notice, at 10:02 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Charles E.
Schumer presiding.
Also present: Senators Leahy, Feinstein, Feingold, Schumer,
Cardin, Whitehouse, Specter, Kyl, Sessions, and Graham.
Also present: Carol Lam, Former U.S. Attorney, Southern
District of California; David C. Iglesias, Former U.S.
Attorney, District of New Mexico; John McKay, Former U.S.
Attorney, Western District of Washington; and H.E. ``Bud''
Cummins, III, Former U.S. Attorney, Eastern District of
Arkansas.
OPENING STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR
FROM THE STATE OF NEW YORK
Senator Schumer. This hearing will come to order. The
procedure we'll use today, because we do have limited time, is
I'll give an opening statement, Senator Specter, Senator
Feinstein, because of her active role here, and one other, if
someone is here from the Minority side.
We will then have one opening statement. Carol Lam is
representing the four U.S. Attorneys in the opening statement.
Then we will have 10-minute rounds and we will try to get two
rounds in. I want to thank all of you for attending.
Four weeks ago, this Committee had its first hearing to
investigate the unprecedented firing of more than half a dozen
Presidentially appointed U.S. Attorneys. At that time I said I
was deeply concerned about the politization of the Justice
Department, and about allegations that our top prosecutors were
victim of a political purge.
Since our last hearing, my concerns have only grown, public
confidence has only diminished, and the plot has only
thickened. Almost every day it seems there is another twist,
turn, or revelation that calls into question the Justice
Department's abrupt and unprecedented firing of at least eight
of our country's top Federal prosecutors.
Federal prosecutors are supposed to be heroic soldiers in
the fight against crime and corruption, not hapless casualties
of political warfare. Federal prosecutors are supposed to be
bedrock, neutral servants of the law, not temporary tools in
the service of some political end.
And yet, it seems all too likely that some in the
administration were seeking to turn U.S. Attorneys into
political operatives. What are we to think when there is
virtually no documentary evidence of any performance problem on
the part of the fired U.S. Attorneys?
What are we to think when there are allegations of
retaliation based on cold political calculations leveled by
Federal prosecutors of unimpeachable integrity? What are we to
think when prosecutors appear to have been fired for no reason,
or worse, as part of a political vendetta? Our work, it seems,
is far from over and may only be just beginning.
Let me take a minute to recap what has transpired over the
past month. The Deputy Attorney General admitted, in a stunning
revelation, that one U.S. Attorney who is here today, Bud
Cummins, had not been fired for any performance-related reason,
but only to provide an opportunity to an inexperienced former
aide to Karl Rove.
Second, a week after our hearing we received a closed-door
briefing from the Department of Justice. That briefing was
supposed to put our minds at ease, but instead left many of us
scratching our heads. The argument that all of the remaining
U.S. Attorneys were fired for performance-related reasons
simply does not add up when you read their statements.
Then a week after that briefing, we actually received the
actual performance evaluations of the six fired U.S. Attorneys.
Those evaluations showed unequivocally that every single
prosecutor received an ``Excellent'' evaluation. That left us
shaking our heads.
Indeed, just last 1 week, one fired U.S. Attorney, David
Iglesias from New Mexico, who is here today, was described by
former Deputy Attorney General Jim Comey, not as an
underperformer, but as, rather, ``one of the best we had''.
Yesterday, Michael Battle, head of the Executive Office of
the U.S. Attorneys and the official who personally called to
fire a half-dozen U.S. Attorneys last December 7th, announced
his own resignation. Was he fired? Did he resign in protest? We
do not know yet.
Today, the McClatchie newspapers report that at least one
of the fired U.S. Attorneys believes he was threatened with
retaliation by a top Justice Department official if he
complained publicly or came to testify before Congress.
Also today, the New York Times reports that another U.S.
Attorney who has not been mentioned in our process before,
another U.S. Attorney in Baltimore, may have been fired for
political reasons in 2004.
Most disturbing, of course, are the shocking allegations
that Mr. Iglesias, far from being fired for performance
reasons, was dismissed because he didn't ``play ball'' after
two Members of Congress allegedly tried to pressure him into
rushing indictments against a local Democrat just days before
the election.
We don't have answers to any of these questions yet, but
this hearing is intended to get us there. We will not rest
until we get the answers we seek and the American people get
the explanations they deserve.
Here are the questions that we are concerned with, among
others: was any U.S. Attorney removed because he or she was
bringing too much heat on Republican elected officials, as in
the case of Carol Lam?
Was any U.S. Attorney removed because he or she was not
bringing enough heat on Democratic elected officials, as in the
case of David Iglesias?
Who in the administration was responsible for this ill-
advised purge? Was the purge orchestrated solely by the
Department of Justice or was the White House involved?
In our efforts to get answers to these questions we have
now heard twice from the Department of Justice. Today, we begin
to hear the other side of the story. We have four extraordinary
witnesses here, four of the fired U.S. Attorneys.
On behalf of the entire Committee I want to thank the
witnesses for coming here today. I know it is neither easy, nor
pleasant. I know that most of you would wish that these
circumstances had not occurred.
As all four of you know, the issuance of subpoenas is on
the Senate Judiciary Committee agenda for this Thursday, so
refusing to come here this morning would have been just
delaying the inevitable.
We will get, I trust, important information today and I
expect today's testimony will generate more questions for the
Department of Justice, which we will pursue. If so, we will not
hesitate to call as many Department officials before us as is
necessary to get to the bottom of this.
There is one thing, however, we should do right now without
waiting for any more testimony: we should pass the bill that
Senator Feinstein and Senator Specter have authored, which I
have co-sponsored, to provide a check and a balance on the U.S.
Attorney's power to name interim U.S. Attorneys.
Twice now that common-sense reform has been blocked. I
can't understand that, especially since no Senator will even
admit to knowing that the change was made in the first place.
So we'll keep fighting to get this legislation passed.
Meanwhile, we will be vigilant in asking questions and
conducting oversight. That's part of our job.
I look forward to all the testimony and call on my
colleague, Senator Specter, who has been fully cooperative in
us having these hearings.
Senator Specter?
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Senator Specter. Thank you, Mr. Chairman. I agree with you
totally that if the allegations are correct, that there has
been serious misconduct in what has occurred with the
termination of these U.S. Attorneys. I think it is very
important to withhold judgment on the allegations until we have
worked through this very complex Senate hearing.
I have first-hand experience with what a prosecuting
attorney does, having been the District Attorney of
Philadelphia, and before that an Assistant District Attorney, I
have been on that firing line for some 12 years.
The prosecuting attorney, accurately, you said, has the
keys to the jail. The prosecuting attorney has a quasi-judicial
function, part judge to decide whether cases ought to be
brought, and once having made that decision, to be an advocate,
so that people in the position of U.S. Attorneys have to be
allowed to do their job in an unfettered way.
Now, as you accurately said, Mr. Chairman, two Members of
Congress allegedly tried to pressure Mr. Iglesias, and I think
we need to hear from Mr. Iglesias and we need to find out what
is the other side of the conversation.
Both of those Members of Congress have issued statements
denying that there was pressure, so let's keep it in
perspective, as you say, of an allegation and let's find out
what was said. And if there is a conflict in testimony, that's
a matter for this Committee to determine.
When you have the allegation of a threat by a Department of
Justice official against some individual if that individual
testified, that may well be obstruction of justice. You can't
threaten someone and stop them from testifying in a duly
convened procedure. That's obstruction of justice. Now, that's
a crime and obviously a matter of enormous seriousness.
When the reference was made to the New York Times story
this morning by Senator Schumer about the Baltimore prosecutor,
that's another matter which we have to inquire into. What
frequently happens in matters like this, once something
surfaces, other people may come forward, putting having the
matter before the public in analogous circumstances.
But the story which appears in the New York Times is a
complicated story. It is a story which may show inappropriate
political pressure for the Baltimore attorneys pursuing an
investigation relating to gaming, which implicated subordinates
of the Governor, or it may be explained by what the story
refers to as his ``pressure tactics'' and ``performance
rating''. So there are a lot of nuances, and that's only a
newspaper story and just the beginning of what we have to
inquire into.
I think it is important to note at the outset that the
President does have the authority to replace U.S. Attorneys.
May the record show that some of the replaced U.S. Attorneys
nodded in agreement with that.
Senator Schumer. The record will show.
Senator Specter. The record will show we questioners,
perhaps even prosecutors, use that technique from time to time
to move ahead on what is occurring. But the authority of the
President to replace U.S. Attorneys does not mean that you can
replace a U.S. Attorney if the U.S. Attorney is moving into
sensitive ground, or if the U.S. Attorney is being replaced
because of being too close to political leaders, or if
political leaders are asking for the U.S. Attorney. That's an
improper matter.
With respect to Ms. Lam, the suggestion was made that there
may have been a termination because of her successful
prosecution of former Congressman Duke Cunningham, and it may
go to other matters which she was bringing. This may implicate
the question of pending investigations.
That may be something which this Committee will have to
take up, not in a public session. But we have authority to look
into pending investigations, especially when there are
collateral matters involved such as the one here.
So we have a weighty responsibility so we do not tamper
with the established right of the President to replace U.S.
Attorneys, but deal with the question of whether they're being
replaced because they're doing a job which is politically
sensitive, or going after corruption, or being replaced for
some improper motive.
One concluding comment. That is, it would be helpful if the
Department of Justice would be a little more sensitive about
what they're doing. To replace seven U.S. Attorneys all at once
is not exactly a discrete thing to do.
To replace U.S. Attorneys without having a record in detail
for the reasons which could be responded to on what is an
obvious Judiciary Committee inquiry is something that the
Department of Justice ought to take into account in terms of
their future conduct.
Mr. Chairman we are starting on a pretty long road and we
are dealing with many individuals, two Members of Congress and
a former Governor, and many other individuals who have been
implicated in the public press, whose reputations are on the
line. We share a joint determination to find out exactly what
happened as best we can.
We're a very busy Committee and this may take a lot of time
and a lot of hearings. But if we are going to find out if there
was wrongdoing, and if we're going to clear people who have
been publicly identified with alleged wrongdoing one way or
another, we've got a big job to do in addition to all the other
responsibilities we have in this committee, and in the
Congress.
Thank you.
Senator Schumer. Thank you, Senator Specter.
Senator Feinstein?
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Feinstein. Thank you very much, Senator Schumer and
Senator Specter. Thank you both for your leadership on this.
I learned on January the 6th that several U.S. Attorneys
had been told to resign by a date certain in mid-January and
without cause. I was told that this was highly unusual and had
never happened before, and that I should look into it.
While early rumors were circulating, I began to ask
questions and expressed concern. However, as I did this the
administration pushed back hard. Almost immediately I received
an angry call from the Attorney General, who expressed his
strong displeasure with what I was saying and told me I clearly
had my facts wrong.
On January 18th, the Attorney General came before this
Committee and vigorously denied that the firings were
politically motivated. He stated, ``I would never, ever make a
change in the U.S. Attorney position for political reasons.''
Yet, almost immediately the Department had to start
backtracking. Soon it became evident that Mr. Cummins from
Arkansas, here today, was asked to resign for no other reason
than to put in place a politically connected young lawyer, Tim
Griffin. However, at that point the Justice Department
maintained that Bud Cummins was the only victim of politics.
On February 6th, Deputy Attorney General Paul McNulty
stressed that this was an isolated case by saying before the
Judiciary Committee, ``When I hear you talk about the
politicizing of the Department of Justice it's like a knife in
my heart.'' He went on to say that the others were asked to
resign for ``performance reasons.''
However, here we are, a month later, and again the
Department is changing its tune. Now DOJ has begun to argue
that these U.S. Attorneys did not follow Department priorities
and therefore main Justice had concerns about their policy
decisions.
This Saturday in the Washington Post, the Department of
Justice stated that ``the ousters were based primarily on the
administration's unhappiness with the prosecutors' policy
decisions.''
However, every witness sitting before this Committee today
was judged by a team of independent evaluators to have a
strategic plan and appropriate priorities to meet the needs of
the Department and their districts. Once again, the Department
of Justice's answers don't hold up.
The Department has used the fact that I wrote a letter on
June 15th to the Attorney General concerning the San Diego
region, and in that I asked some questions, what are the
guidelines for the U.S. Attorney, Southern District of
California, how do these guidelines differ from other border
sections nationwide. I asked about immigration cases.
Here is the response I got, under cover of August 23rd in a
letter signed by Bill Moschella. And I'd ask that both these
letters be added to the record, if I might.
Senator Schumer. Without objection.
Senator Feinstein. Thank you.
``That office,'' referring to Ms. Lam's office, ``is
presently committing fully half of its Assistant U.S. Attorneys
to prosecute criminal immigration cases. Prosecutions for alien
smuggling in the Southern District under U.S.C. Section 1324
are rising sharply in fiscal year 2006.
As of March 2006, the halfway point in the fiscal year,
there were 342 alien smuggling cases filed in that
jurisdiction. This compares favorably with the 484 alien
smuggling prosecutions brought there during the entirety of
fiscal year 2005.'' The letter goes on to essentially say that
Ms. Lam is cooperating, that they have reviewed it, the
Department is satisfied.
Surprisingly, the administration also claimed on Saturday
that a few days before the firings, administration officials
began the traditional process of calling lawmakers in the
affected States to inform them about the decisions and to
gather early input on possible successors. Two of those U.S.
Attorneys were in my State.
This, too, is not accurate. I don't know who the
administration called, but it wasn't me. And I checked, and it
wasn't any of the other home State Democratic Senators. Every
week since I first raised the issue, more information has
continued to come out and, amazingly, each revelation is more
shocking than the one before.
I think this hearing is extremely important. I think we
need to get to the bottom of what precipitated the calls in
December, and I think we need to ensure that this kind of
politization of U.S. Attorneys Offices does not happen ever
again.
For over 150 years, the process of appointing interim U.S.
Attorneys has worked well, with virtually no problems. Now,
just 1 year after receiving unchecked authority in a little
known section added to the Patriot Act last spring, the
administration has significantly abused its discretion. If
there ever was any question why our system of government relies
on checks and balances, I think that question has been
answered.
The Judiciary Committee has reported out a bill with
bipartisan support that would allow the Attorney General to
appoint interim U.S. Attorneys, however, it would limit that
time to 120 days. That is to create an incentive to go to the
Senate for confirmation.
Then if that appointment had not been made, the appointing
power would resort to a District Court judge, who would have
the power to replace an interim U.S. Attorney. This is exactly
the way the law was before it was changed in the Patriot Act.
I would like to point out that there are currently 13
vacancies pending; there are only 3 nominees. Why is the
administration leaving these positions in that manner? By
returning the law to what it was prior to reauthorization of
the Patriot Act, the balance of power is returned and an
important incentive is created to ensure the administration
will work with the Senate to get the best candidate confirmed.
That bill is on the floor right now. That bill can be
passed by the U.S. Senate tomorrow or the next day. That bill
was heard in this committee. That bill was reported out by a
majority of this committee. I really urge that we pass this
bill and take that first step to assuring that this can never
happen again.
I thank you.
Senator Schumer. Thank you, Senator Feinstein.
And Senator Kyl wishes to make a brief statement.
STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF
ARIZONA
Senator Kyl. Thank you, Mr. Chairman.
Just one brief comment about the legislation Senator
Feinstein just mentioned. I have one objection to that bill and
would like the opportunity to offer an amendment to it.
If I have that opportunity to offer an amendment, whether
it's passed or not, would have no objection to the bill
proceeding. The amendment is simply to remove the Federal
District Courts from the nomination process.
I'd be curious about the views of the panel, all of whom
are distinguished lawyers with a lot of experience, as to
whether it is a good idea for Federal District judges to be
appointing U.S. Attorneys or whether it is preferable to have
those appointments from the executive branch.
Whether 120 days is the right period of time or not, it
seems to me that we have to require that the President or the
executive branch do the appointing, or nominating, I should
say, and the Senate do the confirming, and to take this out of
the realm of the courts.
I appreciate the fact that that's the way it was done for
about 100 years in our history, but it hasn't been a
particularly good experience. In any event, it's an opportunity
for us to correct it now. So, it seems to me that at least we
ought to have an opportunity to offer an amendment to that
effect.
Second, there's been a suggestion here that somehow or
other the removal of U.S. Attorneys was done for the purpose of
replacing. Except in one situation, the situation with Mr.
Cummins, the administration has denied that that's the case.
It seems to me that since the administration has not come
forward with nominations to replace the individuals who were
removed, it suggests that that was not the reason for the
removal. Therefore, this effort to change the statute in order
to prevent an abuse, is to prevent an abuse that did not occur.
So there's a disconnect between the remedy here, which is
to change the statute, and the allegation that somehow this was
done for political purposes, to replace one person with
another. As I said, except for the case in Arkansas, that's
simply not true.
Senator Schumer. Thank you, Senator Kyl.
Now we'll proceed to introduce and hear from our witnesses.
Carol C. Lam served as U.S. Attorney for the Southern District
of California from November, 2002 until this year. She's a
graduate of Yale University and Stanford Law School, served as
a law clerk to Judge Irving R. Kaufman on the Second Circuit
Court of Appeals.
After clerking, she returned to the West Coast to become an
Assistant U.S. Attorney in San Diego, where she was the
recipient of many Department of Justice Special Achievement
awards. She was named Superior Court judge in 2000, and is
currently the senior vice president and legal counsel for
Qualcomm, Inc.
David C. Iglesias served as U.S. Attorney for the District
of New Mexico from 2001 until recently, and has had a
distinguished career as a U.S. Navy Reserve officer, and
captain in the Judge Advocate General's Corps.
He earned his B.A. at Wheaton College in Illinois and his
J.D. at the University of New Mexico School of Law. While
serving as a lieutenant in the Navy, he was criminal defense
counsel in the court-martial that served as the basis for the
play and film, ``A Few Good Men''. Mr. Iglesias was, of course,
the inspiration for the Tom Cruise character in that movie.
John McKay was named U.S. Attorney for the Western District
of Washington State in 2001, served there until recently. He's
a graduate of the University of Washington, and began his
professional career right here on Capitol Hill as a legislative
assistant to Congressman Joel Pritchard of Washington State.
After earning his J.D. at Creighton University's School of
Law, he returned to Seattle to work in private practice,
eventually as Chief Litigation Partner at the firm of
Cairncross & Hempelmann.
Mr. McKay was a White House fellow, working as Special
Assistant to the Director of the FBI in 1989, and later
continued his work as a distinguished public servant by serving
as president of the Legal Services Corporation. He's currently
Visiting Professor of Law at Seattle University's School of
Law.
And H.E. ``Bud'' Cummins, III served as U.S. Attorney for
the Eastern District of Arkansas from 2001 until 2006, in
December. He earned his undergraduate degree from the
University of Arkansas in 1981, and his J.D. from the
University of Arkansas Law School.
Mr. Cummins clerked for the U.S. Magistrate Judge John
Forster, Jr., and also for Chief U.S. District Judge in the
Eastern District of Arkansas, Judge Stephen M. Reasoner.
He then entered private practice in Little Rock before
serving as Chief Legal Counsel to Governor Mike Huckabee.
Currently, Mr. Cummins is a consultant to a biofuel company.
Now we will administer the oath. Will all witnesses please
stand to be sworn? Raise your right hand.
[Whereupon, the witnesses were duly sworn.]
Senator Schumer. Please be seated.
Ms. Lam, you may proceed.
JOINT STATEMENT OF CAROL LAM, FORMER U.S. ATTORNEY, SOUTHERN
DISTRICT OF CALIFORNIA, SAN DIEGO, CALIFORNIA; DAVID C.
IGLESIAS, FORMER U.S. ATTORNEY, DISTRICT OF NEW MEXICO,
ALBUQUERQUE, NEW MEXICO; JOHN MCKAY, FORMER U.S. ATTORNEY,
WESTERN DISTRICT OF WASHINGTON, SEATTLE, WASHINGTON; AND H.E.
``BUD'' CUMMINS, III, FORMER U.S. ATTORNEY, EASTERN DISTRICT OF
ARKANSAS, LITTLE ROCK, ARKANSAS
Ms. Lam. Thank you. Good morning, Mr. Chairman and members
of the committee. My name is Carol Lam, and until recently, I
was the U.S. Attorney for the Southern District of California.
In the interest of conserving time, I will be making
introductory remarks on behalf of all the former U.S. Attorneys
before you on the panel today, with whom I have the great
privilege of serving as a colleague from the following
districts: Bud Cummins, Eastern District of Arkansas; David
Iglesias, District of New Mexico; and John McKay, Western
District of Washington.
Each of us was subpoenaed to testify this afternoon on the
same subject matter before a Subcommittee of the House
Committee on the Judiciary, and we were informed that in short
order we would be receiving subpoenas to testify before this
committee. So, we are making our appearances before both
committees today.
We respect the oversight responsibilities of the Senate
Committee on the Judiciary over the Department of Justice, as
well as the important role this Committee plays in the
confirmation process of U.S. Attorneys.
Each of us is very appreciative of the President and our
home State Senators and Representatives who entrusted us 5
years ago with appointments as U.S. Attorneys.
The men and women in the U.S. Attorney's Offices in 94
Federal judicial districts throughout the country have the
great distinction of representing the United States in criminal
and civil cases in Federal court.
They are public servants who carry voluminous case loads
and work tirelessly to protect the country from threats, both
foreign and domestic. It was our privilege to lead them and to
serve with our fellow U.S. Attorneys throughout the country.
As U.S. Attorneys, our job was to provide leadership in our
districts, to coordinate Federal law enforcement, and to
support the work of Assistant U.S. Attorneys as they prosecuted
a wide variety of criminals, including drug traffickers,
violent offenders, and white-collar defendants.
As the first U.S. Attorneys appointed after the terrible
events of September 11, 2001, we took seriously the commitment
of the President and the Attorney General to lead our districts
in the fight against terrorism.
We not only prosecuted terrorism-related cases, but also
led our law enforcement partners at the Federal, State, and
local levels in preventing and disrupting potential terrorist
attacks.
Like many of our U.S. Attorney colleagues across this
country, we focused our efforts on international and interstate
crime, including the investigation and prosecution of drug
traffickers, human traffickers, violent criminals, and
organized crime figures.
We also prosecuted, among others, fraudulent corporations
and their executives, criminal aliens, alien smugglers, tax
cheats, computer hackers, and child pornographers.
Every U.S. Attorney knows that he or she is a political
appointee, but also recognizes the importance of supporting and
defending the Constitution in a fair and impartial manner that
is devoid of politics. Prosecutorial discretion is an important
part of the U.S. Attorney's responsibilities.
The prosecution of individual cases must be based on
justice, fairness, and compassion, not political ideology or
partisan politics; we believed that the public we served and
protected deserved nothing less.
Toward that end, we also believed that within the many
prosecutorial priorities established by the Department of
Justice, we had the obligation to pursue those priorities by
deploying our office resources in the manner that best and most
efficiently addressed the needs of our districts.
As Presidential appointees in particular geographic
districts, it was our responsibility to inform the Department
of Justice about the unique characteristics of our districts.
All of us were long-time, if not lifelong, residents of the
districts in which we served.
Some of us had many years of experience as Assistant U.S.
Attorneys, and each of us knew the histories of our courts, our
agencies, and our offices. We viewed it as a part of our duties
to engage in discussion about these priorities with our
colleagues and superiors at the Justice Department.
When we had new ideas or differing opinions, we assumed
that such thoughts would be welcomed by the Department and
could be freely and openly debated within the halls of that
great institution.
Recently, each of us was asked by Department of Justice
officials to resign our posts. Each of us was fully aware that
we served at the pleasure of the President and that we could be
removed for any, or no, reason. In most of our cases, we were
given little or no information about the reason for the request
for our resignations.
This hearing is not a forum to engage in speculation, and
we decline to speculate about the reasons. We have every
confidence that the excellent career attorneys in our offices
will continue to serve as aggressive, independent advocates of
the best interests of the people of the United States, and we
continue to be grateful for having had the opportunity to serve
and to have represented the United States during challenging
and difficult times for our country.
While the members of this panel all agree with the views I
have just expressed, we will be responding individually to the
committee's questions, and those answers will be based on our
own individual situations and circumstances.
The members of the panel today regret the circumstances
that have brought us here to testify. We hope those
circumstances do not in any way call into question the good
work of the U.S. Attorney's Offices we led and the independence
of the career prosecutors who staffed them.
And while it is never easy to leave a position one cares
deeply about, we leave with no regrets because we served well
and upheld the best traditions of the Department of Justice.
We welcome the questions of the Chair and members of the
committee. Thank you.
[The prepared joint statement of Ms. Lam, Mr. Iglesias, Mr.
McKay, and Mr. Cummins appears as a submission for the record.]
Senator Schumer. Thank you, Ms. Lam. I know the statement
is on behalf of your three colleagues.
Before we get to questions, our Chairman, who has been
extremely supportive of what this Committee is doing with these
hearings, will make an opening statement.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Chairman Leahy. Well, thank you very much, Senator Schumer.
Thank you for chairing this hearing.
There have been very few things I have heard over the past
that has concerned me as much as this, as much as these sudden
firings. I felt very privileged to have been a State
prosecutor, not a Federal prosecutor. Many prosecutors serve on
this committee, Senator Specter, and others.
I remember when Senator Feinstein and others first came to
me and talked about it. At first, I thought there had to be
some mistake. But these actions we've heard of from the
administration, I really believe they threaten to undermine the
effectiveness and professionalism of U.S. Attorney's Offices
around the country.
Not since the Saturday night massacre when I was a young
lawyer, when President Nixon forced the firing of the Watergate
prosecutor, Archibald Cox, that we witnessed anything of this
magnitude. The calls from a number of U.S. Attorneys across the
country last December who were forced to resign were
extraordinary. I don't know of any precedent for it.
What is more disconcerting is, unlike during Watergate,
there is no Elliott Richardson or William Ruckelshouse seeking
to defend the independence of the prosecutors. Any of us who
have ever been a prosecutor know, independence is the most
important thing you have.
But instead, in this case the Attorney General, the Deputy
Attorney General, the Executive Office of the U.S. Attorney,
and the White House all collaborated in these actions. I think
that's wrong.
U.S. Attorneys around the country are the chief Federal law
enforcement officers in their States and they are the face of
Federal law enforcement. They have enormous responsibility for
implementing any terrorism efforts, bringing important and
often difficult cases, and taking the lead to fight public
corruption.
It's vital that those holding these positions be free from
an inappropriate influence, an importance reflected in the fact
that these appointments are, traditionally and currently,
subject to Senate confirmation. The U.S. Senate has to actually
vote on the confirmation just to determine that these are going
to be independent positions.
Among that independence, of course, is the ability to use
your own discretion in not only the cases you bring, but one of
the most important things a prosecutor can do is discretion
when you either don't bring a case or when you use your
resources for what you feel is the most important.
There's been a series of shifting explanations and excuses
from the administration, and a lack of accountability or
acknowledgement of the seriousness of the matter makes it all
the worse.
The Attorney General's initial response at our January 18th
hearing when we asked about these matters was to brush aside
any suggestion that politics and interference with ongoing
corruption investigations were factors in the mass firings.
Well, now we know that wasn't so.
We know these factors did play a role in these matters. The
question now arises, where is the accountability? For 6 years,
accountability has been lacking. In this administration,
loyalty to the President is rewarded over all else. I think
this lack of checks and balances has to end. We don't need
another commendation for a heck of a job done by somebody.
I was pleased, on the side, when Defense Secretary Gates
went out to Walter Reed and said, ``This is wrong,'' and took
responsibility. He started moving things. I told him publicly,
it was refreshing to see somebody actually acknowledge what
happens.
But there's no accountability for this action by the
Justice Department, and that's why we have to have these
hearings. You can't just create vacancies on a time line, where
you're then going to put in people--in one case, we found out,
a political acolyte of a major White House person. Did not
necessarily have the qualifications, but was put in there for
his political qualifications. And the interesting thing is,
every one of the people asked to resign were nominated by this
President and confirmed by the Senate.
Now, we can fix this thing in the Patriot Act. We've
reported a bill to the Senate to reverse that mistake. Senator
Feinstein, Senator Specter, Senator Schumer and I have all co-
sponsored it and it's being blocked in the Senate by Republican
objections. I hope that after these hearings it will move
forward and we will not see this kind of a scandal happen
again.
Mr. Chairman, I will submit questions, but I think that the
questions that you and others are going to ask are pretty well
going to reflect what I would ask. Thank you.
Senator Schumer. Thank you, Mr. Chairman. Again, thank you
for your support and help on this, and so many other issues.
All right. My first series of questions are directed to Mr.
Iglesias. First, I want to thank you for agreeing to testify
here today, Mr. Iglesias.
I know this is not easy or pleasant for you. You caused
quite a stir by your public allegations last week about
potentially inappropriate contacts you've had with two Members
of Congress last October.
You've been quoted as saying that the calls made you feel
``pressured to hurry the subsequent cases and prosecutions'' in
a public corruption case involving local Democratic officials
in New Mexico.
Some of the questions that I have to ask may be awkward and
difficult for you to answer. Some are certainly awkward and
difficult for me to ask, as they involve a colleague in the
Senate. But I think everyone will agree that all the facts have
to come out, and we would not be doing our job if we did not
try to make an accurate record of what happened.
These hearings were initiated long before we knew any
colleagues might be involved, and when we initiated the
hearings I promised that we would take this (inaudible) to its
logical conclusion, which is our duty as legislators. At all
times we will be fair and responsible, but we must get to the
bottom of this issue.
So, Mr. Iglesias, you have said publicly that you received
two calls from Members of Congress in October of 2006 about
pending public corruption investigations. Who made those calls?
Mr. Iglesias. Mr. Chairman, Mr. Ranking Member, honorable
members of the Senate, thank you for the opportunity for me to
set the record straight. And Senator Schumer, thank you for
pronouncing my name correctly the first time.
[Laughter.]
The first call was made on or about October the 16th. I was
here in Washington, DC on DOJ business. We were here for
several days on Subcommittee work and I had just returned to my
hotel.
I received a call from Heather Wilson, U.S. Representative
from New Mexico, District 1. The call was quite brief. Senator,
shall I go into the contents or shall I just give you the name
of the individual who called me?
Senator Schumer. Yes. I'll go through the questions and
then give you a chance to fill in the details. OK?
Mr. Iglesias. OK.
Senator Schumer. So who was the second call from?
Mr. Iglesias. The second call was approximately 2 weeks
later, when I received a call at home from Senator Pete
Domenici.
Senator Schumer. OK.
And do you remember the date and the day of the call, the
day of the week?
Mr. Iglesias. It was approximately the 26th or 27th of
October.
Senator Schumer. Right.
And did someone place the call for the Senator or did he
call you directly?
Mr. Iglesias. Initially, his Chief of Staff, Steve Bell,
called and indicated that the Senator wanted to speak with me.
Senator Schumer. OK.
And approximately how long was that phone call in total?
Mr. Iglesias. Very brief. One to 2 minutes, at the tops.
Senator Schumer. OK.
At the time, were there public reports about a corruption
investigation involving Democrats in New Mexico?
Mr. Iglesias. Yes, sir.
Senator Schumer. Please describe for the Committee now, as
best you can, your entire recollection of that communication.
Please tell us what Senator Domenici said and what you said.
Mr. Iglesias. Thank you, sir. I was at home. This was the
only time I had ever received a call from any Member of
Congress while at home during my tenure as U.S. Attorney for
New Mexico.
Mr. Bell called me. I was in my bedroom. My wife was
nearby. And he indicated that the Senator wanted to speak with
me. He indicated that there were some complaints by some
citizens, so I said, ``OK.'' And he says, ``Here's the
Senator.''
So he handed the phone over and I recognized the voice as
being Senator Pete Domenici. And he wanted to ask me about the
corruption matters or the corruption cases that had been widely
reported in the local media. I said, ``All right.''
He said, ``Are these going to be filed before November?''
And I said I didn't think so, to which he replied, ``I'm very
sorry to hear that.'' Then the line went dead.
Senator Schumer. So in other words, he hung up on you?
Mr. Iglesias. That's how I took that. Yes, sir.
Senator Schumer. And he didn't say goodbye or anything like
that?
Mr. Iglesias. No, sir.
Senator Schumer. Now, did you take that as a sign of his
unhappiness with your decision?
Mr. Iglesias. I felt sick afterward. So, I felt he was
upset that--at hearing the answer that he received.
Senator Schumer. Right.
And so is it fair to say that you felt pressured to hurry
subsequent cases and prosecutions as a result of the call?
Mr. Iglesias. Yes, sir, I did. I felt leaned on. I felt
pressured to get these matters moving.
Senator Schumer. And as you say, it was unusual for you to
receive a call from a Senator at home while you were the U.S.
Attorney.
Mr. Iglesias. Unprecedented. It had never happened.
Senator Schumer. OK.
How long after that contact with Senator Domenici were you
fired?
Mr. Iglesias. Approximately 6 weeks later, five--5 weeks
later, thereabouts.
Senator Schumer. Thank you.
Let's go on to the call with Heather Wilson. Did the call
with Congresswoman Wilson occur before or after your
conversation with Senator Domenici?
Mr. Iglesias. The call from Congresswoman Wilson was
approximately 2 weeks prior to the call from Senator Domenici.
Senator Schumer. Do you remember the day or date of that
one?
Mr. Iglesias. It was on or about the 16th of October.
Senator Schumer. And please describe for the Committee as
best you can your entire recollection of that communication.
Tell us what Congresswoman Wilson said and what you said.
Mr. Iglesias. That was also a very brief conversation. She
mentioned--well, I mentioned I was just coming in to
Washington, DC and she joked, ``Well, I'm sorry to hear that.''
She then asked me about, she'd been hearing about sealed
indictments. She said, ``What can you tell me about sealed
indictments?''
The second she said any question about sealed indictments,
red flags went up in my head because, as you know, we cannot
talk about indictments until they're made public, in general.
We specifically cannot talk about a sealed indictment. It's
like calling up a scientist at Sandia Laboratories and asking
them, let's talk about those secret codes, those launch codes.
So, I was evasive and non-responsive to her questions. I said,
``Well, we sometimes do sealed indictments for national
security cases, sometimes we have to do them for juvenile
cases.''
And she was not happy with that answer. Then she said,
``Well, I guess I'll have to take your word for it.'' And I
said--I don't think I responded. ``Goodbye.'' That was the
substance of that conversation.
Senator Schumer. Did you feel pressured during that call?
Mr. Iglesias. Yes, sir, I did.
Senator Schumer. OK.
Did you feel as sick as you did after the second call?
Mr. Iglesias. Not as sick, because I didn't think there's
be any more communications.
Senator Schumer. Got you. OK.
Let me now go to--we have limited time. I'll want to come
back to you, Mr. Iglesias, in the second round.
But I want to go, now, to Mr. McKay. Our committee's
interest in these matters are serious and, of course, any
attempt to intimidate a witness into not testifying or not
being cooperative would be very troubling. Let me ask this
question.
I'm going to ask this question of all of you, but I'm going
to start with Mr. McKay. After your dismissal, did any of you--
first, Mr. McKay--receive any communication from any official
at the Department of Justice that you believed was designed to
discourage you from testifying or making public comments?
Mr. McKay. Senator, a conversation was related to me by one
of the panel members, Mr. Cummins, who I believe wants to
address that first, if you would like to do that, and I'm
prepared to comment on how I received that information.
Senator Schumer. Fine. Mr. Cummins, why don't you then talk
about that?
Mr. Cummins. ``Wants to'' might be a strong description of
my--
[Laughter.]
I'm willing to tell you, truthfully, about a phone call I
received.
I believe on February 20th, I received a phone call from
Mike Elston, who I believe is the Chief of Staff to the Deputy
Attorney General. I had had some previous conversations with
Mr. Elston.
In fact, it was Mr. Elston that I contacted, after the
Attorney General testified in this committee, to express to him
some concerns I had about the way I was being treated in light
of the Attorney General's comments.
So--I'd have to think. Over the course of this, Mike Elston
and I have talked three or four times. That day was a Tuesday,
as I recall, and there had been a Sunday Washington Post
article in which I was quoted as saying something to the effect
of, ``the Department can replace us for any reason or no
reason'', and also saying that if--if--they were somehow being
deceptive about the reasons--about my colleagues because they
didn't want to talk about the true agenda behind these other
dismissals, that I thought that was unfair and that should be
corrected. And I'm paraphrasing. I don't have my exact quote.
That was in a Dan Eggen story in the Washington Post, I
believe, on February 18th.
Apparently that struck a nerve, that I had given that
quote, and partly probably because they felt like they had done
me right when the Deputy Attorney General had testified, and to
that extent they certainly had. He honestly said what my
situation was and cut me out of this other category. So, maybe
they felt like they'd been somehow betrayed by me because I
should still be in the fold.
And so, you know, I discussed that with Mike and told him
that, No. 1, the paragraph right before my quote used--said
that ``many prosecutors were enraged.'' I said that's not my--I
didn't use the words ``enraged''. That's the writer's words.
Maybe some of the other colleagues are enraged, but that wasn't
the context that I made that statement.
I told him, additionally, that--I pointed out to him that
none of the U.S. Attorneys had taken any action to stir up any
controversy after we'd been dismissed, and it was only once
Congress started calling the Department of Justice to task and
they endeavored to defend their actions that any of us said
anything, because we weren't comfortable with what was being
said.
And then finally I pointed out to him that--that all of us
at that point had already received a number of phone calls from
your staff, and I'm not sure about the House at that point, but
we had had many invitations already to come here and do this
and testify, which we had all declined.
So I was trying to remind him that we weren't driving this
train, that it was really an issue between the administration
and Congress, and we were just witnesses. And so--and this was
all very congenial. This was not a tense phone call.
But then at one point he did say that there was a feeling
in the Department that they had been too restrained in their
defense of their actions, mainly concerning my colleagues, and
this was after they had had the behind-doors session with the
Senate to show whatever materials they showed.
And he indicated that there was a viewpoint held among
people--some people in management at the Department that if the
controversy continued to be stirred up, that more information,
more damaging information might be brought out. I'm not
attempting to quote him here, but the inference was clear. And
again, I think it mainly applied to my colleagues, not to me,
because I had been separated.
Senator Schumer. Right.
Mr. Cummins. And so, you know, I'm not trying to
characterize that as a threat. It was a very congenial phone
call. It might have been a threat, might have been a warning,
might have been an observation, a prediction. You can
characterize it. I'm going to leave it up to you.
But I thought about it for a while and I felt like it had
been a confidential conversation. I didn't feel completely
comfortable sharing it with anybody. But on the other hand, I
was very concerned about my colleagues, the people that are
sitting here, and others that I didn't feel like were being
treated fairly. And, of course, I'd been in their shoes just a
few weeks before.
And so I felt like I would not be comfortable having one of
them give an interview the next day and then have the world
fall on top of them without knowing that that message had been
delivered.
And I almost felt like it had been delivered for a purpose
for me to share it, so I did, in fact, try to convey that to
Ms. Lam, Mr. Iglesias, Mr. McKay, Mr. Bogden, and Mr. Charlton.
Senator Schumer. How did you convey that to them?
Mr. Cummins. I actually sent them an e-mail.
Senator Schumer. Right.
And is that e-mail available for the record, should we need
it?
Mr. Cummins. Yes, sir.
Senator Schumer. OK.
Mr. McKay, give us what your feelings were, your
interpretation when you received that e-mail.
Mr. McKay. Senator, thank you. Mr. Cummins delineated his
information down to some fairly direct comments to us. I took
those comments to be the following: No. 1, public comments by
former U.S. Attorneys were intensely frowned upon by the
Department of Justice and we could expect repercussions if we
continued to speak publicly. No. 2, any--
Senator Schumer. And this was after our investigation had
begun.
Mr. McKay. That is correct. February 20th is, I believe,
the date of the phone call from Mr. Elston. No. 2, he made it
clear, at least to Mr. Cummins, who passed it on to us, that
any work with the Congress or testimony before the Congress
would be seen as an escalation by the Department of Justice and
that they would respond accordingly.
I heard both of those messages from Mr. Cummins, and Mr.
Cummins related to us fairly and, I think, with courage that he
considered Mr. Elston's call to be intentionally delivered to
us, not just to him.
So, therefore, Senator, I felt that that was a threat. I
felt it was hugely inappropriate coming from a Department of
Justice official, particularly with regard to potential
Congressional testimony. I do think it was inappropriate. I
want to say, while it was a threat, I'm not intimidated, and I
don't think my colleagues are, either.
Senator Schumer. Thank you.
Relate to us your feelings after receiving the e-mail from
Bud Cummins, Mr. Iglesias.
Mr. Iglesias. I felt like it was a warning shot across the
bow. The message that I took is, you'd better tone it down,
stop talking, or there will be other embarrassing things
revealed about your record. It didn't intimidate me, it made me
angry. So, hence, my presence here.
Senator Schumer. Right.
And Ms. Lam?
Ms. Lam. I don't think I have a lot to add to that.
I did receive the message. I think trying to sort out or
describe my feelings at any point in time is a little bit
difficult at this point, but I think I did have some concern
because neither before, during, or after the call of December
7th have I ever been provided directly by the Department with
the reason I received the call.
Therefore, it was never known to me whether they were
holding some information that they were going to release
subsequently that I was not aware of, and therefore some attack
that I could not predict. So having not ever been told the
reason, I think that did cause me some concern.
Senator Schumer. Thank you.
Now, Mr. Cummins or Mr. McKay, but Mr. Cummins, would you
please submit that e-mail to the committee? You don't have it
right here, do you?
Mr. Cummins. Yes, Senator, I have it.
Senator Schumer. OK. Well, maybe during recess or at some
point we will ask you to just give it to us and we can ask
questions about it on the second round.
Mr. Cummins. Yes, sir.
Senator Schumer. Just one final question for me I want to
ask each of these witnesses. And just please answer this one
``yes'' or ``no'', because my time has expired.
I want to ask each of you, based on everything you know,
sitting here today, do you believe that you were fired for any
failure of performance, as alleged by the Justice Department?
Ms. Lam? Just answer that ``yes'' or ``no''.
Ms. Lam. I honestly don't know, but I don't think so,
Senator.
Senator Schumer. Mr. Iglesias?
Mr. Iglesias. No, sir.
Senator Schumer. Mr. McKay?
Mr. McKay. No, Senator.
Senator Schumer. Mr. Cummins? We know that that's a fact
with you, because they admitted that.
My time has expired. I've gone a little over.
Senator Specter?
Senator Specter. Well, Mr. Chairman, for purposes of my
round I think it important to note that you were 6 minutes and
58 seconds over. And I don't say that in any sense to say you
shouldn't be, just that I would look for the same latitude.
Senator Schumer. You will have it, as always.
Senator Specter. OK.
May I see the e-mail before my round begins, Mr. Cummins?
Mr. Chairman, may I ask that the clock stop?
Senator Schumer. Yes. Would the Clerk get the e-mail and
then copy it and distribute it each person? And while we're
waiting, since we do have limited time, they have another
appointment, do you want to wait until we get it copied?
Senator Specter. Yes. I need to see the e-mail so I know
what the basis of the communication was.
Senator Schumer. Then maybe, can we let Senator Feinstein
go for her 10 minutes?
Senator Specter. Sure.
Senator Schumer. Thank you.
Senator Feinstein? Thanks.
Senator Feinstein. Thank you.
If I may, I'd like to begin with Mr. McKay. Mr. McKay, did
any Member of Congress or their staff contact you regarding
decisions your office was making whether to conduct an
investigation?
Mr. McKay. Yes.
Senator Feinstein. Were you ever contacted by a Member of
Congress or their staff about the status of the Washington
gubernatorial election?
Mr. McKay. Yes, Senator.
Senator Feinstein. Who, and what, was the outcome of those
contacts?
Mr. McKay. Senator, at some weeks following the 2004
Governor's election in the State of Washington, I received a
phone call from the Chief of Staff to Representative Doc
Hastings of Richland, Washington.
The Governor's election at that time had been certified in
favor of the Democratic candidate on a third recount by
something around 200 votes out of millions cast. I was told the
purpose of the call was to inquire on behalf of the Congressman
regarding the status of any Federal investigation into the
election.
I advised Representative Hastings's Chief of Staff of the
publicly available information, and that was that the Seattle
Field Office of the Federal Bureau of Investigation, and my
then-office, the U.S. Attorney's Office for the Western
District of Washington, was requesting anyone with information
about voter fraud to immediately contact the Bureau.
When the Chief of Staff began to press me on any future
action by the United States on the election, I stopped him.
Senator Feinstein. Excuse me. Who was the Chief of Staff
that called?
Mr. McKay. The Chief of Staff name was--it is Ed Cassidy. I
understand he's no longer the Chief of Staff.
Senator Feinstein. Thank you. Please proceed.
Mr. McKay. Mr. Ed Cassidy. So when Mr. Cassidy called me on
future action, I told him that--I stopped him and I told him
that I was sure that he wasn't asking me, on behalf of his
boss, to reveal information about an ongoing investigation or
to lobby me on one, because we both knew that would be
improper. He agreed that it would be improper and ended the
conservation in a most expeditious fashion.
I was concerned and dismayed by the call. I immediately
summoned the first Assistant U.S. Attorney and the Criminal
Chief for my office into my office, and I briefed them on the
details of the call. We all agreed that I stopped Mr. Cassidy
before he entered clearly inappropriate territory and it was
not necessary to take the matter any further.
Senator Feinstein. Do you think this situation had anything
to do with the reason you were asked to resign?
Mr. McKay. I do not know, Senator. I think that would be
something that perhaps Representative Hastings or officials of
the Department of Justice would say. Like Ms. Lam, I neither
asked for, nor received, any explanation for my forced
resignation.
And I actually want to say that I agree completely with
Senator Specter. I did serve at the pleasure of the President.
When asked to resign, I resigned quietly. I made no statement
about my service. I had no intention of defending my time in
office. I have no intention of doing that here either. But I
did try to go quietly.
I did feel that was my duty to the President of the United
States and to the Senate. And the situation changed when they
began to mischaracterize the work of the people in my office,
and I am here, in part, to defend their work.
Senator Feinstein. Was there any other pressure you
received to launch an investigation?
Mr. McKay. Not from Members of Congress. It did become a
very controversial issue in Seattle and throughout the State of
Washington when a Governor's election is that close.
And I want to say that I considered that to go completely
and entirely with the territory of being an independent
prosecutor whose job it is to do what's right by the law, and
not the political thing, and I had felt no pressure in that
regard.
Senator Feinstein. Thank you, Mr. McKay.
Now I'd like to turn to Ms. Lam, if I might. As you know,
the FBI Chief in San Diego, Dan Dzwilsky, stated that your
continued employment, he believed, was critical to the success
of a number of ongoing investigations.
I understand this is an ongoing investigation and I don't
want you to reveal anything confidential, but is it fair to say
that even though there was a conviction in the Duke Cunningham
case, there may also be other ongoing investigations that could
stem from that case?
Ms. Lam. Well, Senator, as you know, 2 days before I left
office on February 15th, the office did bring an indictment
against Dusty Fogo and Brent Wilkes, as well as--well,
indictments were brought in those two cases. And at that time
our office announced that the investigation was ongoing. Beyond
that, Senator, I don't really feel that I can--I can comment
further.
Senator Feinstein. And has your office filed additional
subpoenas, four additional subpoenas?
Ms. Lam. Since that time? I don't know, your Honor. I'm
sorry. I don't know, Senator. It's the circumstances.
Senator Feinstein. And could you tell us what Dusty Fogo
and Brent Wilkes are being indicted for?
Ms. Lam. They were indicted--it was an investigation that
did arise out of facts learned during the investigation of
former Congressman Cunningham. One indictment had to do with
Mr. Fogo's use of his position at the CIA, his receipt of--his
receipt of goods in order to get government contracts for Mr.
Wilkes. And the other indictment involved a conspiracy--a
conspiracy to bribe Congressman Cunningham.
Senator Feinstein. Now, Ms. Lam, your office has been
criticized for its handling of immigration cases. Was this
concern raised with you directly, and if so, what was the
outcome?
Ms. Lam. Senator, the first real controversy about the
office's handling of immigration cases, I think, arose
approximately a year ago when Congressman Isa, in San Diego,
began responding to complaints from the Border Patrol Union--
not management, but the Border Patrol Union--regarding the
office's decision--my decision--to reduce some of our--some of
the prosecutions of lower-level ``coyotes'', or foot guides, in
the office.
I think it's important as a starting ground to note that,
in similarly sized U.S. Attorney's Offices throughout the
country, one office in the Northeast prosecutes approximately
400 cases a year, another one in the West prosecutes about 800
cases a year, another one in the East, about 1,400 cases a
year. The Southern District of California, in any given year,
will prosecute between 2,400 and 3,000 cases.
There were some complaints about that and we made it--and I
had discussions with the Department of Justice really about
those complaints from the Congressman.
And I explained to the Department that what our office was
doing was pursuing lengthier sentences, as the Justice
Department had asked us to do only about 2 years earlier, to
pursue cases and to stick to the sentencing guidelines.
And at that time I had informed the Justice Department that
we would likely go to trial more as a result of pursuing those
lengthier sentences, but that we would act in conformance with
their wishes. And, in fact, between 2004 and 2005, our
immigration trial rate double, more than doubled, from 42 to 89
trials.
That took a lot of attorney resources, but I felt that we
were complying with the Department's wishes. I thought we were
getting good results, putting very bad people, criminal
recidivists, away, the costs being more attorney time put into
those cases. And, in fact, I think we got good results.
The result was that we did have to cut some filings. And I
told the Department that would likely be the result. Their
response was, well, we're paid to be trial attorneys, not plea
bargain attorneys. I accepted that.
And, in fact, our higher-end sentences on criminal
recidivists has increased four-fold, while our low-end
sentences has decreased. I think what we have done, is we have
eliminated a lot of the revolving-door prosecutions of lower-
level alien cases. We have also increased the number of very
significant investigations and prosecutions.
We have convicted seven corrupt law enforcement agents
along the border who were charged with enforcing the alien
smuggling laws. They are very lengthy wire tap investigations.
They required a lot of resources. But these are people who
waved through hundreds of aliens across the border without
detection every week. We get but one criminal statistic for
each of those cases.
We prosecuted the Golden State Fence Company, one of the
very few criminal employer sanction cases in the country, a $5
million forfeiture, the two owners facing jail time.
And we have been able to dismantle alien smuggling
organizations. In August, we received a 188-month sentence on
the head of an alien smuggling organization. I don't think that
anything that we have done has been inconsistent with the
mandates of the Department. We've been very transparent in what
we have been doing. And as you noted, Senator, we felt the
Department was supportive of those efforts.
Senator Feinstein. Well, thank you. And I'd just like to
say for the committee's benefit that you are very well
respected by judges, by investigators, and by others in the
district.
Could I ask one other question?
Senator Schumer. Please go right ahead, Senator.
Senator Feinstein. I'd like to ask the same question of
each one of you. That is, how soon after you were told that you
were forced to resign did interviews, to the best of your
knowledge, begin for your replacement? Could we start with you,
Ms. Lam?
Ms. Lam. I don't think interviews began until approximately
2 weeks before I left office. That would have been early
February. I can't give you a precise date, but it would have
been approximately almost 2 months after I received the phone
call.
Senator Feinstein. Mr. Iglesias?
Mr. Iglesias. To the best of my recollection, the
interviews took place--this is for the interim position--in
early to mid-February of this year.
Senator Feinstein. Mr. McKay?
Mr. McKay. Senator, I was told to resign on December 7th,
and to my knowledge the first request for interviews in my
district took place on approximately January 16th. And I recall
it because it was about 2 days before the U.S. Attorney
testified before this committee.
Senator Feinstein. Thank you.
Mr. Cummins?
Mr. Cummins. Well, in my case, Senator, the interim person
was already identified--
Senator Feinstein. Prior.
Mr. Cummins.--at the time I was asked to leave.
Senator Feinstein. Yes. I think that is--
Mr. Cummins. So I don't think there were interviews.
Senator Feinstein. That is significant because the outside
person was clearly brought in. In the other four cases, there
were no interim interviews begun until the cases became very
publicly known. I think that has led us to believe that it was
quite probable that outside individuals were going to be
brought in to take these positions.
But my time is up.
Senator Schumer. Thank you, Senator Feinstein.
Senator Feinstein. Thank you.
Senator Schumer. Before we get to Senator Specter, we now
all have a copy of the e-mail. First, I'd ask unanimous consent
it be read into the record.
Senator Schumer. And second, I think it's important, and
I'd like it read here so everyone can hear it. Mr. Cummins,
would you want to read it? Or if you'd prefer, I'll read it.
Mr. Cummins. I'd prefer for you to read it.
Senator Schumer. Thank you. OK. I thought that might be the
case. OK.
It's from H.E. Cummins, sent Tuesday, February 20th, 2007,
5:06 p.m. to Dan Bogden, Paul K. Charlton, David Iglesias,
Carol Lam, McKay, John, Law Adjunct. I'm just reading it
exactly as it is.
``Subject: On Another Note. Mike Elston from the DAG's
office called me today. The call was amiable enough, but
clearly spurred by the Sunday Post article.
``The essence of his message was that they feel like they
are taking unnecessary flak to avoid trashing each of us
specifically or further, but if they feel like any of us intend
to continue to offer quotes to the press or organize behind-
the-scenes Congressional pressure, then they would feel forced
to somehow pull their gloves off and offer public criticisms to
defend their actions more fully.
``I can't offer any specific quotes, but that was clearly
the message. I was tempted to challenge him and say something
movie-like such as, `Are you threatening me?' But instead, I
kind of shrugged it off, said I didn't sense that anyone was
intending to perpetuate this.
``He mentioned my quote on Sunday and I didn't apologize
for it, told him it was true, and that everyone involved should
agree with the truth of my statement, and pointed out to him
that I stopped short of calling them liars and merely said that
if they were doing as alleged, they should retract.
``I also made it a point to tell him that all of us have
turned down multiple invitations to testify. He reacted quite a
bit to the idea of anyone voluntarily testifying and it seemed
clear that they would see that as a major escalation of the
conflict meriting some kind of unspecified form of retaliation.
``I don't personally see this as any big deal, and it
sounded like a threat of retaliation amounts to a threat that
they would make their recent behind-closed-doors Senate
presentation public.
``I didn't tell him that I heard about the details in that
presentation and found it to be a pretty weak threat, since
everyone that heard it apparently thought it was weak.
``I don't want to stir you up conflict or overstate the
threatening undercurrent in the call, but the message was
clearly there and you should be aware before you speak to the
press again, if you choose to do that.
``I don't feel like I am betraying him by reporting this to
you because I think that is probably what he wanted me to do.
Of course, I would appreciate maximum op sec,'' operational
security, I presume that is, ``regarding this e-mail and ask
that you not forward it or let others read it. Bud.''
[Laughter.]
Senator Schumer. Without objection, the entire statement is
read into the record.
Senator Specter?
Senator Specter. Thank you, Mr. Chairman.
Ms. Lam, in your statement you say ``each of us was fully
aware that we served at the pleasure of the President and that
we could be removed for any, or no, reason.'' Do you think that
you were inappropriately removed?
Ms. Lam. Well, Senator, I think that it was unusual given
the tradition and the history of U.S. Attorneys within the
Department of Justice. It was not my understanding--I
understand legally that we do serve at the pleasure of the
President, and I have no problem with that.
I think traditionally U.S. Attorneys have held a unique
position as Presidential appointees, confirmed by the Senate,
in their districts, so I think this was unusual. I am troubled
by it because of the potential chilling effect it has on U.S.
Attorneys.
Senator Specter. Well, you know your situation better than
anybody. I phrased the question very carefully to get your
judgment as to whether you think you were improperly removed.
You haven't quite answered it, by saying that it was
``unusual''. I think the Committee would be interested to know
your judgment if you think it was improper.
Ms. Lam. Again, because I don't know the exact reason and I
have not been told that by the Department--in fact, when I did
inquire what the reason was I was told essentially that they
didn't see why that information would be helpful to me.
Given that, it's a little hard for me to judge what would
be proper or improper, and that's why I'm hesitating, Senator.
I don't feel that I did anything in my role as U.S. Attorney to
either embarrass the administration or the President or warrant
removal, but that is all I can say.
Senator Specter. All right. I will accept your answer. But
we haven't had your judgment, but I will respect that.
Ms. Lam, there were intimations that you were replaced
because you were successful in the prosecution against former
Congressman Cunningham and that you might have been hot on the
trail of others involved. Is there any basis for that
suggestion or inference?
Ms. Lam. Well, of course I've seen those suggestions or
statements. Again, I have no further information than I've
already said. I was given no reason, and I did not receive any
communication directly from the Department about it being
related to the investigation.
Senator Specter. Well, that's not quite responsive again.
Ms. Lam. I apologize.
Senator Specter. There's been a suggestion that you will
not--or you made a comment that you wouldn't say anything about
pending investigations. You're nodding in the affirmative.
I think the circumstances of this matter warrant the
Committee making that inquiry, but we can do it in a closed
session so that you don't have to talk about it publicly. Do
you care to say anything on that subject publicly?
Ms. Lam. No, I don't care to talk about any potential
ongoing investigations, Senator, publicly. All I meant to say
was that I did not receive any pressure from the Department of
Justice or any intimation that I was being removed because of
the Cunningham investigation.
Senator Specter. Well, still not responsive. Were there
continuing investigations arising from the Cunningham
conviction?
Ms. Lam. Yes. And I think that is part of the public
record. I believe we said that at the time we announced the
Fogo and Wilkes indictment.
Senator Specter. OK. Well, we'll pursue that further, but
in a closed session.
Mr. Iglesias, statements have been made by both Senator
Domenici and Congresswoman Wilson about your conversations. I
would ask unanimous consent that their full statements be made
a part of the record, because I will only quote from a part of
them.
Senator Schumer. Without objection.
Senator Specter. But this is what Senator Domenici said
with respect to the conversations: ``I asked Mr. Iglesias if he
could tell me what was going on in that investigation and give
me an idea of what timeframe we were looking at.
``It was a very brief conversation which concluded when I
was told that the courthouse investigation would be continuing
for a lengthy period.'' And then Senator Domenici goes on, ``At
no time in that conversation or any other conversation with Mr.
Iglesias did I ever tell him what course of action I thought he
should take on any legal matter. I have never pressured him nor
threatened him in any way.''
Is Senator Domenici wrong in what he said there?
Mr. Iglesias. Sir, it's true that he did not direct any
specific action. But the fact that he would call and ask about
an investigation, I felt, was a threatening telephone call.
Senator Specter. Well, Senator Domenici says that ``I have
never pressured him nor threatened him in any way.'' What was
there that led you to disagree with that and feel pressure or a
threat?
Mr. Iglesias. Due to the timing of the call. It was late
October. I was aware that public corruption was a huge battle
being waged by Patricia Madrid and Heather Wilson. I
assiduously tried to stay out of that fight. I felt that him
asking me about corruption matters, that anything I would say
publicly would be used in attack ads. I wanted to stay out of
politics.
I wanted to stay out of the campaign, because my job was
law enforcement, not playing politics. So the fact that he
would even ask about pending corruption matters, I felt, was
inappropriate and I did feel pressure to take action.
Senator Specter. And so you thought whatever you said might
be used in television commercials or attack ads?
Mr. Iglesias. In public. Yes, sir, that's correct.
Senator Specter. Well, what was the basis for your thinking
that?
Mr. Iglesias. Because the ads focused on the--my office's
prosecution of the State treasurer case. These were
unprecedented cases in which my office was able to convict two
elected officials in the State of New Mexico, back-to-back
State treasurers. We got convictions.
The fact that the State Attorney General had not taken any
action and had, in fact, indicted our Federal cooperating
witnesses, became a huge point of contention between
Congressman Heather Wilson and her challenger, Patricia Madrid.
I wanted to stay out of that.
Senator Specter. Well, Mr. Iglesias, aside from your
conclusions and feeling pressured, did Senator Domenici say
anything more than he has put in his statement where he said,
``I asked Mr. Iglesias if he could tell me what was going on''?
Mr. Iglesias. The fact that the line went dead after him
saying he was very sorry to hear that I would not be taking any
action before November. I felt pressure to move the case
forward.
Senator Specter. Well, you've told me you felt pressure and
the line went dead, and he said to you that he was sorry
nothing would be happening before November. That's about the
total substance of what Senator Domenici said?
Mr. Iglesias. That's correct, sir. It was a very brief
conversation.
Senator Specter. I now turn to the statement which was
released by Congresswoman Heather Wilson. ``In the fall of last
year, I was told by a constituent,'' reading in part, ``with
knowledge of ongoing investigations that U.S. Attorney David
Iglesias was intentionally delaying corruption prosecutions....
``I called Mr. Iglesias and told him the allegation, though
not the source. Mr. Iglesias denied delaying prosecutions. He
said that he had very few people to handle corruption cases. I
told him that I would take him at his word, and I did.... I did
not ask him about the timing of any indictments and I did not
tell Mr. Iglesias what course of action I thought he should
take or pressure him in any way.''
Now, my question to you. Did Congresswoman Wilson say
anything beyond, ``I told him about the allegation[s]. I told
him that I would take him at his word, and I did.'' Did she say
anything more to you than what she has recounted in this
statement?
Mr. Iglesias. Yes, Senator. She--we didn't talk about
resources. She didn't say that anybody was alleging that I was
intentionally withholding the indictments or investigation. She
wanted to talk about the so-called sealed indictments,
something that I could not discuss with her.
Senator Specter. She wanted to talk about what?
Mr. Iglesias. Sealed indictments.
Senator Specter. Sealed indictments?
Mr. Iglesias. That's correct, sir.
Senator Specter. Did she say anything beyond what she said
she said, and the inquiry about sealed indictments?
Mr. Iglesias. I don't believe so, sir. It was a very brief
conversation. Since, obviously, I could not talk about sealed
indictments, I was non-responsive to her inquiries.
Senator Specter. And you thought that the conversation by
Senator Domenici and Congresswoman Wilson, those calls were
inappropriate?
Mr. Iglesias. Yes, sir, I do.
Senator Specter. Did you report those calls to the
Department of Justice?
Mr. Iglesias. I did not.
Senator Specter. Why not?
Mr. Iglesias. I felt terribly conflicted because Senator
Domenici had been a mentor to me. He'd assisted me early in my
career. And Heather Wilson was a friend, an ally. We campaigned
together back in 1998. I saw her go from being a very--what's
the polite way of putting this? Unaccomplished public speaker
to being a very accomplished public speaker. And I felt a
conflict between my loyalty to them as friends and allies and
my duty to report under DOJ guidelines.
Senator Specter. Well, Mr. Iglesias, as an experienced
prosecutor, you know about the importance of a prompt complaint
to establish credibility?
Mr. Iglesias. Yes, sir, I do.
Senator Specter. Well, I think it's very useful that you
have come forward and testified and I commend you for doing
that. What the Committee is trying to do, is find out exactly
what was said and whether your reaction to it was caused by
others or whether what they did was inappropriate.
But that leads me to the next question. It is, what made
you change your mind as to what you have just said about your
feeling toward Senator Domenici as a mentor, and what you said
about Congresswoman Wilson, about your regard for her and how
she had helped you, what led you to change the view of not
making a prompt report to your superiors at the Department of
Justice, and coming forward at a later date with what you have
just told us?
Mr. Iglesias. Yes, sir. I've always been trained that
loyalty is a two-way street. I believe that they were behind me
being asked to resign. I began thinking during the month of
December that I knew performance was not the issue. I have data
to support that. My office is performing superbly. I'm proud of
my office, especially my Los Cruces office.
I started thinking, why I am protecting people that not
only did me wrong, but did the system of having independent
U.S. Attorneys wrong? So upon further reflection, I thought the
right thing to do was to go public with the fact that I had
been contacted inappropriately by two Members of Congress.
Senator Specter. Well, in light of the stands taken by the
Department of Justice in terminating so many U.S. Attorneys--
and I don't condone it, we haven't seen any reason for it with
the kind of performance that the U.S. Attorneys have
undertaken--but did the thought cross your mind that they might
have terminated you for the same reason they terminated others
without having Senator Domenici or Congresswoman Wilson cause
your termination?
Mr. Iglesias. At the time, early December, in the days
after getting my phone call on Pearl Harbor Day, I wasn't
thinking about my colleagues. I didn't know what had gone on in
the other districts until a few weeks later. But during the
month of December I hadn't really connected the dots. I didn't
know why I had been asked to resign.
In fact, when I asked Mike Battle, ``Mike, why did they ask
to terminate me,'' he said, ``I don't know, Dave. I don't want
to know.'' And I don't think--''I don't want to know.'' All I
know is, this came from ``on high''. That was a quote, ``on
high''. So his response didn't help me understand why I was
being asked to resign when, by demonstrable DOJ internal data,
my office was performing well.
Senator Specter. When did that conversation with Mr. Battle
occur?
Mr. Iglesias. On December 7th, 2006.
Senator Specter. When you were terminated.
Mr. Iglesias. Well, when I was asked to resign, effective
the end of January. Yes, sir.
Senator Specter. Well, when did you first conclude that
Senator Domenici and Congresswoman Wilson were instrumental in
your termination or your being asked to resign?
Mr. Iglesias. Probably sometime during the month of
January. I was ruminating as to why. I knew that misconduct was
not a basis. That's never been alleged as to any of us. I knew
that performance was not the real basis. The only third
possibility would be politics.
I started thinking, well, why would I be a political
liability hen, a few years ago, I was a political asset? And
then I thought about the two phone calls and I knew that the
race in New Mexico was very close. I suspect they believe that
I was not a help to them during the campaign. And I just
started to kind of put the dots together.
Senator Specter. And how long after you concluded in your
own mind that Senator Domenici and Congresswoman Wilson were
responsible for your being asked to resign did you make a
complaint about that?
Mr. Iglesias. I believe I made public with a general
allegation that two Members of Congress had contacted me in
late February of this year.
Senator Specter. So how long would that have been after you
came to the conclusion in your own mind that they were
responsible for your being asked to resign?
Mr. Iglesias. Approximately a month later.
Senator Specter. Thank you, Mr. Chairman.
Senator Schumer. Thank you. You have only gone 12 seconds
longer than I went, so we're pretty even here.
Senator Feingold?
Senator Specter. I was watching the clock closely.
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman, for holding this
second hearing and for continuing this important investigation
into the unprecedented dismissal of eight U.S. Attorneys in the
past few months.
Obviously it is absolutely vital that our citizens be able
to rely on the integrity of the justice system. It is equally
important that they have confidence that individuals who
represent the Federal Government in the justice system are
above reproach and are acting in the interest of justice, and
not politics, at all times.
Indeed, Attorney General Gonzales testified in January that
he would ``never, ever make a change in the U.S. Attorney
position for political reasons.'' Yet, there is increasingly
disturbing evidence that political motivations played a
significant role in what happened and that the Department of
Justice did its best to obscure that fact.
Initially, the Department of Justice told this Committee
that the dismissals were all performance-related. Then Deputy
Attorney General McNulty conceded at our last hearing that Bud
Cummins in Arkansas was not dismissed due to his performance.
Then we learned that most of the ousted U.S. Attorneys had
received stellar performance reviews right up until their
dismissals. Former Deputy Attorney General James B. Comey even
declared that Mr. Iglesias, who is with us today, was ``one of
our finest''.
It seems to me that an already troubling situation has been
further complicated by this Committee receiving conflicting and
inaccurate information about the reasons why these attorneys
were asked to resign, and this hearing is finally shedding some
real light onto what happened.
Finally, I was deeply concerned to learn that Members of
Congress may have tried to influence an ongoing Federal
investigation that Mr. Iglesias was conducting. I am told that
Mr. Iglesias's testimony this morning was chilling in that
regard.
Intrusion of partisan politics into the prosecutorial
discretion of our U.S. Attorneys and the way they conduct their
investigations and pursue their indictments is absolutely
unacceptable. The Ethics Committee should take these
allegations very seriously and should fully explore what
investigation and action is warranted.
Even an appearance of impropriety can harm our judicial
system. Whatever role political motivations played in the
dismissals of these U.S. Attorneys, I think it's clear that the
administration has not acted in a manner that upholds the best
interests of law enforcement and the reputation of our criminal
justice system. Fortunately, Mr. Chairman, you are giving us
the ongoing opportunity to explore this problem and I really
appreciate that.
I'll ask a couple of questions. First, I want to thank all
the witnesses for their dedication to public service, and
especially for agreeing to testify before us today.
Let me ask a question to all of you about priority setting.
The administration initially talked about performance issues
being the reason for the dismissals, and, when we pressed on
that, it clarified that it was unhappy with the way in which
some of you had set prosecutorial priorities for your offices.
I understand that Mr. McNulty, the Deputy Attorney General,
has said that for some offices there were insufficient
resources being dedicated to certain kinds of immigration
cases. For others, it might have been drug cases, child
pornography cases, or some other issue.
In your testimony to us you state that you each felt an
obligation to set the priorities for your offices in a manner
that reflected the needs of your individual districts, and that
obviously seems reasonable to me.
It also seems to me that this justification for your
dismissal is awfully convenient. With the limited resources
currently available to law enforcement in our criminal justice
system, I wonder whether anyone could meet all the priorities
that the administration has set out.
I guess I'd like each of you to talk a little bit about to
what degree do you believe that a critique of the way that
priorities have been set could be leveled at any of the 93 U.S.
Attorneys serving at any given time; and if every U.S. Attorney
has some shortcomings in the way he or she sets priorities in
the office from the point of view of the Department of Justice,
at what point does that become a legitimate reason for
dismissal?
Ms. Lam, do you want to start off?
Ms. Lam. Thank you, Senator Feingold. I think it is, as you
point out, a difficult job for every U.S. Attorney. Since we
entered, four or 5 years ago, depending on the case, we have
heard--we have been asked to pursue priorities in virtually
every area, ranging from corporate fraud to cyber crimes, child
pornography, firearms, drug cases, fraud cases, and identity
theft. The list goes on and on. Those priorities never really
are ever retracted, they're just added to.
And I think that it is an important and vital part of the
U.S. Attorney's responsibilities to evaluate the crime problem
in his or her district and their interaction with local law
enforcement to see who can carry which area of crime so that
there's the best coverage, if you will.
Terrorism, of course, is the primary goal for U.S.
Attorney's Offices after 9/11, so that used an enormous number
of resources as well. So it is a balancing act that all U.S.
Attorneys engage in, as members of this panel know.
And it does concern me that lack of pursuit of one of 20 or
30 priorities would be used as a reason to remove a U.S.
Attorney, particularly where the dialog had not risen to that
pitch, in other words, there had been no confrontation or
ultimatum and, in fact, quite the opposite, that there was
reasoned discussion and seeming acceptance and understanding by
the Department as to the balancing of priorities in the
district.
Senator Feingold. So you were never informed by any DOJ
people, top people, White House people that they were unhappy
with this aspect of your performance: the priority setting. Is
that right?
Ms. Lam. Certainly not--not to this level. There were
some--there were sometimes inquiries made. I, many times,
engaged in discussion and always felt that the Department
understood, accepted, and supported my approach to various
priorities.
Senator Feingold. So the comments could not be
characterized as signifying that they were unhappy with your
choice of priorities.
Ms. Lam. No, sir.
Senator Feingold. Mr. Iglesias?
Mr. Iglesias. I'd like to just read a sentence from Mike
Battle dated January 24, 2006, to me: ``I want to commend you
for your exemplary leadership in the Department's priority
programs, including anti-terrorism, weed and seed, and the Law
Enforcement Coordinating Committee.'' At no time did I receive
any communication from main Justice that I was not following
the priorities of the Department of Justice.
Senator Feingold. Thank you.
Mr. McKay?
Mr. McKay. Senator, I was never advised by the Department
of Justice that I was failing to follow its priorities or that
my office was ineffective in any way, shape or form. In fact, I
think I had the most current evaluation by the Department of
Justice, which was finalized in September, September 22nd of
2006. I know that my leadership was cited.
More important to me, the work of Assistant U.S. Attorneys
and the staff people in my office was cited, I think, in very
outstanding terms. And so I think it's fair to say, and I know
that you've had witnesses here who have downplayed the
importance of these evaluations, and I can assure you, having
gone through two of them, having 27 people from the Department
of Justice interviewing 170 people in my district and on my
staff for over 2 weeks, is not an insignificant evaluation.
So, the written report from my office--and I have a letter
just like the one my good friend David Iglesias just read,
commencing me for the outstanding work of my office, and the
fact that I met the priorities of the Department of Justice.
So I don't know what they're talking about when they talk
about policy. And none--no deviation was ever cited to me for
the Western District of Washington.
Senator Feingold. Thank you very much.
Mr. Cummins?
Mr. Cummins. The only thing I would add to my colleagues,
of course, it hasn't been alleged against me that my district
failed to meet the priorities, so I'm separated out. But I
would want to say that every administration is entitled to set
their own priorities. I think if your party took the White
House, that that administration would be entitled to reorganize
the priorities of the Department of Justice just like every
other department.
In fact, I think that's one of the strongest arguments for
the political appointment of U.S. Attorneys, because the
administration is entitled to have a leader in each district
that can put the limited resources that we have available to us
behind the items that are identified as priorities. In our
case, Carol referenced 20 or 30, and it depends on how you
count them.
In my mind, we have about seven top priorities. And what
that means to me is, no matter what else is going on, if we
have a case that comes up on terrorism, or violent crime, or
civil rights, or corporate fraud, or child exploitation, we're
going to find the resources, even if we have to rob them from
somewhere else. We are going to respond to those cases.
And that--I think it's useful for us to know what those
priorities are, and it's important that administrations resist
the temptation to add to that list indefinitely at the point
where--because if you have too many priorities, there are no
priorities.
But that being said, I think it's very important and a huge
part of our jobs as Presidentially appointed and confirmed U.S.
Attorneys to recognize the priorities of the administration and
make sure that those are reflected in our district. Every
district is different.
Senator Feingold. Let me just ask one more question, Mr.
Iglesias.
Mr. Iglesias. Yes, sir.
Senator Feingold. You said that when you received the call
from Mr. Battle on December 7th and he told you the decision
came from ``on high'', what did you think he meant by that?
Mr. Iglesias. Two possible sources: White House counsel or
the fifth floor, which is where the AG and Deputy work.
Senator Feingold. Thank you, Mr. Chairman.
Senator Schumer. Thank you, Senator Feingold.
Senator Cardin?
Senator Cardin. Thank you, Mr. Chairman. I very much
appreciate these hearings. I want to thank all of our witnesses
for their service to our country, and to your districts. Your
work is well known, not only as U.S. Attorneys, but in other
areas that you've helped in our legal community.
I just really want to underscore the point that Senators
Schumer and Specter stated, and that is, no one challenges the
administration's right to name the U.S. Attorney or to ask for
the resignation of the U.S. Attorney. That's an absolute right
of the administration.
But as Senator Specter said, that cannot be used to impede
an investigation or to intimidate the work of the U.S.
Attorney's Office. There's just too many examples here that
require us to move forward. We cannot stop. We have to find out
what has happened in this regard.
As Senator Schumer pointed out, in my district in Maryland
there is now a report that our former U.S. Attorney was
threatened because of a political investigation that he was
doing by a member of the Governor's staff. I don't know the
circumstances in that case, and certainly we need to find out
the facts, because it's certainly a very serious allegation.
I guess my question to you is, do you have any information
about what impact this is having on the morale of U.S.
Attorney's Offices in your districts, how people feel about the
way that power may have been used and what this could mean as
far as retention and attracting the best people to go into the
U.S. Attorney's Office, as we have in the past?
I would be just curious as to whether you see a concern
that we should have, that this could have an impact on our U.S.
Attorney's Offices.
Ms. Lam. Well, Senator Cardin, I think that any time a U.S.
Attorney departs, there is some disruption to the office in a
sense, particularly if it's an unknown who is going to take
over afterwards. That's even aside from the circumstances which
occurred here.
Certainly when this occurred, and my office, I think, found
out in a very difficult manner when there was a leak to the
newspaper in mid-January, I think that subsequently when the
press began reporting that the reasons that I was leaving was
because the administration was unhappy with lack of, or
perceived lack of, prosecutions in immigration, I think that
that was very difficult for my office because, as noted
earlier, approximately half of our resources go to enforcing
border crimes, reactive border crimes.
The office works extremely hard, carries a voluminous case
load that I think is unique to the Southwest border, and the
Southwest border districts. Nobody sits on their hands in our
office. Everyone worked very hard to cover both reactive crimes
and proactive investigations. I am here as much to clarify
things that the Committee wants to know as to defend my
office's record and the very good people who work very hard in
that office.
Senator Cardin. I'd be curious. If anyone else wants to
respond, fine. But U.S. Attorneys generally have had the
reputation of being above the political fray. People really
wanted to work in the U.S. Attorney's Office because they know
they will have the freedom to do what's right without being
intimidated. It would just seem to me that what has happened
here will have an impact on recruitment.
Mr. Cummins. Senator, what I would say about that is, I've
been real concerned about the impact on my office, not because
the office can't carry on their good work without me or any
other U.S. Attorney.
The fact is, the backbone of these offices are the career
people who tend to be nonpartisans, and stay there, in some
cases, quite a long time. And they're going to get the work
done with my leadership or somebody else's leadership.
So, it's not that I'm irreplaceable, but I was concerned
about the manner that these decisions--not only the decisions
themselves are probably of most interest to you, but from my
perspective they were just handled so poorly.
And I really felt like that that demonstrated an
insensitivity to the effect on my office and other offices
because it really created some awkward situations and put me in
a position where I valiantly attempted for 6 months, and
failed, to kind of conceal the facts of how things were going
because I just couldn't see, if I told my office exactly what--
how the decision had been implemented, that that wouldn't
somehow inhibit my successor's ability to be successful in the
office. And the office was important to me, and so--and the
people there are important to me.
So I just--I'm concerned about that. In retrospect, I
wish--I was able to--actually and gratuitously to stay quite a
while after I got the call in June. I didn't really have any
immediate plans and I was kind of dragging my feet deciding
what I wanted to do next. As things worked out I was able to
stay.
In retrospect, in spite of the, you know, fact I wouldn't
have gotten a check every week, I wish I'd have left pretty
quickly after I had gotten the call, because what--I was very
proud of my leadership and the time of working with my office
up to the time of the call.
After that, it just got kind of weird and I just feel like
it was a bad work atmosphere. And I feel like I could have
cured that by just going ahead and getting out the door.
So, I think it's a good question because I think people
should be focused on the effect on the career people that are
actually doing the work out there. They're not particularly
partisan and they kind of tolerate the politics of the
necessary changes in the leadership, but I don't think they
probably would appreciate it if they perceived that some kind
of extra political activity was going on that was directly
impacting their offices like that.
Senator Cardin. I would just hope that one of the messages
from this hearing, Mr. Chairman, is that we're doing these
hearings for several reasons, one of which is to make it clear
that we want the U.S. Attorney's Office to maintain its high
standard of independence and we applaud those who have made a
career in the U.S. Attorney's Office, as well as those who have
come to the U.S. Attorney's Office with extraordinary talent in
order to serve their country and community, and that this
Committee is committed to making sure that tradition is
maintained and continued. If there was a problem, we want to
make sure that never happens again. Thank you very much, Mr.
Chairman.
Senator Schumer. Thank you, Senator Cardin.
Senator Whitehouse?
Senator Whitehouse. Thank you, Mr. Chairman.
Thank you all for your presence here today. I know it's not
an easy day for you. Welcome to the National Association of
Former U.S. Attorneys, the consolation prize.
Mr. Cummins, let me ask you, first, I'd like to ask you to
put your U.S. Attorney hat back on. You're still in office.
Think of a significant grand jury investigation that you led as
a U.S. Attorney in your district.
Consider that a significant witness in that grand jury
investigation has just come into your office to relate to you
that, prior to his grand jury testimony, he was approached
about his testimony in exactly, or essentially exactly, the
words that Mr. Elston approached you. What would your next step
be as a U.S. Attorney?
Mr. Cummins. Well, I think I know where you're driving with
that question. And I'll answer it, but I'd like to also maybe
qualify it. We take intimidation of witnesses very seriously in
the Department of Justice and in the U.S. Attorney's Offices,
so we would be very proactive in that situation.
I would qualify that by saying that at the time this
discussion was had, we weren't under subpoena. The idea of
testifying was just kind of a theoretical idea out there. I
would say, to the best of my ability to characterize the
conversation I described, to the extent we talk about testimony
at all, it was the idea that running out and volunteering to be
part of this would not be viewed charitably by the people that
it would affect.
Senator Whitehouse. But if that sort of approach had been
made to a witness in an active proceeding that you were leading
and you were extremely proactive about it, that would lead you
where?
Mr. Cummins. Well, we would certainly investigate it and
see if a crime had occurred.
Senator Whitehouse. And the crime would be?
Mr. Cummins. Obstruction of justice. I think there's
several statutes that might be implicated, but obstruction of
justice.
Senator Whitehouse. Mr. McKay, the same question to you.
You're in your U.S. Attorney's chair. The conversation that Mr.
Cummins related to you in this e-mail is related to you about a
witness in a pending grand jury matter. What would the next
step be that you would take as a U.S. Attorney?
Mr. McKay. I would be discussing it with the assigned
prosector and Federal agents.
Senator Whitehouse. With regard to?
Mr. McKay. With regard to possible obstruction of justice.
Senator Whitehouse. Mr. Iglesias, I don't know that I need
to repeat the question at this point. I assume you--
Mr. Iglesias. I was listening.
Senator Whitehouse. Yes.
Mr. Iglesias. Same answer, sir.
Senator Whitehouse. Nothing gets by you, it doesn't seem.
Mr. Iglesias. Same answer, sir. I would contact the career
AUSA and probably the FBI and talk about, what's--what's the
evidence we have to maybe move forward on an obstruction
investigation.
Senator Whitehouse. Ms. Lam?
Ms. Lam. Fundamentally the same answer. Witness
intimidation.
Senator Whitehouse. It also strikes me that in our complex
system of checks and balances in this country, one of the
helpful checks and balances is what I consider to be a healthy
tension that exists between main Justice, which has its
priorities and its initiatives, and the U.S. Attorneys in the
field who know their judges, who know their locations, who know
their agencies, and who, as you said, Ms. Lam, have an
understanding of where within the mosaic of enforcement they
can best deploy their resources compared to State and county
municipal resources.
And it strikes me, as somebody who has lived in that
environment for a while, that this purge, if you will, one
could consider a fairly disproportionate response. And I'm
wondering if you would comment on what effect you think this
will have on your colleagues with respect to that healthy
balance and the extent to which push-back against the
Department is used, a positive thing in certain situations,
again, in our system of checks and balances.
Specifically, Ms. Lam, in your case, the extent to which
your role as really, in many respects, our forefront U.S.
Attorney on national public corruption cases, what chilling
effect--the fact that this was applied to you--might have on
your colleagues.
Ms. Lam. Well, Senator Whitehouse, I think the difficulty
here, as I think I've tried to indicate earlier, was sort of
the mystery that surrounded the calls we received on December
7th.
Generally, I think if there were events that were going to
lead up to a request for resignation there would be some sort
of ramp-up, some sort of transparency to what the issue was at
least between the U.S. Attorney and the Department of Justice.
I think the fact that the recipients of the call were all
shocked and trying to inquire what the reason was, I think is
what, for me, causes the greatest problem for the remaining
U.S. Attorneys, that there's no notice or awareness, and
therefore it becomes a guessing game as to how it is that the
Department is displeased.
And, of course, now we've heard some of the after-the-fact
explanations and nobody really knows what emphasis to put on
them, or whether they actually played a part in the initial
decision.
So, again, without tying it particularly to my situation
and the particular investigation, I think that is the concern,
is that there's mystery and, therefore, one then says, well,
could it be because of this, or could it have been because of
that, and that's the chilling effect: perhaps I should just
play it safe and try not to displease anybody. I don't think
it's in the best interests of the country to have U.S.
Attorneys who just want to play it safe.
Senator Whitehouse. Mr. Iglesias?
Mr. Iglesias. I'm not sure I can add a whole lot more to
what Ms. Lam mentioned. But I think what this entire
controversy about is separation of powers and the independence
of the U.S. Attorney, which historically has been true
regardless of the administration in power.
What happened to me, I believe, is a violation of the
separation of powers and also calls into question if political
pressure does result in less independence. U.S. Attorneys have
to be independent. Politics cannot play a part.
I hope the long-term effect of these hearings is that any
future interactions between the branches relative to
investigations is done correctly, because in my case it was not
done correctly.
Senator Whitehouse. Thank you.
Mr. McKay?
Mr. McKay. Senator Whitehouse, I want to say that I have--I
continue to have the greatest respect for my currently serving
colleagues around the country as U.S. Attorneys, and I do
believe that, notwithstanding the speculation and the upset
that's occurred over the forced resignations of myself and my
colleagues, that they will continue to pursue the qualities
that we hope we demonstrated in ourselves, which are
prosecutorial independence, integrity, fairness, and a
rejection of the idea that partisan politics or political
favors in any way enter into our work. I know they did not
enter into mine.
So whether others acted on those things, I--I hope that's
not true. And I do have confidence in the able men and women in
my office in Seattle, in Tacoma, and I do also in the currently
serving U.S. Attorneys, and I think they will stand up to this,
and I know they will.
Senator Whitehouse. It does make it a tougher environment
for policy disagreement with main Justice though, doesn't it?
Mr. McKay. I would say that they will be as careful as
always.
Senator Whitehouse. Well said.
Finally, Mr. Cummins?
Mr. Cummins. The one thing about--as I was explaining to
Jody, what a U.S. Attorney was when I got to be one, I told
her, with some excitement, that it was a really neat job and
that you might have to go out and make really tough decisions
and prosecute powerful people, including political people in
your own party, and at the end of the time I was U.S. Attorney
we might not have a friend in town if I did the job right.
And she kind of looked at me funny like, why do we want
this job? But I remember thinking along those terms that if you
did your job right as a U.S. Attorney, you don't know where
you're going, where it will lead you, and you might have to
make some really tough decisions. And as David said, you might
have to not give information to people that you've been close
friends with, and things like that.
But it never occurred to me in that dialog with my wife or
in that thinking--thought process, that the Department wouldn't
insulate me, even if became unpopular with my friends at home,
that as long as they were convinced that I was following the
book and I was doing my duty, that they would insulate me from
that criticism even if we didn't get in the country club.
And it doesn't really relate to my case, but I've got to be
honest with you, I was very concerned to see some unnamed
sources at the Department suggest that in the case of some of
my colleagues, that part of the reasoning for their dismissals
might have had something to do with Congressional disapproval
in their home districts.
That, without some kind of internal investigation to see if
it was merited or not--I don't like to use the word
``chilling'' very much, but that is a little bit chilling,
because if you have to keep everybody happy, you can't really
do this job right because sometimes you have to make some
really tough decisions. So, I do think that that's an important
point.
Senator Whitehouse. Mr. Chairman, thank you. I just want to
say how impressive I feel these witnesses have been in their
demeanor and in their candor with all of us, and I, for one, am
proud that they served us as U.S. Attorneys.
Senator Schumer. Well, thank you, Senator Whitehouse. I
couldn't agree more. They make their own case extremely well
about why they deserve to stay on.
We have a vote that began about 7 minutes ago. I think what
we'll do is break briefly and resume at 12:15. Senator Sessions
has his first round, and some of us have our second round. So
we will have a brief recess for 10 minutes.
[Whereupon, at 12:05 p.m. the hearing was recessed.]
Senator Schumer. The hearing will come to order once again.
I do not see Senator Sessions here, so I am going to take
my second round. Then we will go to Senator Sessions, then one
on our side, one of their side, second round.
I know that all of you have another appointment at 2 p.m.,
so we're going to try to wrap up here by 1 p.m. at the latest.
OK.
I'm interested in the conversations you each had with Mike
Battle when he called you. I know Mr. Iglesias mentioned
something of it.
Can you each tell us about that? I'm interested to just
hear what he said. Did he give you any reason, did he express
any regret, did he thank you for your service? I know Mike
Battle. He served in the Western District of New York. In fact,
I fully supported his nomination. I think he's a good man. And
as I mentioned in my statement, I have questions as to why he
has stepped down.
But let me ask each of you. Why don't we start with you,
Mr. Cummins?
Mr. Cummins. Of course it's been some time, but the best I
remember, Mike was obviously--
Senator Schumer. Did he call you as well? Because you were
not one on the December 6th.
Mr. Cummins. Yes, sir. Mike Battle called me in June of
last year. I don't have the exact date. He--he and I are very
friendly and, you know, he's a good man and I've enjoyed being
his colleague as a U.S. Attorney. I thought he's done a great
job as the executive director of EOUSA.
He called and said, ``This is a really tough call to make,
so I'm going to just get right to the point.'' I don't remember
who he--somebody wants your resignation. I don't know how he
phrased it, but he said--
Senator Schumer. Did he name a person?
Mr. Cummins. No. No individuals were identified in the call
of who made the decision, or why, or anything like that. He
said--well, they did say--he did eventually say why. He said--
he may have said the White House, he may have said the
administration would like your resignation and would like you
to be ready to resign as soon as your replacement could be
ready.
And of course I was--well, to be honest with you, I had
never heard of anybody, absent malfeasance, being asked to step
down so I thought maybe he had McKay and Iglesias on a
conference call about something completely different and this
was a joke, so I kind of waited for the laughter and it didn't
come.
And so then I realized he was serious and said, ``Mike,
have I done something wrong?'' And he said, ``No, no, no. It's
absolutely to the contrary. You've done a great job. This is
entirely about the administration's desire to give somebody
else the opportunity to serve.''
Senator Schumer. Did he mention Griffin's name?
Mr. Cummins. No, sir.
Senator Schumer. He did not?
Mr. Cummins. No.
Senator Schumer. So you found out about that shortly after
that?
Mr. Cummins. Eventually it became apparent that Mr. Griffin
was the person that was coming in.
Senator Schumer. Mr. McKay, your call occurred on December
7th.
Mr. McKay. Yes, it did, Senator. I received a phone call
from Mike Battle in the morning of December 7th in Seattle. He
advised me that the Department--that the ``administration'',
was the word he used, sought to make--''sought to go in a
different direction'' and that I would be asked to tender my
resignation effective no later than the end of January.
I think after a fairly stunned pause I asked him, because I
did then, and still do, consider him a friend, ``Mike, what is
this about?'' He said, ``John, I can't give you any additional
information than that.'' I waited a second and I said, ``I
can't be the only one getting this call. Are others being
called?'' And he said, ``John, I don't have any information I
can give you on that question.
And I said, ``Is there anything that you've been authorized
to tell me?'' And he said, ``No.'' I said, ``OK.'' And he said,
``One last thing, which is, you know, sometimes it's reasonable
for someone getting a call like this to conclude that you've
done something wrong.'' He said, ``That's not always the
case.''
I didn't really know what he meant then and I didn't ask
him further. It was clear that he was delivering a message he
didn't want to deliver to a friend, and I respected him for it
and ended the call.
Senator Schumer. When he said ``the administration'', did
you assume that was from outside Justice, outside the Justice
Department?
Mr. McKay. I didn't know what to think, Senator, because we
were all aware that only the President can ask us to resign.
And, of course, I'm a lawyer. I was waiting to hear the words
``the White House'' or ``the President''. I did not hear them.
I think that the use of the word ``administration'' was
carefully chosen to leave it vague.
Senator Schumer. Mr. Iglesias, you mentioned that they said
``on high''. Did you make any assumptions as to where that
would be? I think you mentioned that to one of my colleagues
here. You thought it would be the Deputy Attorney General or
the White House counsel?
Mr. Iglesias. My assumption, Senator, was the White House
counsel, the AG's office, or the Deputy's office.
Senator Schumer. And how about you, Ms. Lam?
Ms. Lam. I'll start by saying I also consider Mike Battle
to be a friend and a very good man. He did call me on December
7th. He indicated that the Department of Justice wanted to
thank me for my years of service and that they wanted to take
my office in a different direction.
He asked for--and that they would like my resignation,
effective January 31st. I think I responded something like,
``Wow.'' And then, ``May I ask why?'' And he said that he did
not know. I asked him whether this was normal in some way, and
he said that--something to the effect that although he had
heard of things like this happening in the past if something
bad had happened, this was certainly the fire time in his
tenure. I did not have any indication that there were others
involved at that point.
Senator Schumer. Right. But none of you assumed that it was
Battle's decision. I think it's fair to say that every one of
you thought that Mike Battle was not making this decision
himself, but rather was passing a message. Is that correct?
Ms. Lam. That's right.
Senator Schumer. Let the record show all four witnesses nod
their head in the affirmative.
Mr. Iglesias, I have a couple of questions for you, because
one of the reasons that the Justice Department said you had a
performance problem was that you were an absentee landlord.
Just to get the record clear here, isn't it true you served
in the Navy Reserve, which required you to serve your country
for approximately 40 days a year?
Mr. Iglesias. That's correct, sir. In fact, I took my call
from Mike Battle, ironically, on Pearl Harbor Day as I was
coming back from Navy duty in Newport, Rhode Island. And I'm
required to serve at least 36 days of duty per year. Sometimes
I add a little extra duty, so it probably averages out to 40,
maybe 45 days of duty per year.
Senator Schumer. Didn't the Department know you were a Navy
Reservist when it recommended you for the U.S. Attorney
position in the first place?
Mr. Iglesias. I'm very proud of my Navy service and it was
on my resume, featured very prominently.
Senator Schumer. How did you feel when they accused you of
absenteeism, and you knew that the primary reason you were out
of your office was to be in the Reserve?
Mr. Iglesias. Well, it's very ironic, since the Department
of Justice enforces USERRA, the Uniform Services Employment
Rights and Reemployment Act, that ensures that Guard members
and Reserve members have full employment rights and are not
discriminated against on the basis of their military
affiliation.
Senator Schumer. Right. And were you ever told before that
that you were in danger of being fired or that your absences
were hurting the U.S. Attorney's Office in New Mexico, or
anything to that effect?
Mr. Iglesias. Never, sir.
Senator Schumer. No.
And I take it none of you were given any inkling of any
performance problems that Justice had with you. Is that
correct, Mr. Cummins?
Mr. Cummins. No, Senator.
Senator Schumer. Mr. McKay?
Mr. McKay. There had been some discussion by individuals in
the Deputy Attorney General's office about a law enforcement
information sharing system that I was heading, unrelated to
individual prosecutions. But other than that, no, Senator.
Senator Schumer. Right. And that law enforcement system,
known as LINKS, which Jim Comey, somebody I am very fond of and
think did a wonderful job, he hailed it as ``visionary''. Isn't
that correct?
Mr. McKay. That's correct, Senator.
Senator Schumer. It would make no sense for them to fire
you because you thought you were arguing that LINKS would be a
good system for you or others to use.
Mr. McKay. Well, and I think the system is seen as a
national model. And I don't take credit for that for myself,
Senator, but it is seen as a model. I had the full support of
Deputy Attorney General Comey, as well as chairing a 15-member
Committee of U.S. Attorneys.
Senator Schumer. Right.
And one more for Ms. Lam. When we met with Deputy Attorney
General McNulty, he said one of the reasons they were concerned
with you was that you didn't have enough reentry prosecutions.
OK. He then said that they had let you know that they thought
you should up your reentry prosecutions.
I then asked him, ``Did she? Did she meet your
expectations?'' And he said, ``I don't know'', which sort of
rung a little hollow. If this was one of the reasons to dismiss
you, you would think that they would at least inquire whether
you had met their needs of reentry prosecutions.
Can you comment on that? Is anything I've just mentioned
wrong?
Ms. Lam. No, Senator. I can't think of any specific time
when--when I was told to up my reentry prosecutions. In fact,
as I indicated, my interactions with the Department following
letters received from Congressman Isa and some of his
colleagues were positive. I subsequently met with Congressmen
Isa and Sensenbrenner.
I related the contents of that. With the Department's
approval I related the contents of that conversation to the
Department and how--I explained how our efforts were directed
toward the worst of the worst, and we were getting lengthier
sentences on them.
The response from the Office of Legislative Affairs, I
believe, was something along the lines of, good, it sounds like
it went well, and perhaps they learned something from your
meeting.
Senator Schumer. Right. OK. Now that we're at the
conclusion of this hearing I just want to get this on the
record again.
To each of you, based on everything you know sitting here
today, do you believe that you were fired for any failure of
performance, as alleged by the Justice Department? Again, if
you'd answer it ``yes'' or ``no'', that would be helpful.
Mr. Cummins?
Mr. Cummins. No. Senator Schumer. Mr. McKay?
Mr. McKay. No, Senator.
Senator Schumer. Mr. Iglesias?
Mr. Iglesias. No, sir.
Senator Schumer. Ms. Lam?
Ms. Lam. No, sir.
Senator Schumer. Thank you.
I'm now going to turn the questions over to Senator
Sessions. I see we have Senator Graham here. So if each of you
takes the allotted 10 minutes, then we'll wrap up our
witnesses, who have another appointment at 2 and will be able
to have a little time to get over there, maybe have a little
lunch, et cetera.
Senator Sessions?
Senator Sessions. Thank you, Mr. Chairman.
I have great respect for the U.S. Attorneys. It was a
delight beyond measure to be selected. I had been an Assistant
U.S. Attorney. I loved the work. Had been out in private
practice for 4 years. When President Reagan gave me the
opportunity to serve again, it was a tremendous thrill.
I think being U.S. Attorney is better than being an
Assistant U.S. Attorney, but not much. Got a little more
headaches, as you can tell, all of you. You certainly don't
have any guaranteed tenure. You serve at the pleasure of the
President.
You are required, every day, to try to do the right thing.
I did my best to do that. I do think that you have to be strong
in that position and do the right thing. You've just got to do
what you believe is right.
However, a U.S. Attorney is a part of the Department of
Justice. It serves at the pleasure of the President. There are
certain priorities and so forth that any administration has a
legitimate right to pursue and to expect its prosecutors to
pursue.
There are certain cases, if not brought by the U.S.
Attorney, no one else can bring them and so they're just never
prosecuted. So a U.S. Attorney who flatly refuses to
significantly prosecute certain types of crimes, to me, I
always thought were placing themselves above the Congress who
made it a crime to begin with. Policies are pretty important.
But I just am looking. Ms. Lam, I always thought that gun
prosecution was a fabulous part of what the Department of
Justice should do, and looked at the numbers that you brought.
It was a priority of the Department of Justice and
President Bush, is that not correct? Like, in 2002, you
prosecuted 24 cases, 2003, 17. This is under 922 and 924. 922
is Possession After Conviction of a Felony, and 924 is Carrying
A Firearm During the Commission of a Crime. Is that correct?
Ms. Lam. [Nods in the affirmative]
Senator Sessions. Those, to me, are the bread-and-butter
charges. That's what you bring much of: 2004, 18; 2005, 12;
2006, 17.
For the same period, the Southern District of Texas
prosecuted 946. The Western District of Texas, 894. The
District of Arizona, 897. The district where I prosecuted, the
Southern District of Alabama, with one-fifth of your resources,
439.
So wouldn't you agree that the President or the Attorney
General should be somewhat concerned that you are not in synch
with the policies of the Department of Justice with regard to
prosecuting gun cases, that you had a policy that was different
from the policy of the President?
Ms. Lam. Well, Senator Sessions, what I would say is that
the Project Safe Neighborhoods, which was the firearms
initiative, was actually a joint Federal and State initiative
in the sense that it was looking at the community as a whole.
When Deputy Attorney General Jim Comey came to my district,
I believe in 2003, we sat down and talked about firearms
prosecutions in our district. And what I explained to him is
that San Diego, the Southern District, is sort of a unique
situation because we have only two counties in our district,
and 95 percent of the population resides in one county, as
opposed to some of my colleagues, most of whom have many, many
counties which lie within their districts and, therefore, many,
many District Attorneys, some of whom believe more than others
in enforcing the gun laws.
California also has very strong State gun laws and
enhancements penalties for firearms use. I canvassed the local
law enforcement community and what they told me was that they
were very satisfied with the gun prosecutions, the firearms
cases, the problems they had because it was very well handled
by the District Attorney in San Diego County.
I talked to the Deputy Attorney General about the situation
that we had, 179,000 people arrested along the Southwest border
with Mexico in California alone, which was my district, and
that half of my resources were already devoted to taking the
worst criminals off the street under 1326 Alien Reentry
Program, the criminal reentry program.
Senator Sessions. Well, you know, I know you have a lot of
challenges, and I'll get to that in a moment, on the
immigration area. But it doesn't take that many resources to
prosecute a 922 case. I mean, you bring the charge, most of
them plead guilty, and you go on to the next case.
Ms. Lam. We do those--
Senator Sessions. I picked up a file from my assistants and
gone down and tried the case because they had a conflict, with
a few hours' notice.
Ms. Lam. Senator Sessions, it's a zero sum game in our
district. With thousands of alien cases to do, we could do
hundreds of gun cases, but then nobody would do the criminal
alien cases. The District Attorney can't handle those.
Senator Sessions. Well, let's talk about the general alien
cases. I don't want to go into a whole lot of detail. But, I
mean, you all have made these complaint. According to the
Sentencing Commission, you prosecuted in 2006, after being
discussed with this, 1,411 illegal alien prosecutions, whereas
the Southern District of Texas did 4,132, the Western District
of Texas, 2,699, and the District of Arizona, 2,193.
Ms. Lam. Well, as I--I'm sorry.
Senator Sessions. So I think there was some concern there.
Several of your policies, which I understand that you have a
right to have policies and should set some policies, they felt
your policies were too restrictive in the kinds of cases that
you would prosecute.
There may be a good-faith policy, but let me just ask you
first on this, and then I'll let you respond. With regard to
the policy, you do not contend, do you, that a U.S. Attorney is
free to have a policy that is unreviewable as to what kind of
cases they would prosecute?
Ms. Lam. A policy? I would expect that if the Department
had any concerns, they would feel free to discuss that with the
U.S. Attorney.
Senator Sessions. And if the appointing authority had a
different policy and wanted you to carry out a different
policy, and you in good faith said I think my immigration
policy is good, then it's you or the Attorney General who wins
under that circumstance.
I mean, doesn't the Attorney General and the President get
to have someone as U.S. Attorney who executes their policies?
Ms. Lam. There was never a disagreement. What I was told,
was I get--specifically, I was told, you're starting from a
different baseline. There was never any disagreement.
Senator Sessions. So you never received any counsel about
concerns from Washington that your policies might not--and your
prosecution numbers weren't in harmony with what they thought
they should be?
Ms. Lam. There was discussion several years ago. There were
questions asked about the numbers of prosecutions. I explained
the situation in my district. I was led to believe that they
understood and I informed them several times that we were fully
supportive of the initiative, and we were working to find cases
where the District Attorney's office was getting substantially
less time than we could get federally.
I would note that in the first 2 months of 2007, we brought
more firearms charges than in the entire year in 2006. So, many
of our investigations were long-term undercover investigations
that yielded much larger targets than perhaps we would have had
we just been doing many of the cases that you were describing,
Senator.
Senator Sessions. Well, I know a lot of the U.S. Attorneys,
I used to think they wouldn't prosecute a bank fraud case
unless it was $200,000. They thought that was something to be
proud of. We have these high standards of prosecution.
As a result, they prosecuted very few cases because they
thought other cases were beneath their prosecution. But I would
just say, it's not the--ultimately the U.S. Attorney is
amenable and, I think, subject to the policies of the President
who appoints them.
Let me just mention, I believe strongly that a U.S.
Attorney should not be interfered with in prosecution matters.
I don't really think that's something that should occur. I have
never called a U.S. Attorney, since I have been in the Senate,
to ask them to do or not do something on a case or a
prosecution. I think that would be wrong. But I'm not sure non-
lawyers fully understand all that and have thought that
through. I'm aware of the Department of Justice manual and what
it says; others may not have been aware of that.
Senator Schumer. We are trying to keep this to 10 minutes
because of their time constraints, so if you could just wrap
up, Senator Sessions.
Senator Sessions. OK. I saw the green light.
But the U.S. Attorney manual, Mr. Iglesias, would say that
if you received a contact from a Member of Congress that would
impact your prosecution, you should report that to the Attorney
General. Isn't that correct?
Mr. Iglesias. Yes, sir.
Senator Sessions. And I would just say, the policy of the
Department of Justice is absolutely rigorous in defending, in
my experience, a U.S. Attorney who is doing the right thing and
handling those cases.
If you had done so, if you'd felt in any way that you had a
problem, I think if you'd call that to the attention of the
Department of Justice, I believe you would have been affirmed
in your best judgment about how to handle a case.
Senator Schumer. OK. Let me call on Senator Graham. I'm
sorry, Senator Sessions. Just, we have a time limitation here.
Senator Graham. Thank you.
To each of you, I'm trying to understand a little bit. How
long have each of you been a U.S. Attorney, starting with you,
ma'am?
Ms. Lam. I've been U.S. Attorney since September 4th of
2002.
Senator Graham. OK.
Who was the U.S. Attorney before you?
Ms. Lam. There had not been a confirmed U.S. Attorney since
1998. Patrick O'Toole was the interim U.S. Attorney before I
came in.
Senator Graham. OK.
Mr. Iglesias. I started my duties on 16 October 2001
through 28 February 2007.
Senator Graham. OK.
Mr. McKay. October, 2001 to January 26, 2007.
Mr. Cummins. December 21, 2001 to December 20, 2006.
Senator Graham. Those are long stints, aren't they, as U.S.
Attorney? In my State, I'm trying to get as many people through
that job as I possibly can, particularly young lawyers who I
see to have great potential serving down the road on the bench.
I just--I understand. Do you all agree that this an employment-
at-will job?
Mr. Cummins. I think I can speak for all of us, Senator,
that we serve at the pleasure of the President.
Senator Graham. Yes. And I think President Clinton, when he
got into office, he asked everybody to submit their
resignations so he could get some people in. That's OK with you
all, right? If you got a call from the Attorney General
tomorrow saying, we appreciate what you've done, we want to get
somebody new, nobody objects to that process?
Mr. Cummins. I had personal feelings when they called me
about it, but those were really irrelevant. The truth is, they
can make a decision for any reason or no reason. I would
suggest to you, Senator, that in some of these cases the
problem is, we didn't--none of us has certainly publicly
protested these decisions.
We were all going to accept the fact that we served at the
pleasure of the President. It was only when Congress took the
administration to task and the Department endeavored to try and
explain these decisions to some of our detriment that any of us
spoke up at all.
Senator Graham. Yes. And let me just say this about each
one of you. I think you understand the nature of the job, that
it's a political appointment but it's also a public
responsibility. Once you get there it's not your job to play
politics, it's your job to enforce the law.
These are long stints. I mean, in South Carolina, I don't
know what the longest-serving U.S. Attorney is in an 8-year
period, but I consciously try to cycle people through just
because it's a wonderful experience to have. I mean, it's not a
lifetime job. It's going to end 1 day. The more experience you
can have, the more people who can have that experience, the
better.
Your problem is, you're caught in this political contest
and you feel like your reputations have been unfairly
besmirched. And let me tell you, I sympathize with that, I
really do. I don't want anyone to leave this job and having
their reputations or performance questioned.
I do stand by the idea that everybody in your job could be
asked to leave tomorrow and really the Congress has no business
saying that's good or bad, to be honest with you, as long as
it's done for the right reasons. And the question is, the right
reason, to me, is I want some other people to have that
experience. And I don't think anybody really disagrees with
that.
Now, to you, Mr. Iglesias, when you got the contact from
Senator Domenici, did you report it to anybody up the chain of
command?
Mr. Iglesias. I did not. No, sir.
Senator Graham. OK. And I know you've got a personal
relationship with Senator Domenici. I guess what I'm trying to
figure out is, in my business we get complaints all the time
about what you all do or don't do. You try to weed through this
the best you can. And especially the more profile the case, the
more contacts you get.
So have all of you been called by a politician at one time
or another to be asked about a case?
Mr. Cummins. I never have. I've talked to politicians, but
never about cases.
Senator Graham. OK.
Mr. McKay. I have previously testified here, Senator,
before you were here about a phone call that I received on a
pending preliminary inquiry.
Senator Graham. Yes.
Ms. Lam. Never about a specific case.
Senator Graham. OK. All right. Well, we're just going to
have to work through this. From what I can tell, maybe your
case loads are out of line with Department of Justice, but
you've been there 6 years, so obviously whatever performance
problems people allege you had, they sure ignored it for a long
time.
So my point is, there's a lot of politics going on here and
I don't want you all to get caught up in it.
So, Mr. Chairman, as we work through this, let's don't
change the rules in the middle of the game and let's don't make
up reasons why we replace people, and let's make sure that what
is an inquiry about a case is properly explained on both sides.
I look forward to getting this matter behind us, and
Congress needs to do a better job. Obviously the administration
needs to do a better job, and maybe we'll learn something from
all this. Thank you very much.
Senator Schumer. I thank my colleague. I'd just make one
point. If the policy was, after 4 years or 6 years, people
should retire, they ought to state it publicly. They ought to
apply it across the board. No one has.
We're going to adjourn the hearing. Senator Specter seemed
to want a second round, but I don't see him coming in here. All
right. Then I am going to make just one final statement. We're
trying to get you out of here as quickly as possible.
[Pause]
Senator Schumer. Senator Specter?
Senator Specter. When we are called back for votes and
returned, I know we've kept you waiting. It's somewhat
disjointed, but there are interruptions we just can't avoid.
Mr. McKay, you commented about a call you got from Ed
Cassidy, who is the Chief of Staff to whom?
Mr. McKay. Representative Doc Hastings, of Richland,
Washington, Senator.
Senator Specter. And he was making an inquiry which you
thought improper, but he didn't go too far once you pulled
back. Is that the sum and substance of what happened?
Mr. McKay. Senator, I would rather, I guess, characterize
it myself, which is, I received a phone call. I, like my
colleague, Mr. Iglesias, was immediately concerned to be taking
a phone call from a Chief of Staff in the midst of the election
brouhaha, and carefully listened to what he said and what he
asked. He asked about the status of the case, which I gave him,
publicly known information.
Senator Specter. What was the status of the case?
Mr. McKay. Well, there was no case, Senator. We had both
the Seattle FBI and my office, the U.S. Attorney's Office in
Seattle, had publicly indicated that we would receive any
complaints from any source regarding potential criminal
conduct, whether it be election fraud, whether it be felon
voters, whatever it would be, because this was, as you can
understand, on the front page of every newspaper. So, that was
publicly known.
But, of course, had we been investigating the case we would
not have discussed it any further than that. So I laid that out
for him and then he proceeded to push the conversation beyond
my statement of what the status was.
Senator Specter. And what did he say specifically to push
the conversation?
Mr. McKay. I don't--I would be surprised if he got an
entire sentence out, Senator, because I knew I had just
communicated to him all that I could communicate. I can't tell
you what his partial sentence was because I interrupted him.
Senator Specter. You stopped him.
Mr. McKay. I did, Senator.
Senator Specter. OK.
Mr. McKay. And that is exactly what I did. I stopped him
and I told him, I'm sure you're not about to ask me anything
about an investigation that isn't public or to try to lobby me
about that. And he agreed that that was not why he was calling.
Senator Specter. You asked him that leading question.
Mr. McKay. I did ask him a leading question.
Senator Specter. OK. And you got the expected answer?
Mr. McKay. I did get the expected answer.
Senator Specter. So that pretty much ended it.
Mr. McKay. It did end the conversation. And again, I felt
that it was sensitive. I wanted to relate it immediately, and I
called in the Criminal Chief and the first assistant to relate
the entire conversation the moment it ended, and to ask if they
concurred with me that I had stopped the call before it crossed
the line, and they--
Senator Specter. And you did that because you wanted some
corroboration of your concern with some other officials who
were in a position to either agree or disagree with you.
Mr. McKay. Yes. I mean, it was--I think it was prudent for
me to call them in and ask if they concurred the decision would
be mine, but I wanted to see if they had the same impression
that I did or if I had missed anything.
Senator Specter. Uh-huh.
Well, that sounds to me as if, as we lawyers would say, you
were protecting the record. You wanted to be on record as
having called this to someone's attention.
Mr. McKay. No, Senator. That would be much--I don't even
recall having that thought. I felt the call was significant, I
was troubled by the call, and I wanted to consult with my two
most senior advisors on the impact of that call, and so I--
Senator Specter. And you--
Mr. McKay. I assiduously wanted their input.
Senator Specter. OK.
If the conversation had gone further, if you thought that
the call had been improper, that it contained questions which
were improper, would you have reported it to the Department of
Justice?
Mr. McKay. Yes. Under those circumstances, I would. Again,
that was--
Senator Specter. And why would you have done that?
Mr. McKay. Because I was aware of the Department policy to
report such contacts and, in fact, is why I called in my senior
people, to ask if they concurred that I had not allowed this
individual to cross the line by interrupting him, and they--
they did agree with me. And we decided at that point it was
appropriate for me to take no further action.
So, Senator, I was not really interested in--if I was
interested in documenting that call I probably would have
created a memorandum of it, which I did not. But I am quite
certain that my first assistant and Criminal Chief recall that
conversation vividly.
Senator Specter. If there had been--this is a little
repetitious, but I want to be sure I understand you. If you had
thought that what the caller had done was improper, had gone
that far, you would have reported it to the Department of
Justice?
Mr. McKay. I'm just having trouble with the wording. I
think so. I think if I felt that it was clearly improper, I
would have reported that.
Senator Specter. Do you think Mr. Iglesias should have
reported to the Department of Justice the calls he got from
Senator Domenici and Congresswoman Wilson?
Mr. McKay. Well, Mr. Iglesias is here and can say what he
thinks. I believe Mr. Iglesias wishes he had done that.
Senator Specter. Excuse me?
Mr. McKay. I said, I believe Mr. Iglesias has already
testified that he wishes he had done that.
Senator Specter. Mr. Cummins, I've gone over your e-mail
and I'm searching for the specifics as to what Mr. Elston said
to you. There aren't specifics in the e-mail, as I read it.
Could you, referring to the e-mail, show where what you
said here reflected what Mr. Elston said to you?
Mr. Cummins. Senator, I really had forgotten there was an
e-mail until I saw that--since I wrote it, I saw it for the
first time last night.
Senator Specter. How long after your conversation with Mr.
Elston did you send this e-mail?
Mr. Cummins. I would say within an hour.
Senator Specter. Uh-huh.
Mr. Cummins. And I can remember thinking, it might not be
very smart to put that into an e-mail, but that I was very busy
and that I really didn't have time to make five phone calls,
and I wanted five people to be aware that that conversation had
taken place. So I sent the e-mail.
Senator Specter. What I'm getting at, Mr. Cummins, is you
have given your reactions and your impressions as to what Mr.
Elston was trying to do. But I'd like to get as precise as we
can on exactly what he said.
Mr. Cummins. Senator, I'm afraid I'm not going to be able
to help you with exact quotes, but I can tell you that it was--
he made an observation or a comment. As I said before, I would
not be a very good witness in a criminal prosecution because I
would tell the jury I don't know what it was. You can
characterize it however you want. I don't think, given the
timing and everything, that he intended to obstruct justice. I
think he intended to observe--
Senator Specter. That was my next question.
Mr. Cummins. Well, it was a different time, you know. That
was way back on February 20th.
Senator Specter. What he said to you did not constitute
obstruction of justice?
Mr. Cummins. I think it was a lot--no, sir. I don't think
it--I wouldn't have construed it to be--to him trying to commit
a crime. I thought it was a lot more about the publicity than
it was potential testimony.
The testimony part of our discussion, as I recall, kind of
came in at the end when I was trying to assure him that the
people here, and others, were not trying to stir up a
controversy, we were trying to remain loyal to the
administration that made us U.S. Attorneys, and that we didn't
want to be here, and we resented the fact that this situation
had been created to put us here, that potentially put us here.
And I was trying to explain--you know, and as one example, I
told him that we had turned down opportunities to testify, and
he did react to that.
But most of our conversation was just that obviously they
had read an article in the Washington Post that had given one
or more people in the Department some chagrin, and I think the
message was, you know, we really don't want to keep reading
articles like this if you all expect us to stay however
restrained they felt like they were being at the time.
Senator Specter. OK. You don't think it constituted
obstruction of justice. And both you and I know what
obstruction of justice is. Right?
Mr. Cummins. Yes, Senator.
Senator Specter. OK.
Mr. Cummins. I think that would be a tough conviction.
Senator Specter. OK.
The next question is, do you think that he was trying to
stop you from testifying?
Mr. Cummins. No. I think the call was a lot more directed,
at the time, of just publicity, that one or more of us had
responded to inquiries from the media and, in my case, had been
quoted.
I think that they were feeling like we were trying to stir
a controversy, and if you took him at his word that they were
feeling like they were being more restrained than they could
be, and they were doing it on our behalf to protect us, so if
we wanted them to continue to maintain that posture, that we
needed to understand that we shouldn't be stirring the pot.
Senator Specter. OK. It wasn't obstruction of justice. They
weren't trying to stop you from testifying. Did you sense that
he was trying to stop you from talking further to the
newspapers?
Mr. Cummins. I think that it was fair to say that he was
suggesting--I don't think he was telling me to do anything. I
think he was suggesting that it was an ``if, then.'' If people
keep talking to the newspapers, then it is likely that more
information will need to be made public to defend the
Department's action.
Senator Specter. OK. So that's in the context of him, in
effect, saying to you, if there's more information coming from
the U.S. Attorneys who were asked to resign, then the
Department of Justice will have to respond to whatever is said
and to say why they were asked to resign. Is that the sum and
substance of it?
Mr. Cummins. I think that's a fair--fair summary, Senator.
And like I said, some people--I know some people would want to
interpret that as a threat, but it could also be, hey, here's
some friendly advice. You know, I've seen these things before,
and if you all keep pushing this, it's likely that somebody's
going to feel like they have to step up the defense and it may
come back to hurt you.
Senator Specter. OK. If it's friendly advice, then you
wanted to pass it on to other people who would have the benefit
of your sense that if there was more talk to the newspapers
there'd be more responses from the Department of Justice, and
the essence, as you put it, ``friendly advice'' would be that
if people stopped talking, there won't be any responses to the
talk.
Mr. Cummins. I'm not sure. I don't want to ask you to
repeat that, but can I try and--
Senator Specter. I'd be glad to.
Mr. Cummins. Can I take a crack at it? I think that my--you
know, I had some trepidation about sharing the conversation and
all because I felt like it was a personal conversation between
Mike Elston said and myself.
But I can remember sitting at my desk thinking, if I were
John McKay, David Iglesias, or Carol Lam and tomorrow the
Washington Post or the Wall Street Journal or the New York
Times called me, I would want to know that somebody in the
Department had opined that things might get more embarrassing
for me if I continued to talking to the press.
Senator Specter. OK. Senator Schumer wants to conclude
this, so I'm going to let it go at friendly advice and move on
to another very brief subject matter.
Mr. Cummins. ``Friendly advice'' would very likely be one
fair characterization. I've attempted to not characterize the
call. I just tried to pass the substance on to my colleagues.
Senator Specter. Well, if you characterize it as friendly
advice, I'm going to drop this particular questioning.
Mr. Cummins. I will concede that that's one very possible
characterization of the call.
Senator Specter. When I was chairman, Senator Schumer once
went on for 30 minutes in a 5-minute round.
Senator Schumer. I would just say that the witnesses, then,
did not have to be somewhere else at 2. That's all.
Senator Specter. OK.
Senator Schumer. That's the only reason. I'm happy to keep
going, it's just, they have to be at the House at 2 under
subpoena.
Senator Specter. I'll let you go shortly.
Senator Schumer. OK.
Senator Specter. On the Washington Post story dated
February 4th, there is a reference here to Presidential advisor
Karl Rove, whose former aide was the person to replace you. And
the speculation was--I'm going to lead you a little here to
make it shorter.
Mr. Cummins. I appreciate that, Senator.
Senator Specter. But you don't have to agree with anything
that's leading. To have his former aide become the U.S.
Attorney to groom him for possible political office. Is that
the long and short of it?
Mr. Cummins. I don't remember the article and I have no
idea what the plan was for my successor. I'm not privy to that.
Senator Specter. Were you aware of any speculation that
Karl Rove's former aide was replacing you to groom him for
public office?
Mr. Cummins. Senator, I would have no way of knowing why
those decisions were made.
Senator Specter. Do you think it was inappropriate for Karl
Rove's former associate to replace you as U.S. Attorney?
Mr. Cummins. No. 1, I don't know that my opinion on that is
really relevant. I served at the pleasure of the President. Who
they wanted to replace me with was entirely within their--their
discretion. But I don't know of any reason, objectively, that
Tim Griffin isn't qualified to be U.S. Attorney.
Senator Specter. OK. His qualifications have to be
determined by somebody else, but the final statement here,
``Cummins said, `The political aspect of it shouldn't really be
a shock to anybody.''' What did you mean by ``the political
aspect''?
Mr. Cummins. Well, I'm afraid I don't remember that
article. There's been a lot of them. But I think that I was
probably referring to the fact that--the fact that Tim Griffin
has a political background should not just be an earth-
shattering news flash.
I had a very political background. I'd run for Congress.
I'd been involved in a lot of political--I think David and John
had, and any number of our colleagues in the U.S. Attorney
community.
The only important thing in this business is, you know even
though you get the job politically, you must leave politics at
the door while you do the job. If you don't know that, you are
not going to be successful.
But the fact that somebody has some politics in their
background, to me, shouldn't disqualify them to be a U.S.
Attorney, because that would disqualify a whole lot of us.
Senator Specter. OK. This is the final question. ``Cummins
said, `The political aspect of it shouldn't really be a shock
to anybody,' noting his own status as an active Republican
lawyer who served as one of Arkansas's electors committed to
Bush in 2000. He said, `Every U.S. Attorney knows they serve at
the pleasure of the President.' '' Does that sum it up pretty
well?
Mr. Cummins. Whoever said that was very, very insightful.
[Laughter.]
Senator Specter. Excuse me? I didn't hear you.
Mr. Cummins. Yes, sir. I agree with that statement.
Senator Specter. It pretty well sums it up. You agree with
it, because it's your statement.
Mr. Cummins. Yes. I agree with it because I believe it to
be true. Every one of us serves at the pleasure of the
President.
Senator Specter. Mr. Cummins, I thank you. And I thank you,
Mr. McKay, Mr. Iglesias, and Ms. Lam. This is not an easy thing
for you to do, to come forward as you have and testify. The
three of us are lawyers here, a couple of former prosecutors
and we understand the situation. We thank you for your
contribution today.
Senator Schumer. Well, thank you. And thank you, Senator
Specter.
I'm just going to make three quick points, because he is,
as you can see, a very good prosecutor.
Senator Specter. Not much of a Senator.
Senator Schumer. Well, you're good at that, too.
No. 1, I just want the record to note or just underscore
Mr. Cummins said friendly conversation was one interpretation
of the memo.
Second, both Mr. McKay and Mr. Iglesias, who are sort of
the targets of the memo, have different interpretations of that
memo.
Three, the memo speaks for itself. The word ``threat'' is
used several times in it. We're not going to draw any legal
conclusions here today, that's not our purpose, but there are
some issues here. I just, in conclusion, want to thank all the
witnesses. I think you've proven the case about what fine
prosecutors you are and what fine Americans you are, and we
thank you for your service.
The administration, in response to your comments, used the
word ``grandstanding'', which frankly I resent. I'm sure you
do, too, but you don't have to state so. You were coming to
this hearing. You avoided coming, as Mr. Cummins talked about.
You're coming to this hearing because, A) you've been
subpoenaed and the House side, and you would have been
subpoenaed and had to come back on the Senate side, and just
agreed, for the convenience of doing it all together, to be
here. But the subpoenas are on the document. And the word
``grandstanding'' is entirely inappropriate.
I would say this. I would just say to the administration
that this is not going to go away by intimidating or name-
calling. There are a lot of serious allegations here. Senator
Specter and Senator Whitehouse talked about obstruction, and
there's different views of that, both on this Committee and on
the panel.
But the one thing I can assure the public is we're going to
get to the bottom of this, because the integrity of the U.S.
Attorney's Office is so important to you, to us, and to the
country.
The hearing is concluded.
[Whereupon, at 1:13 p.m. the hearing was adjourned.]
[Submissions for the record follow.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
PRESERVING PROSECUTORIAL INDEPENDENCE: IS THE DEPARTMENT OF JUSTICE
POLITICIZING THE HIRING AND FIRING OF U.S. ATTORNEYS?--PART III
----------
THURSDAY, MARCH 29, 2007
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, Pursuant to notice, at 10:07 a.m., in
room SH-216, Hart Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Kennedy, Kohl, Feinstein,
Feingold, Schumer, Durbin, Cardin, Whitehouse, Specter, Hatch,
Grassley, Kyl, Sessions, Graham, and Cornyn.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Good morning. I would note we are starting
just a couple moments late here. There is a series of roll call
votes on the floor, and what I am going to do is try to start
as quickly as possible with statements by myself and the
Ranking Member.
If we have further votes this morning, I am going to try to
do it in a way that we go back and forth on the votes and keep
the hearing going. This is too important a hearing. I know
Senators have a number of other things they are doing, but we
will go forward.
Today the Committee proceeds with another hearing into the
mass replacement of U.S. Attorneys, and this morning we will
hear testimony from D. Kyle Sampson, the former Chief of Staff
to Attorney General Gonzales. He is represented by another
attorney who served in the White House Counsel's Office for the
White House, Bradford Berenson. Mr. Sampson could have been
subpoenaed, but we thank him for appearing voluntarily and
testifying.
I hope this hearing will provide us with an opportunity to
learn additional facts and help us get beyond the shifting
stories to the truth. Our goal is to get to the bottom of what
happened, but also why it happened, and who was involved in
devising and implementing this plan to replace so many United
States Attorneys around the country.
At his press conference 2 weeks ago, and actually again
this week in an interview, Attorney General Gonzales seemed to
heap much of the responsibility for this matter on Mr. Sampson.
The Attorney General admits that mistakes were made, but he
seems, according to him, to say, however, those mistakes were
mostly by Mr. Sampson.
He was one of the people in charge of assembling the list
of U.S. Attorneys to be fired. The Attorney General indicated
he was also one of the people who concealed information from
others at the Department of Justice so that there was, in the
words of the Attorney General, ``consequently, information
shared with the Congress that was incomplete.''
This hearing gives Mr. Sampson a chance to answer these
charges by the Attorney General and also to present the facts
as he knows them. We are going to ask only that Mr. Sampson
share with us the truth and the whole truth with regard to
these matters.
I want the American people to have a Justice Department and
United States Attorneys' Offices that enforce the law without
regard to political influence and partisanship.
I want that today, but I want to set the standard so that
whoever is President 2 years from now, whether it is a
Democratic or Republican administration, we have an independent
prosecutor system that will prosecute without fear or favor.
We also know that one of the most important things a
prosecutor can do is to decide not only when to bring a charge,
but when not to bring a change. And if the people feel that
there is somehow political influence on those decisions, then
we all suffer.
I want the American people to have confidence in Federal
law enforcement. I want Federal law enforcement officers to
have the independence they need to be effective and to
consistently merit the trust of the American people. And,
regrettably, what we have heard from the administration has
been a series of shifting explanations and excuses and lack of
accountability or even acknowledgment of the seriousness of
this matter.
This investigation stems from this Committee's
responsibilities to the American people. The Judiciary
Committee has the authority to conduct oversight and
investigations related to the Department of Justice and the
U.S. Attorneys' Offices.
We have the authority to examine whether inaccurate or
incomplete testimony was provided to this Committee, to
consider legislation within our jurisdiction, and to protect
our role in evaluating nominations pursuant to the Senate's
constitutional responsibility to provide advice and consent.
And as one who has been in the Senate for 32 years, I take
the right and the duty of advice and consent very, very
seriously. And I must admit that when anybody tries a back-door
way to get around the Senate's constitutional duty and
obligation of advice and consent, it does not sit well.
Indeed, it was in light of this jurisdiction--the
confirmation power vested in the Senate, and the jurisdiction
of this Committee over the review of U.S. Attorney
nominations--that our Ranking Member observed early on that we
have primary responsibility to investigate this matter.
The answers to our questions at the January 18th hearing
with the Attorney General and the February 6th hearing with the
Deputy Attorney General, as well as a series of statements by
White House spokespeople and other Justice Department officials
in private briefings, have been contradicted by the sworn
testimony of the former United States Attorneys.
They have also been contradicted by the limited e-mails and
other documents we have obtained from the Department of
Justice. Let me emphasize it has been limited. A lot of them
had been erased. The material in them had been removed. And
despite the initial denials of White House involvement, it is
now apparent that White House officials were involved in the
planning of the replacement of U.S. Attorneys and the
subsequent misleading explanations from Justice Department
officials.
U.S. Attorneys serve at the pleasure of this President, but
justice does not serve at the pleasure of the President or any
President.
Our law enforcement and justice system is the envy of the
world. It is one of our country's greatest strengths. It is
built on a foundation of checks and balances and the people's
faith in the rule of law without fear or favor. That foundation
can be easily eroded. We need to be vigilant in protecting it.
The dismissed U.S. attorneys have testified under oath and
said in public that they believe political influence was
applied. Incidentally, these U.S. Attorneys were all appointed
in a Republican administration, and they have given chapter and
verse and specific examples.
If they are right--and that is why we are having these
hearings, to determine if they are right, that mixing of
partisan political goals into Federal law enforcement, is
highly improper because it corrodes the public's trust in our
system of justice, it is wrong, and that is what we are seeking
to determine through our investigation of the facts. We need a
thorough and fair investigation of what happened and why and
who was involved.
Normally I would go to the Ranking Member at this point. I
think he is probably still held up on the floor. Because of the
importance of this, we wanted to start, and I will yield to the
Chairman of the appropriate Subcommittee. I will then yield to
Senator Specter. Should Senator Hatch wish to say anything, we
will yield to him.
Senator Schumer?
STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE
STATE OF NEW YORK
Senator Schumer. Well, thank you, Mr. Chairman. I want to
thank you for the opportunity to speak and, more importantly,
for your vital leadership on this critically important issue.
I also want to thank Senators Feinstein, Pryor, and
Lincoln, who raised the alarm about what went on in their
States. And I want to thank Mr. Sampson for coming here today
voluntarily to shed some light on these events.
I just want to take a couple of minutes to note, first,
what we have uncovered so far in this investigation; second,
what we can expect to accomplish today; and, third, where we
expect to go from here.
First, let me comment on where we have been and how far we
have come. It was only 7 weeks ago that I chaired the first
hearing on this issue. Just 7 weeks ago, the Department of
Justice and most of my friends across the aisle were insisting
we needed to keep a secretly passed provision in the PATRIOT
Act that threatened to take the Senate out of the confirmation
process for U.S. Attorneys.
Since then, the Senate has voted 94-2 to return a vital
check and balance to the U.S. Attorney appointment process, and
this week the House voted overwhelmingly to do the same.
Just 7 weeks ago, the Department of Justice was insisting
we were making a big deal out of nothing. Since then, the
Attorney General's Chief of Staff has resigned; the official
who made the fateful calls on December 7th has resigned; and
the Justice Department's liaison to the White House has taken
an indefinite leave of absence and asserted her Fifth Amendment
right against self-incrimination.
In the last 7 weeks, we have learned that Attorney General
Gonzales was personally involved in the firing plan after being
told that he was not. We have learned that the White House was
involved after being told that it was not. We have learned that
Karl Rove was involved after being told that he was not. And we
have learned that political considerations were very important
after being told that they were not.
The list of contradictions, contortions, and retractions
grows longer every day. Maybe no one has anything to hide and
everyone acted honorably, but it is sure hard to come to that
conclusion based on the events of the past 7 weeks. I dare say
that given the unbroken stream of mishaps, missteps, and
misstatements, the burden has shifted. It is now, arguably, up
to the Department of Justice to show that it behaved well, not
for us to show that it behaved badly.
All of these developments raise serious and troubling
questions, which brings me to my second point: What can we
expect today?
Many people in the Justice Department are pointing the
finger at Kyle Sampson, but today we hear Mr. Sampson's side of
the story. For that reason, this is a very important hearing. I
hope and trust we will learn more of the facts that have so far
eluded us. Kyle Sampson was at the epicenter of all of this and
should know those facts better than anyone else.
It is the logical next step in our investigation to have
him here today. It is not the beginning, and it is certainly
not the end. It is a very important step, but we may not even
realize the importance of it until we hear from other witnesses
and other facts come out.
I appreciate, again, Mr. Sampson's willingness to stay here
for as long as we have questions, and I intend to take him up
on that offer and pursue some lengthy factual questioning when
I have the opportunity to do so. So the hearing may last a
while.
The purpose of today's hearing is not to find a smoking
gun. The purpose is to build a factual base and to continue to
figure out what went on. The purpose is not ``gotcha.'' The
purpose is, as they said in ``Dragnet,'' ``Just the facts,
ma'am.''
I hope we learn more about the involvement of the Attorney
General in all this. Based on the facts we already know, his
situation is grave. Whether he was intimately involved in this
debacle or just presided over a Department that allowed it to
happen and did not know a thing, that is a pretty severe
indictment.
Finally, whatever happens at this hearing and, for that
matter, whatever happens to Attorney General Gonzales, we have
a duty to continue to ask questions and investigate until we
are satisfied that all of the facts have been found. If we do
anything less, we are abdicating our responsibility to the
citizens who elected us and who wanted to trust once again that
the Department of Justice enforces the law equally and without
fear or favor.
[Pause.]
Senator Schumer. Ladies and gentlemen, we are waiting for
other Senators to return. There is one final vote, and then we
will not be interrupted the rest of the day, thanks to Senator
Reid and the way he scheduled this. So we are going to take a
brief recess.
[Recess 10:22 a.m. to 10:34 a.m.]
Chairman Leahy. Only because I would like to see the
witness--I am happy to cooperate with the photographers, but I
kind of like to see who I am talking with.
I am not sure what is happening on the floor. We are having
a lot of votes that we were not supposed to have. I would hope
that that is simply because people are exercising their
constitutional rights and not because they are all coming from
the other side, whether these votes are from those who wish we
were not going to have a hearing.
What I am going to do is I am going to swear in Mr.
Sampson, and we can begin with his statement. When Senator
Specter gets here, of course, he will have a chance to give his
statement. He will take priority over everybody else.
Mr. Sampson, please stand and raise your right hand. Do you
solemnly swear that the testimony you are about to give in this
matter shall be the truth, the whole truth, and nothing but the
truth, so help you God?
Mr. Sampson. I do.
Chairman Leahy. Thank you.
As I said earlier, Mr. Sampson, I appreciate you and your
attorney cooperating to have you here, and I would note again
you appeared without us having to issue the subpoena, which I
had signed.
Please go ahead.
STATEMENT OF D. KYLE SAMPSON, FORMER CHIEF OF STAFF TO THE
ATTORNEY GENERAL OF THE UNITED STATES, WASHINGTON, D.C.
Mr. Sampson. Thank you, Mr. Chairman.
As you know, I have come here voluntarily to answer your
questions. I have been a public servant for the past 8 years.
During the past several years, I have served Attorney General
Gonzales in a staff position, culminating in my service to him
as his Chief of Staff.
In that role, I was responsible for organizing and managing
the process by which certain U.S. Attorneys were asked to
resign. From that vantage point, I believe I was well
positioned to observe and understand what happened in this
matter.
I can't pretend to know or remember every fact that may be
of relevance, but I am pleased to share with the Committee
today those that I do know and those that I do remember.
After the 2004 election, the White House inquired about the
prospect of replacing all 93 U.S. Attorneys with new
appointees. I believed, as did others, that less sweeping
changes were more appropriate. The Department of Justice then
began to look at replacing a limited number of U.S. Attorneys
in districts where, for a variety of reasons, the Department
thought change would be beneficial.
Reasonable and honest people can differ--and, in fact, did
at various stages of the process--on whether particular
individuals should be asked to resign. But the decision to ask
them to do so was the result of an internal process that
aggregated the considered, collective judgment of a number of
senior Justice Department officials.
I would be the first to concede that this process was not
scientific, nor was it extensively documented. That is the
nature of Presidential personnel decisions. But neither was the
process random or arbitrary. Instead, it was a consensus-based
process based on input from Justice Department officials who
were in the best position to develop informed opinions about
U.S. Attorney performance.
When I speak about U.S. Attorney performance, it is
critical to understand that performance for a Senate-confirmed
Presidential appointee is a very different thing than
performance for a civil servant or a private sector employee.
Presidential appointees are judged not only on their
professional skills, but also their management abilities, their
relationships with law enforcement and other governmental
leaders, and their support for the priorities of the President
and the Attorney General.
A United States Attorney may be a highly skilled lawyer and
a wonderful person, as I believe all of the individuals who
were asked to resign are. But if he or she is judged to be
lacking in any of these respects, then he or she may be
considered for replacement.
The distinction between ``political'' and ``performance-
related'' reasons for removing a U.S. Attorney is, in my view,
largely artificial. A U.S. Attorney who is unsuccessful from a
political perspective, either because he or she has alienated
the leadership of the Department in Washington or cannot work
constructively with law enforcement or other governmental
constituencies in the district, is unsuccessful.
With these standards for evaluating U.S. Attorneys in mind,
I coordinated the process of identifying U.S. attorneys that
might be considered for replacement. I received input from a
number of officials at the Department of Justice who were in a
position to form considered judgments about the U.S. Attorneys,
and these included not only senior political appointees, such
as the Deputy Attorney General, but also senior career lawyers
such as David Margolis, a man who has served Justice for more
than 40 years under Presidents of both parties and who probably
knows more about United States Attorneys than any person alive.
I developed and maintained a list that reflected the
aggregation of views of these Department officials over a
period of almost 2 years. I provided that information to the
White House when requested and reviewed it with and circulated
it to others at the Department of Justice for comment. By and
large, the process operated by consensus. When any official I
consulted felt that an individual name should be removed from
the list, it generally was.
Although consideration of possible changes had begun in
early 2005, the process of actually finalizing a list of U.S.
Attorneys who might be asked to resign and acting on that list
did not begin until last fall. In the end, eight total U.S.
Attorneys were selected for replacement: Bud Cummins in mid-
2006 and the other seven in a group in early December of 2006.
With the exception of Bud Cummins, none of the U.S.
Attorneys was asked to resign in favor of a particular
individual who had already been identified to take the vacant
spot. Nor, to my knowledge, was any U.S. Attorney asked to
resign for an improper reason.
U.S. Attorneys serve at the pleasure of the President and
may be asked to resign for almost any reason, with no public or
private explanation. The limited category of improper reasons
includes an effort to interfere with or influence the
investigation or prosecution of a particular case for political
or partisan advantage.
To my knowledge, nothing of the sort occurred here.
Instead, based on everything I have seen and heard, I believe
that each replaced U.S. Attorney was selected for legitimate
reasons, falling well within the President's broad discretion
and relating to his or her performance in office, at least as
performance is properly understood in the context of Senate-
confirmed political appointees.
Nonetheless, when Members of Congress began to raise
questions about these removals, I believe the Department's
response was badly mishandled. It was mishandled through an
unfortunate combination of poor judgments, poor word choices,
and poor communication in preparation for the Department's
testimony before Congress.
For my part in allowing this to happen, I want to apologize
to my former DOJ colleagues, especially the U.S. Attorneys who
were asked to resign. What started as a good-faith attempt to
carry out the Department's management responsibilities and
exercise the President's appointment authority has
unfortunately resulted in confusion, misunderstanding, and
embarrassment.
This should not have happened. The U.S. Attorneys who were
replaced are good people. Each served our country honorably,
and I was privileged to serve at the Justice Department with
them.
As the Attorney General's Chief of Staff, I could have and
should have helped to prevent this. In failing to do so, I let
the Attorney General and the Department down. For that reason,
I offered the Attorney General my resignation. I was not asked
to resign. I simply felt honor bound to accept my share of
blame for this problem and to hold myself accountable.
Contrary to some suggestions I have seen in the press, I
was not motivated to resign by any belief on my part that I
withheld information from Department witnesses or intentionally
misled either those witnesses or the Congress.
The mistakes I made here were made honestly and in good
faith. I failed to organize a more effective response to
questions about the replacement process, but I never sought to
conceal or withhold any material facts about this matter from
anyone.
I always carried out my responsibilities in an open and
collaborative manner. Others in the Department knew what I knew
about the origins and timing of this enterprise.
None of us spoke up on those subjects during the process of
preparing Mr. McNulty and Mr. Moschella to testify--not because
there was some effort to hide this history, but because the
focus of our preparation sessions was on other subjects--
principally why each of the U.S. Attorneys had been replaced,
whether there had been improper case-related motivations for
those replacements, and whether the administration planned to
use the Attorney General's interim appointment authority to
evade the Senate confirmation process.
As I see it, the truth of this affair is this: The
decisions to seek the resignations of a handful of U.S.
attorneys were properly made but poorly explained. This is a
benign rather than sinister story, and I know that some may be
disposed not to accept it. But it is the truth as I observed it
and experienced it.
And, Mr. Chairman, if I may just add, 8 years ago I moved
my wife and children here to Washington because I was
interested in public service, and I came to work here for this
Committee first, for then-Chairman Hatch, and it was an honor
for me to do that. And really through serendipity, I have had
opportunities for other public service in the Government. And I
believe in public service, and in all of my work in public
service, I have made every effort to operate openly and
forthrightly and with integrity.
Chairman Leahy. Mr. Sampson, I do not mean to cut you off,
and we have given you extra time, as you know. We have now what
I believe is a final vote. I am going to turn the gavel over to
Senator Kohl while I go and vote. I will come back. If you wish
to add the part that was cutoff, certainly I will give you the
time.
Thank you.
Mr. Sampson. Thank you, Mr. Chairman.
Chairman Leahy. Mr. Sampson, finish your statement.
Mr. Sampson. Thank you, Mr. Chairman. All I had to say, all
I wanted to conclude in saying is that I have come up here to
testify voluntarily today because I believe in public service
and because I believe in the goodness of our political process.
I appreciated Senator Schumer saying this was not a game of
``gotcha,'' and I came here today because this episode has been
personally devastating to me and my family. And it is my hope
that I can come up here today, share with you the information
that this Committee and that the Congress wants and, frankly,
put this behind me and my family.
And with that, I am happy to answer any questions any
Senators may have.
Senator Kohl. [Presiding.] We will withhold further
proceedings until the Chairman returns.
Mr. Sampson. Thank you.
[Recess 10:45 a.m. to 10:57 a.m.]
Chairman Leahy. I should let everybody know what we are
going to do. Mr. Sampson is on his way back in, and I really
apologize for the way this is going. Unfortunately, you never
know what the Senate schedule is going to be.
I want people watching us to understand that we have had a
series of roll call votes, and a decision was made by anybody
who might have been holding up the Senate that they will not.
We have had the final vote, and now Senators can stay here.
As I was saying as I was leaving, Mr. Sampson was making a
personal comment, which we made sure got on the record, and I
am sorry I had to cut out for that. I made that vote by about
30 seconds.
I am going to yield first to Senator Specter for his
opening statement. We have already had the opening statement
from Mr. Sampson. I am going to yield for the opening statement
to Senator Specter. I will ask questions, and then Senator
Specter will ask questions.
Senator Specter. Thank you, Mr. Chairman. I--
Senator Sessions. Mr. Chairman, are you forgetting me?
Chairman Leahy. Also, I had told Senator Sessions
yesterday, since he is the Ranking of the appropriate
Subcommittee, that following Senator Specter's statement--he
was not here when we made the opening statements earlier--I
will yield to Senator Sessions.
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Senator Specter. I am sorry to have missed your opening
statement, Mr. Chairman, and the opening statement by Mr.
Sampson. But as has already been said, we have been in the
midst of roll call votes with the final passage vote in process
now on providing the $100 billion plus for the troops in Iraq,
and I was on the floor and was deliberating as to how to vote.
So as soon as I could make up my mind, I came over for this
subject.
It is my hope that this hearing today will provide some
coherence, accuracy, and veracity as to what has gone on here.
We have very important questions that we have to find the
answers to. We have to make a determination as to why these
U.S. Attorneys were asked to resign.
It is admitted that the President has the authority to
replace U.S. Attorneys for no reason, but I think there is a
consensus that the President does not have the right to ask for
resignations for a bad reason, that is, whether U.S. Attorney
Carol Lam in San Diego was asked to resign because she was hot
on the trail of confederates of Duke Cunningham. We do not know
whether she was or not. These hearings are designed to find
that out.
We do not know whether or not the U.S. Attorney in New
Mexico Iglesias was asked to resign because he refused to bring
a fraud prosecution where there was no basis for it.
We have to make that determination. We have to find out
whether there was a calculated effort by the Department of
Justice to use this provision in the PATRIOT Act to avoid
Senate confirmation and Senate scrutiny on who the United
States Attorneys were.
So there are some really important questions to be
determined, and right now it is generally acknowledged that the
Department of Justice is in a state of disrepair, perhaps it's
even dysfunctional, because of what has happened, with morale
low, with U.S. Attorneys across the country who do not know
when another shoe may drop, whether they may be asked to resign
for a bad reason if they are not exercising their discretion.
And it is vital that U.S. Attorneys be able to exercise their
discretion in good faith and make prosecutions, something I
have had some experience with myself.
And then we need to know what was the role of the Attorney
General. He has said that he was not involved in discussions,
and that statement is apparently contradicted by e-mails. But I
am not prepared to make a judgment on whether the Attorney
General should stay or go based upon what I read in the
newspapers.
I want to see him eyeball-to-eyeball at that witness stand
and have a chance to ask him questions. And there are serious
questions beyond this U.S. Attorneys issue. The National
Security Letters, which this Committee took up earlier this
week, have really great importance on tools for law
enforcement. We should know whether they are being exercised
properly with regard for civil liberties. And I think the
Attorney General has serious questions to answer on that.
And then there is the role that Mr. Rove played, and I
think we ought to hear from him--candidly, sooner rather than
later. I think we ought to try to get to the bottom of all
these factual situations so that we can make a determination as
to who ought to stay, who ought to go, and how the Department
of Justice ought to perform on its very vital role in the
national interest.
I have discussed the issue of the participation by Mr. Karl
Rove, Ms. Harriet Miers, Mr. Bill Kelley, and others in the
White House. I have discussed that with Mr. Fielding, and I
have agreed with some of the President's conditions and
disagreed with others. I think that the President is wrong in
insisting that there not be a transcript. I do not see how we
can function without a transcript. If we do, we have a hearing,
and Senators walk out and in perfectly good faith give
different versions. So it has to be written down. That is the
essence of our judicial system.
I am prepared to agree with the President that these White
House officials ought not to appear before both bodies with so
many members present. We can have a joint proceeding with a
limited number of members. At least we can in my opinion.
And while the oath is always salutary, I do not think it is
indispensable because the penalty for a false official
statement is 5 years, the same as for perjury. And I would like
to see the hearings in public, I think the public has a right
to know, but I think that is negotiable as well.
But we ought not to be at polar opposites and at swords'
points between the White House and the Congress. We have to
respect the Executive privilege. The President is right when he
says he needs to have unfettered information and his deputies
telling him what their advice is without the fear of being
hauled before a Committee.
But we can balance that out, and there are some 73
appearances by similar executive officials since 1944. And
Condoleezza Rice as National Security Counselor appeared under
oath before the 9/11 Commission.
So let's work it out. Let's try to come to terms here to
get the information this Committee needs so we can make a
judgment.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Senator Sessions?
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Thank you, Mr. Chairman. I spent 15 years
in the Department of Justice, 12 as United States Attorney, and
those were great, great years, and there is nothing I enjoyed
more or was more proud of than serving as United States
Attorney. The Department of Justice is one of the great
Departments in Washington.
I think sometimes Presidents have not understood just how
difficult the job of Attorney General is. If you just look back
at the history of the people that have served there, many were
quite capable but had great difficulties because they had, I
think, in some ways less experience in that job than they
needed to take it over.
Let me just say this, Mr. Sampson: I think from reading
some of the e-mails--and I certainly have not read them all--
you understood, I think pretty well, the difficulties of
removing United States Attorneys. They are removable. They do
serve at the pleasure of the President. Everyone knows that.
In fact, in 1926, the Supreme Court found unconstitutional
a postmaster statute that the Congress had passed to declare
that Congress not only would advise and consent in the
appointment of postmasters, but would advise and consent in
their termination. And they said that denied the President the
power to run the executive branch and declared that part of it
unconstitutional.
So that we know is a legitimate thing, that the President
should supervise the United States Attorneys. They are paid by
the taxpayers. If they do not prosecute immigration cases in a
certain district, who else will there be to prosecute those
cases?
No one but that United States Attorney has the venue or the
jurisdiction to prosecute the cases. So the President must have
the ability to control that and make sure that the laws are
faithfully executed in our country.
I noticed that in one of your e-mails you talk about you
oppose the wholesale removal of all of the U.S. Attorneys,
correctly noting it would cause significant disruption in the
Department of Justice. You noted that a suitable replacement
must be found in consultation with the home-State Senators and
that the Senate must confirm them. Later on you talk about the
appointment under the PATRIOT Act that might have obviated that
confirmation requirement.
You noted that if a decision is made to remove and replace
a limited number of United States Attorneys, then the following
might be considered for removal and replacement, and you name
four.
Later you suggested perhaps three and said that if you
would like to see more change in effect, let me know. So I
think you were sensitive to those problems that have occurred,
and perhaps had you been listened to more carefully, we would
not be in this fix.
You noted that you are concerned--and I am quoting your e-
mail. ``I am concerned that to execute this plan properly we
must all be on the same page, be steeled to withstand any
political upheaval that might result. If we start caving to
complaining United States Attorneys or Senators, we shouldn't
do it. It'll not be worth the trouble.''
I think that might have been good advice for some people to
listen to.
There are some inconsistencies in comments that have been
made, Mr. Sampson. I think you are in the middle of a lot of
that, and maybe you can shed some light on it. I am inclined to
believe that I have never met finer people than those who serve
in the Department of Justice, but the demands are great. The
demand for integrity is important.
So we will give you a fair shake. I think the Attorney
General deserves a fair shake. But there will be hearings, and
we will get facts, and in the end I think the truth will come
out.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much, Senator Sessions.
Mr. Sampson, let me just get a couple preliminary things
out of the way. Did you bring any documents with you?
Mr. Sampson. I didn't.
Chairman Leahy. Do you have any documents related to this
investigation under your control or custody?
Mr. Sampson. I reviewed the documents that the Department
of Justice made available to the Committee, and perhaps the
folks who are here with me today have copies.
Chairman Leahy. No, but do you have anything in your
possession, control, or custody that has not been turned over
to us?
Mr. Sampson. No, sir.
Chairman Leahy. Now, since the 2004 election, did you speak
with the President about replacing U.S. attorneys?
Mr. Sampson. I don't ever remember speaking to the
President after the 2004 election.
Chairman Leahy. So your answer would be no.
Mr. Sampson. No. I haven't spoken with the President since
I worked in the White House.
Chairman Leahy. Did you attend any meeting with the
President since the 2004 election where the replacement of U.S.
Attorneys was discussed?
Mr. Sampson. I did not.
Chairman Leahy. Are you aware of any Presidential decision
documents since the 2004 election in which President Bush
decided to go ahead with the replacement plans for the U.S.
Attorneys?
Mr. Sampson. I'm not aware of any.
Chairman Leahy. Now, I am going to give you a copy a
document, and I am going to actually go through a number of
documents, and they are all labeled OAG and then a whole series
of zeroes and then a number.
Just to make it easier, I will just refer to them as OAG
and the final number. This is OAG-45. It is a copy of a
December 4, 2006, e-mail exchange between you and Deputy White
House Counsel William Kelley, copied to White House Counsel
Harriet Miers. Is that correct?
Mr. Sampson. Yes, sir.
Chairman Leahy. Now, in Mr. Kelley's e-mail, he states,
``We're a go for the U.S. Attorney plan. White House Leg,
Political, and Communications signed off. They acknowledged we
have to be committed to follow through once the pressure
comes.'' Is that correct?
Mr. Sampson. Yes.
Chairman Leahy. Who headed the White House political
operation at the time?
Mr. Sampson. Sarah Taylor was the Director of the Office of
Political Affairs.
Chairman Leahy. And was Ms. Taylor the overall head of the
political operation?
Mr. Sampson. I understood that Ms. Taylor was the Director
of the Office of Political Affairs and she--that office
reported to Karl Rove who ultimately reported to the President.
Chairman Leahy. And who headed the White House
communications operation at the time?
Mr. Sampson. I don't remember. I'm not sure if it was Dana
Perino or--I don't know, Senator.
Chairman Leahy. Who headed the White House legal operation
at the time?
Mr. Sampson. I think that the e-mail refers to White House
Leg., which is short for Legislative Affairs, and that was
Candi Wolff, I believe.
Chairman Leahy. Now, let me give you a copy of the
documents numbered OAG-40-43. You will notice the first page is
a copy of a November 15, 2006, e-mail you sent to White House
Counsel Harriet Miers; her Deputy, William Kelley; and it is
copied to Deputy Attorney General Paul McNulty. Is that what
you were just handed?
Mr. Sampson. Yes.
Chairman Leahy. The subject of the e-mail is ``USA
Replacement Plan.'' The ``USA'' would refer to U.S. Attorneys.
Is that right?
Mr. Sampson. Yes.
Chairman Leahy. ``Attached is a plan for the removal of a
set of U.S. Attorneys, including Paul Charlton, Carol Lam,
Margaret Chiara, Dan Bogden, John McKay, and David Iglesias.''
Is that correct?
Mr. Sampson. Yes.
Chairman Leahy. Now, in this e-mail dated November 15,
2006, shortly after last fall's elections, you told Ms. Miers
and Mr. Kelley that you had not informed anyone in Karl's shop,
which you considered a ``pre-execution necessity.'' By
``Karl'', are you referring to Karl Rove?
Mr. Sampson. Yes.
Chairman Leahy. Now, in the e-mail you ask Ms. Miers and
Mr. Kelley to circulate the plan to Karl's shop. Is that right?
Is that what you asked?
Mr. Sampson. Yes.
Chairman Leahy. Do you know whether that was done?
Mr. Sampson. I believe that the previous e-mail that you
provided me a copy of, OAG-45, indicates from Mr. Kelley that
White House Leg., Political, and Communications have signed
off, and the reference in the e-mail I drafted that is OAG-40
to ``Karl's shop'' was to the Office of Political Affairs at
the White House.
Chairman Leahy. But do you know whether then it was
circulated to Karl's shop? I mean, your answer is it was. Is
that correct?
Mr. Sampson. I believe it was.
Chairman Leahy. OK. And in the e-mail you write, ``Will
stand by for a green light from you.'' Is that correct?
Mr. Sampson. Yes, sir.
Chairman Leahy. Now, you state in your e-mail that you
``have consulted with the DAG,'' D-A-G. That is the Deputy
Attorney General, Mr. McNulty, correct?
Mr. Sampson. Yes.
Chairman Leahy. Had you by the time of your November 15 e-
mail discussed a replacement plan with the Attorney General?
Mr. Sampson. I believe so.
Chairman Leahy. You believe you had?
Mr. Sampson. Yes.
Chairman Leahy. Let me give you a copy of a document
numbered OAG-14. Now, this document contains Ms. Miers's
response on November 15th to your e-mail that day and your
reply to her. You ask, ``Who will determine whether this
requires the President's attention?'' Is that correct?
Mr. Sampson. Yes.
Chairman Leahy. Did you get an answer to that question?
Mr. Sampson. No, I do not believe so.
Chairman Leahy. Who decided?
Mr. Sampson. I don't know.
Chairman Leahy. Did the President review this plan for the
removal and replacement of U.S. Attorneys?
Mr. Sampson. I personally don't know.
Chairman Leahy. So you don't know either way?
Mr. Sampson. I don't--
Chairman Leahy. You never heard either way?
Mr. Sampson. That's correct. Not that I recall.
Chairman Leahy. And do you know today either way?
Mr. Sampson. I don't know.
Chairman Leahy. Between this November 15 e-mail exchange
and the December 4 e-mail from Mr. Kelley, which informed you
that White House Leg. and Political and Communications had
signed off on the plan, did you have further communications
with the White House regarding the plan to remove and replace
several U.S. Attorneys?
Mr. Sampson. I don't remember specifically. There was a
Thanksgiving holiday in between there, and I just don't
remember.
Chairman Leahy. So you don't know whether you did or not?
Mr. Sampson. I don't remember if I did or not.
Chairman Leahy. Let me give you a copy of a document
numbered OAG-231. That is a December 7, 2006, e-mail exchange
between you and Mr. Kelley of the White House Counsel's Office,
copying Scott Jennings, Special Assistant to the President,
Deputy Director of Political Affairs. Is that correct?
Mr. Sampson. I am sorry, Senator. I was looking at the
document.
Chairman Leahy. Is this a copy of a December 7, 2006, e-
mail exchange between you and Mr. Kelley of the White House
Counsel's Office, copying Scott Jennings, Special Assistant to
the President, Deputy Director of Political Affairs?
Mr. Sampson. Yes.
Chairman Leahy. You received this e-mail from Mr. Kelley on
the day seven of the U.S. Attorneys were told to resign asking
you to talk to Scott Jennings about the particulars of Kevin
Ryan's situation. He was one of the U.S. Attorneys told that
day to resign. Did Mr. Kelley write, ``Karl would like to know
some particulars as he fields these calls''?
Mr. Sampson. Senator, I didn't remember this until looking
at this document right now, but what I remember is that after
Mr. Ryan was called and asked to resign, the White House Office
of Political Affairs had received some calls, that Mr. Ryan had
called in some political chits, as it says there.
Chairman Leahy. My question was: Does it say, ``Karl would
like to know some particulars as he fields these calls''? Is
that in the e-mail?
Mr. Sampson. It is.
Chairman Leahy. And that is Karl Rove?
Mr. Sampson. I assume so.
Chairman Leahy. Did they have many other Karls spelled with
a K?
Mr. Sampson. I'm sorry, Mr. Chairman. I think it must have
been.
Chairman Leahy. OK. And you responded by copying Mr.
Jennings, asking him to call you, and then sent another e-mail
to Kelley yourself, asking Kelley to forward something to Mr.
Jennings. What were you asking Mr. Kelley to forward to Mr.
Rove's Deputy?
Mr. Sampson. I don't remember, Mr. Chairman. It looks like
I replied to both Mr. Kelley and to Mr. Jennings, and then
again forwarded it to Mr. Kelley and asked him to forward it to
Mr. Jennings. I don't remember why.
Chairman Leahy. Well, I wish you did remember. It would be
awfully helpful. My time is up. We are going to come back to
this, and I would hope that you would search your memory as we
go along.
Senator Specter?
Senator Specter. Thank you, Mr. Chairman.
Mr. Sampson, first of all, thank you for coming in. It is
not easy to be in your position and to appear voluntarily. It
is commendable, so thank you for doing that.
In the time I have on the first round, I want to take up
two questions with you. One is: Was any United States Attorney
asked to resign because either that United States Attorney was
pursuing hot leads on corruption which somebody wanted stopped
or whether any U.S. Attorney was asked to resign because the
U.S. Attorney refused to prosecute cases which should not have
been prosecuted? And then I want to get to the question as to
whether Attorney General Gonzales has been candid in his
responses.
Starting off with U.S. Attorney Carol Lam, it has been
reported that on the day that Ms. Lam was the subject of an e-
mail from you raising an issue about asking her to resign, that
she broadened the investigation to include the Chairman of the
House Appropriations Committee and that the day before, she had
initiated search and seizure warrants.
Now, my question is: Was there any connection between those
two events--the issuance of the search and seizure warrants,
the broadening of the investigation to include a Member of the
House, Chairman of the Appropriations Committee--and the e-mail
which you sent saying we ought to be looking to replace Ms.
Lam?
Mr. Sampson. There was never any connection in my mind
between asking Carol Lam to resign and the public corruption
case that her office was working on. I don't remember--
Senator Specter. Is it just a coincidence that you sent
that e-mail saying, ``The real problem we have right now with
Carol Lam that leads me to conclude that we should have someone
ready to be nominated on 11/18, the day her 4-year term
expires''? Now, admittedly, that is sometime in the future. But
if neither of those incidents was connected, what was the
problem with Ms. Lam to ask her to resign?
Mr. Sampson. The real problem at that time was her office's
prosecution of immigration cases. In the month--
Senator Specter. And that is the sole reason she was asked
to resign?
Mr. Sampson. No, sir. But at that time of that e-mail,
that's what was in my mind when I said the real problem with
Carol Lam that leads me to believe that she should be asked to
resign when her 4-year term expires, in my mind--
Senator Specter. Let me move on--
Mr. Sampson.--that was immigration enforcement.
Senator Specter. Let me move on then to the situation with
the U.S. Attorney in New Mexico. Your e-mails show that the
name of David Iglesias was not added until November 7, 2006,
which he had not been on a list of anyone to be asked to
resign, but it was added on that day, which was the day of the
election and after the calls had been placed to Mr. Iglesias.
Was there any consideration at all of asking Mr. Iglesias
to resign because he refused to carry out a prosecution which
you thought should have been carried out?
Mr. Sampson. Not to my knowledge. In mid-October, as this
process was being finalized, I went back and looked at the list
of U.S. Attorneys whose 4-year terms had expired to see if
anyone else should be added to the list, and I did that in
consultation with others at the Department of Justice,
including Mike Elston--who was the Deputy Attorney General's
Chief of Staff--the Deputy Attorney General, and others.
And there were four U.S. Attorneys who were added to the
list sometime there in mid-October and appeared on the list on
November 7th or during that period of time. And they were close
cases. They were U.S. Attorneys who for a variety of reasons--
Senator Specter. Mr. Sampson, I have your answer, and I
need to move on because of limitation of time. Then are you
prepared to swear under oath that no U.S. Attorney was asked to
resign because the U.S. Attorney was pursuing an investigation
which you thought was too hot or was failing to undertake a
prosecution which you thought should have been made?
Mr. Sampson. To my knowledge, that was the case.
Senator Specter. OK. Well, let me turn to the issue as to
the candor or truthfulness of the Attorney General. In his
press conference on March the 13th, Attorney General Gonzales
said that he was not involved in any discussions relating to
the issue.
But the e-mails show that on November 27th there was a
meeting which Attorney General Gonzales attended which took up
the issues and apparently discussions occurred on the U.S.
Attorney appointments.
Was your e-mail correct that Attorney General Gonzales was
present at a meeting on November 27th at which there were
discussions about U.S. Attorneys?
Mr. Sampson. I don't think the Attorney General's statement
that he was not involved in any discussions about U.S. Attorney
removals is accurate, and--
Senator Specter. Is what? Is accurate?
Mr. Sampson. I don't think it's accurate. I think he's
recently clarified it. But I remember discussing with him
asking certain U.S. Attorneys to resign, and I believe that he
was present at the meeting on November 27th.
Senator Specter. So he was involved in discussions,
contrary to the statement he made at his news conference on
March 13th?
Mr. Sampson. I believe so--yes, sir.
Senator Specter. In the limited time I have remaining, I
want to come to one final issue on this round, and that is the
question of whether there was a calculation by the Department
of Justice to use this new provision in the PATRIOT Act to
avoid Senate confirmation or Senate scrutiny on replacement
U.S. Attorneys.
Without going into it now, because I have no time left, and
I want to finish the question, isn't it true, as these e-mails
suggest, that there is a calculation on your part and the part
of others in the Department of Justice to utilize this new
provision to avoid confirmation by the Senate and to avoid
scrutiny by the Senate and to avoid having Senators participate
in the selection of replacement U.S. Attorneys?
Mr. Sampson. Senator, that was a bad idea by staff that was
not adopted by the principals. I did advocate that at different
times, but it was never adopted by Judge Gonzales or by Ms.
Miers or any--
Senator Specter. But it was adopted--
Mr. Sampson.--of the decisionmakers.
Senator Specter. It was your idea, at least your idea,
according to the e-mails.
Mr. Sampson. I recommended that at one point.
Senator Specter. But you are saying others did not adopt
it?
Mr. Sampson. I was the Chief of Staff, and I had made
recommendations of different options that the decisionmakers
might pursue, and I did recommend that at one point. But it was
never adopted by the Attorney General.
Senator Specter. Was it ever rejected by the Attorney
General or Ms. Miers?
Mr. Sampson. It was rejected by the Attorney General. He
thought it was a bad idea, and he was right.
Senator Specter. Do you have an e-mail or any confirmation
of that rejection?
Mr. Sampson. I didn't communicate with the Attorney General
by e-mail, so I don't.
Senator Specter. Well, I will pick this up in the next
round. I think there is a lot more to it from the e-mails which
I will get into in detail.
Chairman Leahy. Thank you, Senator Specter. I am somewhat
boggled because that is exactly the provision of the PATRIOT
Act that has now been repealed by the Congress that was used.
If it is an idea never adopted by anybody, somehow miraculously
it was used at least for eight of these U.S. Attorneys.
Senator Schumer?
Senator Schumer. Thank you, Mr. Chairman.
Again, Mr. Sampson, let me thank you for coming here
voluntarily. I think that is most appreciated.
I want to followup on Senator Specter's discussion about
the Attorney General and his involvement in the dismissal of
these eight U.S. Attorneys and his statements about it. First,
let's go over some of the Attorney General's statements.
As you know, at a press conference on March 13th, the
Attorney General discussed this process of dismissing the U.S.
Attorneys, and he said, ``I never saw documents. We never had a
discussion about where things stood.''
Was that statement accurate?
Mr. Sampson. I don't think it is entirely accurate, what he
said. I don't remember if the Attorney General ever saw
documents. I didn't prepare memos for him on this issue. But we
did discuss it as early as before he became the Attorney
General, when he was the Attorney General Designate, in January
of 2005, I think; and then from time to time as the process was
sort of in a thinking phase through 2005 and 2006; and then I
remember discussing it with him as the process sort of came to
a conclusion in the fall of 2006.
Senator Schumer. So there were repeated discussions?
Mr. Sampson. Yes, and I think the Attorney General
clarified that a couple of days ago.
Senator Schumer. I just want to get it clear. So were there
at least five?
Mr. Sampson. I don't remember specifically, but it would--I
spoke with him every day, so I think at least five.
Senator Schumer. OK. And you asked about the documents--I
asked you about the documents. You said you are not sure he
read a document. He received documents that mentioned this.
Mr. Sampson. I don't know that he did. I don't think the
Attorney General saw every iteration of the list--
Senator Schumer. Let me ask--
Mr. Sampson.--and I'm not sure that he saw the replacement
plan that I drafted. I don't remember if he did or not.
Senator Schumer. The November 27th meeting that Senator
Specter alluded to, he was there, right?
Mr. Sampson. Yes, I think so.
Senator Schumer. OK. And the purpose of that, according to
the e-mails, was to discuss U.S. Attorneys with you and other
senior Justice officials, right?
Mr. Sampson. Yes.
Senator Schumer. Was a document handed out at that meeting?
Was there any paper?
Mr. Sampson. I don't think so. I had circulated the
replacement plan to the Deputy Attorney General and others who
were discussing this matter, and we may have had it at that
meeting, but I don't remember.
Senator Schumer. Was there a discussion at the meeting?
Mr. Sampson. Yes.
Senator Schumer. Did the Attorney General participate in
the discussion?
Mr. Sampson. I think so. I don't remember the meeting
clearly, Senator.
Senator Schumer. But your recollection is he did speak at
the meeting.
Mr. Sampson. Yes.
Senator Schumer. OK. Now, that in itself says a whole lot.
At the same press conference, the Attorney General also
said, ``The charge for the Chief of Staff here was to drive
this process, and the mistake that occurred here was that
information that he had was not shared with individuals within
the Department who were then going to be providing testimony
and information to Congress.''
The Attorney General was referring to you as his Chief of
Staff, correct?
Mr. Sampson. Yes.
Senator Schumer. Was that an accurate statement that he
made?
Mr. Sampson. Senator, I believe that at no time did I ever
intend to mislead the Congress or mislead witnesses that were
coming before the Congress. I think we mishandled the
preparation for Mr. McNulty's testimony--
Senator Schumer. Sir, I am sorry to interrupt you. I just
am trying to get yes or no questions. He said--OK?--that the
mistake that occurred here was that information you had, Kyle
Sampson had, was not shared with individuals within the
Department. Is that true or false?
Mr. Sampson. Senator, I shared--I shared information with
anyone who wanted it. I was very open and collaborative in the
process. In the preparation for Mr. McNulty and Mr. Moschella's
testimony, I--
Senator Schumer. That is what I want to ask. Did you share
information with Mr. McNulty and Mr. Moschella?
Mr. Sampson. I did.
Senator Schumer. So the Attorney General's statement is
wrong. It is false. How can it not be? If you shared
information with Mr. McNulty and Mr. Moschella, and the
Attorney General is saying it was not shared with individuals
in the Department who were providing testimony--to wit,
Moschella and McNulty--his statement is false, correct?
Mr. Sampson. Senator, as I look back on that process, the
problem was that we were focused on other questions, and I
think any information--
Senator Schumer. I understand, but it is just--
Mr. Sampson.--that I didn't provide was--
Senator Schumer. Time is limited.
Mr. Sampson. I'm sorry.
Senator Schumer. The statement is false, correct? The
statement is false. There is no way to believe it is not.
Mr. Sampson. I don't think it is accurate if the statement
implies--
Senator Schumer. OK. We will leave it at that.
Mr. Sampson.--that I intentionally mislead--
Senator Schumer. It is not accurate. I am not asking
intent. I am just asking whether it was false, and you said it
was inaccurate.
Senator Cornyn. Mr. Chairman? Mr. Chairman, I think it is
not fair to the witness to not allow him to answer the
questions and to continually interrupt and to ask whether
something is true or false--
Senator Schumer. OK. Mr. Chairman--
Chairman Leahy. Gentlemen, gentlemen, the Senator from
Texas is going to have a chance to followup if he wants. If he
feels they are not answered, he can follow up.
Senator Cornyn. Mr. Chairman, it is not fair to--
Chairman Leahy. They are not--
Senator Cornyn. This witness is testifying under oath, and
if the penalties of perjury--
Chairman Leahy. And this witness--
Senator Cornyn.--attach to his testimony--
Chairman Leahy. And this witness has said--
Senator Cornyn.--he ought to be able to answer the
questions fully--
Chairman Leahy. And this witness has said a couple dozen
times--
Senator Cornyn.--and not be interrupted.
Chairman Leahy.--that he doesn't remember on things, and we
are trying to find what in heaven's name he does remember. I
will let the Senator from New York continue.
Senator Schumer. Thank you, and I think the questions are
clear-cut, factual, and demand some factual answers, and I will
continue.
Senator Cornyn. And the witness ought to be--
Senator Schumer. Similarly--
Senator Cornyn.--allowed to answer the question fully.
Senator Schumer. Similarly, DOJ spokesman on March 24th,
Ms. Scolinos, said the Attorney General did not participate in
the selection of U.S. Attorneys to be fired. Was that an
accurate statement?
Mr. Sampson. I don't think that's an accurate statement.
Senator Schumer. Ms. Scolinos did say on that occasion that
the Attorney General did sign off on the final list. Was that
an accurate statement?
Mr. Sampson. Yes, that's an accurate statement.
Senator Schumer. OK. And when did he sign off on the final
list?
Mr. Sampson. I don't remember specifically. It was during
this period in time when we had an ongoing discussion. I
remember that he asked me to make sure that I was consulting
with the Deputy Attorney General and that he agreed with the
list of U.S. Attorneys who should--who we might consider asking
to resign. And he also asked that I be sure to coordinate with
the White House.
Senator Schumer. All right. Did the Attorney General add or
remove any names from the list at any time?
Mr. Sampson. I don't remember him ever doing that.
Senator Schumer. OK. Did you discuss with the Attorney
General the reasons or method for selecting individuals to put
on that list?
Mr. Sampson. I don't remember specifically doing that. You
know, we had talked over the course of a couple of years about
the strengths and weaknesses of U.S. Attorneys, and he was more
interested in making sure that senior Department leaders agreed
that that was the right list.
Senator Schumer. But at some point in time, you mentioned
the names to him, right?
Mr. Sampson. Yes, I think do.
Senator Schumer. OK. So how could Ms. Scolinos say he
didn't participate at all in the--to quote her words, ``did not
participate in the selection of the U.S. Attorneys to be
fired''?
Mr. Sampson. I can't really speak to what she said.
Senator Schumer. OK. Thank you.
I have many more questions in this regard, Mr. Chairman,
but I am at a synapse here, so I yield.
Chairman Leahy. Senator Cornyn, I will recognize you next.
Senator Cornyn. Thank you, Mr. Chairman.
Mr. Sampson, in your written statement you say, ``I believe
the Department's response was badly mishandled. It was
mishandled through an unfortunate combination of poor
judgments, poor word choices, and poor communication in
preparation for the Department's testimony before Congress.''
Is that your testimony today?
Mr. Sampson. Yes.
Senator Cornyn. Mr. Sampson, for me these next two
questions are the most important part of this inquiry. I am
talking about for me personally. In your prepared statement,
you explain that, to your knowledge, no United States Attorney
was asked to resign for an improper reason. You say that, ``The
limited category of improper reasons includes an effort to
interfere or with or influence the investigation or prosecution
of a particular case for political or partisan advantage.''
At any time were you approached by anyone with the
administration with a complaint about a U.S. Attorney that you
would consider, taken alone, to be an improper reason to remove
the individual?
Mr. Sampson. No, Senator, I don't remember anything like
that.
Senator Cornyn. I believe Director Mueller of the FBI
testified a couple of days ago and was asked whether any of
these removals, to his knowledge, had provoked a response from
an FBI agent to the effect that it had interfered with an
ongoing investigation or prosecution. His testimony was
consistent with yours.
Am I correct that the Public Integrity Section of the
Criminal Division oversees the Department's efforts to combat
public corruption through the prosecution of elected and
appointed public officials at all levels of Government?
Mr. Sampson. Yes.
Senator Cornyn. At any point during the U.S. Attorney
evaluation process did you have any direct contact with
attorneys or other employees of the Public Integrity Section or
supervisors in the Criminal Division in relation to the work of
a particular United States Attorney or a particular district?
Mr. Sampson. I don't remember that. I spoke with Alice
Fisher from time to time about various issues, but I don't
remember speaking with her ever about the idea of identifying a
set of United States Attorneys who might be asked to resign.
And I certainly didn't speak with her with the idea of
identifying U.S. Attorneys who might be asked to resign so as
to influence a case for political reasons.
Senator Cornyn. Mr. Sampson, the United States Attorneys,
who are appointed by the President and confirmed by the Senate,
are those the ones who typically handle the day-to-day
investigation and prosecution of public corruption cases or
other serious crimes?
Mr. Sampson. It is my understanding that those sorts of
cases are usually handled by career investigators and
prosecutors.
Senator Cornyn. Is there any reason, to your knowledge, to
believe that the replacement of a United States Attorney with
another individual appointed by the President and confirmed by
the U.S. Senate would in and of itself tend to interfere or
impede with any investigation into any serious criminal matter
that a U.S. Attorney's Office was investigating or prosecuting?
Mr. Sampson. Not to my knowledge. My observation was that
U.S. Attorneys, as political appointees, came and went. I had
participated in the selection of all of the U.S. Attorneys from
the beginning of the administration, and about half of them had
already left office. There was much turnover in the U.S.
Attorney ranks, and it never was my belief that a U.S. Attorney
changeover would have much influence at all on a particular
case.
Senator Cornyn. Mr. Sampson, why have you chosen to
voluntarily appear before the Committee today rather than to
invoke your rights under the United States Constitution under
the Fifth Amendment?
Mr. Sampson. Well, because I wanted to come up to the
Senate and explain the facts as I understood them. I considered
what the appropriate thing to do was, and for me it was to come
and testify here today.
Senator Cornyn. At least one of the other people that
worked with you at the Department of Justice has invoked her
rights under the Fifth Amendment of the United States
Constitution.
Do you have any opinion with regard to why it is that a
public servant working at the Department of Justice would find
it necessary when a Senate Committee is conducting an
investigation to invoke her rights against self-incrimination?
Mr. Sampson. Senator, I don't, really. It's no small thing
to come up here and meet before this Committee. But I really
wouldn't want to venture an opinion.
Senator Cornyn. Well, Mr. Sampson, I appreciate your
testimony, and basically from everything that this Committee
has heard so far, at least what I have heard, there is no
evidence that any of this replacement of U.S. Attorneys was
designed to or actually did impede a criminal investigation or
prosecution. If there was any evidence, I would be the first
one to be jumping down your throat. But I have heard no
evidence of that.
If, at the end of this investigation there continues to be
no evidence of that, I regret the fact that dedicated public
servants get caught up in politically motivated attacks against
the administration or other individuals; and find it necessary
to have to hire lawyers and invoke their rights under the
Constitution not to testify rather than risk perhaps
prosecution for perjury or some other related criminal matter.
I think it is unfortunate. I really do. And I appreciate your
testimony here today.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you. I am not quite sure how to take
that last statement. We have investigations all the time.
Obviously, if people do not commit perjury, they do not get
prosecuted for perjury. Everybody, if they feel they might be
the subject of a criminal investigation, they do have a
constitutional right to take the Fifth.
Senator Cornyn. Mr. Chairman, my only point was I believe
there was some implication that by invoking the Fifth
Amendment, inference of guilt could be drawn from that. And I
think that is an incorrect statement of law, and I don't think
any negative inference can or should be drawn from anyone
invoking their constitutional rights.
Chairman Leahy. My statement is that if somebody does not
commit perjury, they do not get charged with perjury.
Senator Kohl?
Senator Kohl. Thank you, Mr. Chairman.
Mr. Sampson, what has always made our country and justice
system so special is our confidence in the independence and the
integrity of our judicial system, of which the Justice
Department, as you know, is an integral part.
Our Justice Department exists to serve the rule of law and
justice, not some partisan political agenda. So the firing of
these eight U.S. Attorneys has disturbed me and others greatly.
I believe it tells us how far from this proud tradition of our
democracy the administration has fallen.
The administration has fired nearly a tenth of our Nation's
U.S. Attorneys but retained the remaining 85. What separated
the 85 who remain from the 8 who were dismissed? Your e-mail,
Mr. Sampson, appears to tell us a story. The U.S. Attorneys you
chose to retain had proven themselves to be ``loyal Bushies''
or ``exhibited loyalty to the President and the Attorney
General.''
This process strikes at the core of the integrity of our
justice system. When one of the U.S. Attorneys in my State of
Wisconsin brings an indictment, I do not want to worry and I do
not want our citizens to have to worry that he did so for some
crass political motives or to settle scores with some political
opponent or to advance the agenda of his political party.
It is a sacred tenet of our democracy that politics must
stay out of criminal prosecutions. Merely by pursuing
investigations and obtaining indictments, U.S. Attorneys have
enormous power to blacken reputations and destroy lives.
To retain U.S. Attorneys on the basis of loyalty to a
political agenda and fire other well-qualified and regarded
U.S. Attorneys whom the political echelons at the Justice
Department and the White House suspected were not ``loyal
Bushies'' strikes at the very heart of our system of justice.
So I ask you, Mr. Sampson, what confidence can citizens
have in the fairness of our system and the unbiased nature of
decisions to prosecute after reviewing what happened with the
dismissal of these U.S. Attorneys? Isn't there tremendous
damage done to the Justice Department and our entire system of
justice when the appearance of partisan politics seems to trump
the administration of justice?
Mr. Sampson. Senator Kohl, thank you. I understand the
concern that animates your question. Let me just say that in my
e-mails, by referring to ``loyal Bushies'' or ``loyalty to the
President and the Attorney General,'' what I meant loyalty to
their policies and to the priorities that they had laid out for
the U.S. Attorneys.
The President, at the beginning of the administration,
launched a domestic policy initiative called Project Safe
Neighborhoods to increase Federal gun prosecutions. That is an
example of what I was referring to.
I agree wholeheartedly that with regard to particular
matters and investigating cases that U.S. Attorneys and Federal
law enforcement officers have to take the facts as they find
them and prosecute cases based on the facts and the law.
I understand that United States Attorneys also have another
role which is as political appointees to promote the
President's priorities and initiatives in the area of law
enforcement.
So I hope that my answer has given you the assurance that I
share that view as well.
Senator Kohl. Well, partially. What is the public's
perception to be when somebody who is--like Karl Rove, who is
the ultimate political operative, the ultimate political
insider, whose function is political almost by definition, is
so involved in this process? What would you expect average
people to think around the country other than the process is
highly politicized?
Mr. Sampson. Senator, I don't--I wouldn't want to speculate
on what the perception of people around the country is. I don't
know.
Senator Kohl. Well, can you disagree with people who might
have the impression, however inaccurate, that the process is
highly politicized when the ultimate political insider is so
involved in it?
Mr. Sampson. Senator, if that is the impression that people
have, then I regret it, because that does--
Senator Kohl. But isn't it--
Mr. Sampson.--bring harm--
Senator Kohl. But isn't it the job, one of the jobs of
people like yourself to do everything that they can to see that
that impression is not given, however accidentally?
Mr. Sampson. Senator, the answer is yes, and I failed in
that, and that is why I resigned.
Senator Kohl. We have heard the Attorney General compare
his management style to that of a CEO. He seems to have said in
recent days that he was not involved in determining which U.S.
Attorneys would be fired or for what reason, and yet he did
acknowledge that he signed off on the final list of
terminations that you compiled. In essence, he is saying that
he permitted his deputies to fire almost 10 percent of the U.S.
Attorneys with almost no input from him at all.
Now, this is hard to believe. Either the Attorney General
is simply absent as manager of the Justice Department, or he
has not been candid with the American people about his
participation in the firings. Which one is it? Or is there some
other explanation?
Mr. Sampson. Well, as I said in a previous answer, the
Attorney General was aware of this process from the beginning
in early 2005. He and I had discussions about it during the
thinking phase of the process.
Then after the sort of more final phase of the process in
the fall of 2006 began, we discussed it. He asked me to make
sure that the process was appropriate, that I was consulting
with the Deputy Attorney General and others in developing the
list, and then ultimately he approved both the list and the
notion of going forward and asking for these resignations.
Senator Kohl. Mr. Sampson, the fact that you and your
colleagues at the top echelons of Justice decided to fire these
eight U.S. Attorneys, individuals that you have referred to in
your written statement to the Committee as ``good people,'' who
``each served our country honorably,'' makes us wonder what
exactly did the other 85 U.S. Attorneys do to keep their jobs?
Were there any political discussions regarding any U.S.
Attorneys who were not fired that led them to pursue cases that
they were not otherwise working on or not to pursue cases that
they were working on? But, again, you fired these who were
otherwise good people, honorable people, doing nice jobs. You
didn't fire any of the other 85. What is it about the other 85
that caused them not to be fired?
Mr. Sampson. Senator, to my knowledge, there was no U.S.
Attorney asked to resign for the purpose of influencing a
particular case for a political reason. My view was that these
were political appointees, and that under the statute they
serve 4-year terms and then can hold over.
And so with regard to all 93 U.S. Attorneys, as far as I
can remember we didn't even consider U.S. Attorneys who were in
the midst of their 4-year term. So we only considered in a
collaborative manner among senior Justice Department officials
United States Attorneys who had served more than 4 years, who
had completed their term.
And of that group, we identified a group of U.S. Attorneys
who it was the considered judgment of folks could be thanked
for their service and that it would be beneficial to have a new
U.S. Attorney appointed.
Senator Kohl. Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Mr. Sampson, I should have noted at the beginning,
obviously if you at some point in here need a break or
something for a couple minutes, by following the normal
tradition of this Committee, and you are aware of that, give us
a signal.
Mr. Sampson. Thank you, Mr. Chairman.
Chairman Leahy. We will make it possible for you to go.
What I am going to do, in going back and forth, we decided at
the last meeting--Senator Cornyn spoke first for the
Republicans, but I am going to go by the list that Senator
Specter has, and under that list Senator Hatch will go next;
following Senator Hatch, Senator Feinstein on our side.
It is also my intention, so people can plan, to go
somewhere between 12:30 and quarter of 1 and break so that you
and your attorneys can have lunch. It would depend upon just
where we are in the sequence of questioning, and we will break
for about 1 hour.
Senator Hatch?
Senator Hatch. Well, thank you, Mr. Chairman.
One indication that the process was thorough and
deliberative was that in your January 2005 e-mail, ``rough
guess,'' you use the language, the rough guess was that you
were going to retire about 15 to 20 percent, and in the end
less than 10 percent were asked to resign. So this process, as
I understand it, took almost 2 years. Is that correct?
Mr. Sampson. Senator, the issue was raised, you know, in
early 2005 about whether all the United States Attorneys should
be removed and replaced.
Senator Hatch. I remember that.
Mr. Sampson. It was my view, along with others, that that
would not be appropriate and that we might consider as a
management effort to identify a smaller subset of folks who
might be asked to resign after their 4-year terms had expired.
And the process after that took a while.
In January of 2005, none of the first class of Bush-
appointed United States Attorneys had served their 4-year term.
The first expirations did not begin until the fall of 2005.
Senator Hatch. Right.
Mr. Sampson. So during 2005, it was really a thinking phase
in the process where we were just identifying U.S. Attorneys
where there were issues or concerns with them.
Senator Hatch. I am grateful that you agreed voluntarily to
come here today, and I am glad you are here primarily because
you were in charge of this process of evaluating U.S. Attorneys
and recommending some for replacement.
One thing the administration has consistently said is that
seven of the eight U.S. Attorneys were asked to resign for
performance-related reasons. Now, the only way properly to
evaluate the administration's decisions is on the
administration's terms, so it is very important, it seems to
me, to understand how the administration defined that key word
``performance'' in this process.
You were in charge of the evaluation process and in making
the recommendations. In that January 9, 2005, e-mail, you spoke
of a desire to remove U.S. Attorneys who you described as
``underperformers.'' Now, how did the administration view this
category of performance?
Mr. Sampson. Senator, as I said in my opening statement, it
was not a scientific or quantitative analysis for identifying
U.S. Attorneys who might be considered underperforming.
Senator Hatch. But it was more than looking at just
statistics, right?
Mr. Sampson. Frankly, Senator, it was looking at statistics
in a few of the cases, but in other cases it was a process of
asking leaders in the Department, folks who would have a reason
to have an informed judgment, who were U.S. Attorneys that
presented issues and concerns.
Senator Hatch. I want to be crystal clear on this. Our
Democratic colleagues here in the Senate and in the House claim
that there were no performance problems by using a very narrow
definition of that term. They say the only legitimate
performance problem is one that shows up on the statistical
evaluation conducted every 3 years.
So let me ask you again just to be clear: When you
evaluated the performance of U.S. Attorneys, did you look only
at statistical categories and written evaluations? Or was your
idea of performance much broader than that?
Mr. Sampson. To me, and to others in the process,
``performance-related'' was much broader. It included
production in the office, management abilities, extracurricular
U.S. Attorney work on the Attorney General's Advisory Committee
or other work in developing policies of the administration. It
included not engaging in policy conflicts with Main Justice.
It was a general process where I talked to senior leaders
in the Department and asked them if we were going to ask a
handful of U.S. Attorneys to resign so that others might serve,
who would you have on your list? And so ``performance-related''
is a plastic term that included a lot of things to a lot of
people in the process.
Senator Hatch. A lot of additional things than what you
have just said here today, right?
Mr. Sampson. Yes, sir.
Senator Hatch. Well, based on the broader definition of
``performance'' you actually used, do you believe that there
was or that there were legitimate performance-related bases for
asking several of these U.S. Attorneys to resign?
Mr. Sampson. Yes, I believe that all eight were asked to
resign for reasons related to their performance.
Senator Hatch. You were in charge of this project. It was
assigned to you. We have hundreds, even thousands of pages of
documents showing that you worked very hard on this project for
approximately 2 years. I want to ask you to go on to some of
the many claims and charges swirling around, most coming from
the other side of the aisle.
One of my Democratic colleagues said that the only U.S.
Attorneys the administration fired are those who ``are
investigating Republicans or not investigating Democrats when
somebody wanted them to.'' Is that untrue?
Mr. Sampson. To my knowledge, that was not a consideration
in adding a U.S. Attorney to the list.
Senator Hatch. One of my Democratic colleagues said that
when you were the Attorney General's Chief of Staff, you
actually admitted that U.S. Attorneys were fired for political
reasons. Have you ever admitted such a thing? Or were any of
them asked to resign for political reasons? Or should I say
``improper political reasons''? Because they serve at the
President's pleasure.
Mr. Sampson. The U.S. Attorneys are political appointees,
and as I said in my opening statement, I think the distinction
between ``performance-related'' and ``political'' is
artificial. I am not aware of any of the United States
Attorneys being asked to resign for the improper political
purpose of influencing a case for political benefit. But I am
aware that some were asked to resign because they were not
carrying out the President's and the Attorney General's
priorities, and in some sense that may be described as
political by some people.
Senator Hatch. But that is also described as a performance
situation.
Mr. Sampson. That's right.
Senator Hatch. Some of my colleagues focus on one of these
U.S. Attorneys more than any other, claiming that Carol Lam was
asked to resign as U.S. Attorney for the Southern District of
California because she was investigating and prosecuting the
corruption case involving former Representative Duke
Cunningham. They say it flat out so let me ask you flat out.
Did you conclude that Carol Lam should be replaced because she
was pursuing the Cunningham case?
Mr. Sampson. I did not.
Senator Hatch. Here is one of the things that confuses me
about this claim that Carol Lam was removed because of the
Cunningham case, or any other case, for that matter. Any other
case?
Mr. Sampson. Not to my knowledge, sir.
Senator Hatch. As I read the documents provided by the
Department of Justice, you listed Carol Lam as a recommended
replacement on a chart dated February 24, 2005. Now, that was
several months before the Cunningham scandal even broke in the
media, which was before Federal investigators and prosecutors,
as far as I could see, got involved. And I see correspondence
and other evidence that complaints about her performance were
coming in even earlier in 2004 from House Members.
And Southern California newspapers reported in 2003 about
the frustration of Border Patrol agents that Carol Lam's office
was bringing so few prosecutions of smugglers of immigrants.
And complaints about her performance in 2003 and 2004 led to a
February 2005 recommendation that she be asked to resign for
performance-related reasons.
It seems pretty reasonable, if those are true. I guess I am
baffled how a case that did not even exist could somehow have
been responsible for her removal, and that is the tale being
spun by some that I have heard. And I confess I just do not
understand it.
In reading the record correctly, when did concerns and
complaints about Carol Lam's performance arise and what were
they?
Mr. Sampson. Carol Lam is a good person and a very skilled
lawyer.
Senator Hatch. I agree with that.
Mr. Sampson. But she consistently appeared on the list that
I aggregated based on input from other senior Department of
Justice officials from the beginning of this process. My
recollection is that in the beginning it was due to her
office's failure to embrace the President's anti-gun violence
initiative, Project Safe Neighborhoods.
The district in San Diego simply did not devote appropriate
resources to that initiative, and it was the subject of
consternation in former Deputy Attorney General Jim Comey's
office and early on through the process.
Later, in 2005 and 2006, the concerns about Carol Lam
related to her office's immigration enforcement in the context
of the debate that was going on about comprehensive immigration
reform.
Senator Hatch. Well, thank you, Mr. Chairman. Sorry I went
over a little bit.
Chairman Leahy. Thank you.
Senator Feinstein?
Senator Feinstein. Thank you very much, Mr. Chairman.
I would like to go back to your answers to Senator
Specter's questions when he asked you about the notice you
received on the search warrant on May 10, 2006, and he asked
you if the real problem aspect was related to this case, and
you said no, it was her immigration record.
I am asking my chief counsel to give you a letter and am
asking that that letter be also distributed to the Committee as
well as to the press.
This is a letter dated February 15th--
Chairman Leahy. And does the Senator want that in the
record also?
Senator Feinstein. I would. Thank you very much.
Chairman Leahy. Without objection.
Senator Feinstein. February 15, 2007, signed by the
Director, Field Operations, of the United States Customs and
Border Protection Agency. It is sent to Carol Lam, and it is a
letter of commendation, and I will just read a few sections.
''To address the alien enforcement issue, your office
supported the implementation of the Alien Smuggling...Fast
Track Program and has demonstrated a commitment to aggressively
address the alien smuggling recidivism rate.''
''In support of [CBP] referrals for prosecution, your
office maintains a 100 [percent] acceptance rate of criminal
cases, while staunchly refusing to reduce felony charges to
misdemeanors and maintaining a minimal dismissal rate, and
supporting special prosecution operations.''
''In validation of...enforcement initiatives, your staff
aggressively prosecuted enrollees in the SENTRI program who
engaged in smuggling to support a zero tolerance posture. They
have focused on cases of fraud, special interest aliens, the
prosecution of criminal aliens, and supported our sustained
disrupt operations.''
''CBP-Prosecutions Unit presented...416 alien smuggling
cases, which represents a 33 [percent] increase 314 cases
presented in 2005.''
''CBP-Prosecutions Unit identified and pursued the
prosecution of several recidivist alien smugglers and
presented...30 non-threshold alien smuggling cases for
prosecution, resulting in a...100 [percent] conviction rate.
This represented a...329 [percent] increase over the
seven...non-threshold cases presented in 2005.
Additionally, a cumulation study done by USA Today places
Carol Lam as one of the top three attorneys in the United
States for the prosecution of these cases. It is a real
surprise to me that you would say here that the reason for her
dismissal was immigration cases.
Now, if I might go on, who, Mr. Sampson, was Dusty Foggo--
or is Dusty Foggo?
Mr. Sampson. I understand from news reports, Senator, and
from general knowledge that he was an employee at the CIA.
Senator Feinstein. And who is Mr. Wilkes?
Mr. Sampson. I don't know. I understand, again, from news
reports, that he's affiliated somehow with Mr. Foggo.
Senator Feinstein. And are you aware that on May 10th,
Carol Lam sent a notice to the Department of Justice saying she
would be seeking a search warrant of the CIA investigation into
Dusty Foggo and Brent Wilkes?
Mr. Sampson. I don't remember ever seeing such a notice.
Senator Feinstein. But the next day you wrote the e-mail
which says, ``The real problem we have right now''--right now--
''with Carol Lam that leads me to conclude we should have
someone ready to be nominated on 11/18, the day after her 4-
year term expires,'' that that relates to her immigration
record?
Mr. Sampson. The real problem that I was referring to in
that e-mail was her office's failure to bring sufficient
immigration cases. The Attorney General in the month before had
been subject to criticism at a hearing in the House Judiciary
Committee, and thereafter, at the Department of Justice in our
senior management meeting with the Deputy Attorney General and
others, there had been a robust discussion about how to address
that issue.
The Department was being criticized for not doing enough to
enforce the border, largely by House Republicans, and the
Attorney General was concerned about it. And he asked the
Deputy Attorney General to take some action to address that
issue.
I recall also that the Deputy Attorney General was
scheduled to meet with the California House Republicans who
were critical of Carol Lam on May 11th.
Senator Feinstein. OK. Let me just move on. On January
13th, Dan Dzwilewski, the head of the FBI office in San Diego,
said that he thought Carol Lam's continued employment was
crucial to the success of multiple ongoing investigations. Did
you call FBI headquarters and complain about those comments?
Mr. Sampson. I did. I called Lisa Monaco, who serves as a
Special Assistant to the Director of the FBI, and asked her why
an FBI employee was commenting on that issue.
Senator Feinstein. And why would you think that the special
agent in charge in the area should not comment on whether her
termination was going to affect cases?
Mr. Sampson. I understood that Carol Lam was a political
appointee and that a decision had been made in the executive
branch to ask her to resign so that others could serve.
Senator Feinstein. OK. I would like to just go over a
series of cases quickly in the time I have remaining. I will
finish it on the next round if I do not have a chance.
Were you aware that Bud Cummins was looking at an
investigation into Missouri Republican Governor Roy Blunt? I am
just asking if you were aware of that.
Mr. Sampson. I don't remember being aware of that.
Senator Feinstein. OK. To the best of your knowledge, was
the Attorney General?
Mr. Sampson. I don't know.
Senator Feinstein. Were there any discussions that you
heard that discussed this?
Mr. Sampson. No. I don't remember being aware of that,
Senator.
Senator Feinstein. OK. Were you aware that Dan Bogden had
opened a probe relating to Nevada Republican Governor Jim
Gibbons?
Mr. Sampson. I don't remember being aware of that.
Senator Feinstein. You were not? Were you aware that John
McKay declined to intervene in a contentious Governor's race in
Seattle?
Mr. Sampson. I remember hearing about that back in 2005, I
believe. But I don't really have any specific recollection
about that. I may just have heard of that through news
accounts.
Senator Feinstein. Were you aware that Paul Charlton had
opened preliminary probes into Republican Congressman Jim Kolbe
and Rick Renzi before the November election?
Mr. Sampson. I think that I was aware of that through news
accounts.
Senator Feinstein. And of what were you aware?
Mr. Sampson. That he had--that there was some preliminary
investigation of those two Congressmen.
Senator Feinstein. OK. And were you aware that David
Iglesias had been overseeing an investigation of State
Democrats and--let me just put a question mark there.
Mr. Sampson. I don't remember being aware of that until,
you know, the last month or so.
Senator Feinstein. Were you aware that calls were made to
Mr. Iglesias?
Mr. Sampson. I don't remember being aware of that.
Senator Feinstein. Were you aware that there were concerns
with that case?
Mr. Sampson. I was not aware of any concerns with any
particular case in New Mexico.
Senator Feinstein. My time is up. Thank you, Mr. Chairman.
I will continue in the next round.
Chairman Leahy. Senator Kyl is not here. I will go to
Senator Sessions.
Senator Sessions. United States Attorneys have got to be
strong people. They are given difficult challenges. They are
not shrinking violets. If somebody criticizes them, they are
not likely to wither and run and hide. I think that is
important to note, and I think every day most of them go
forward, almost universally, making tough calls that they
believe are just and fair and take the consequences no matter
what people say. I just hate anything that suggests here that
there is some serious problem with United States Attorneys not
doing what they think is right, because I think daily they do.
This idea to remove a number of United States Attorneys,
did the Attorney General himself object? Did he call the White
House and say, ``This is not a good idea''? You expressed some
concern. Your initial numbers were three, maybe four to be
terminated. Did he object to removing any United States
Attorney to give someone else a chance?
Mr. Sampson. No.
Senator Sessions. You know, Attorney Generals are lawyers
for the President in one sense--not his personal lawyer, but
they are the country's lawyer. And I think sometimes they just
have to say no, and I think a lot of Attorney Generals have,
and maybe we would have been better off if there had been some
explanation of the difficulties that you have raised here with
this process had been conveyed further up in a firm way.
Why didn't you just say early in 2005, which was the
appropriate time to tell people they would be leaving, they had
completed nearly 4 years at that time, most had, why didn't you
tell them, ``By the time your 4 years is up, maybe September or
October, later in the year, we want to replace you, and you
need to be looking for something else''? Why didn't that
happen?
Mr. Sampson. Well, Senator, the best of my recollection is
that the very first U.S. Attorneys had not completed their 4-
year terms until September, and then for the next year, sort of
September 2005 to September 2006, is when that first class' 4-
year terms expired.
Senator Sessions. Well, wouldn't you have told them in
January of 2005 that they would be moving on later on in that
year when their 4 years were completed?
Mr. Sampson. That was never communicated, I think perhaps
because--
Senator Sessions. That is sort of part of the bungling, it
seems to me. That would have been perhaps--you said it should
be done quietly, respectfully of the United States Attorneys.
But it really did not happen that way, did it?
Mr. Sampson. No, sir.
Senator Sessions. Now, I think we have got to talk about
this November 27th meeting. The Attorney General himself said
he was not involved in any discussions about what is going on.
We never had a discussion about where things stood.
Now, this was a pretty big meeting. Your e-mails indicate
you understood the seriousness, at least politically, if not
substantively, of removing a number of United States Attorneys.
Memos had been sent out. A lot of people of key importance were
at that meeting. Isn't that true?
Mr. Sampson. Yes.
Senator Sessions. How long did it take?
Mr. Sampson. I don't remember the meeting being that long.
Maybe 20 minutes.
Senator Sessions. And who all was there?
Mr. Sampson. I don't remember specifically, and perhaps the
documents reflect this. I remember specifically that the Deputy
Attorney General was there, and I believe that one or two of
his deputies; I believe that Monica Goodling, who was the
senior counsel to the Attorney General; and the Attorney
General and myself.
Senator Sessions. And the Attorney General stayed the whole
time?
Mr. Sampson. I don't remember specifically. I know that he
was there at least for a portion of the meeting. I think he's
acknowledged as much in the last couple of days.
I remember in my mind that it was in the Attorney General's
conference room and that at the close of the meeting, I went to
follow the Attorney General into his office, and the Deputy
Attorney General called me back with a question. I have that
recollection in my mind.
Senator Sessions. Well, I don't think it was a small
matter, and I think that the Attorney General--I am
disappointed that he did not remember that in his statement.
Now, with regard to Senator Schumer asking you about
preparing Mr. McNulty for his testimony, the Deputy Attorney
General did not know all the e-mails that have been produced
here and did not know all the conversations you had had with
people in the White House or other offices about these
appointments, did he?
Mr. Sampson. He did not, and at the time that we were
preparing Mr. McNulty, I didn't remember all of them.
Senator Sessions. And so you are not saying that you told
him everything, it later turned out, he really needed to know
to answer the questions honestly in the Committee, and
accurately.
Mr. Sampson. In the preparation for Mr. McNulty, we really
focused on the issues of the day, the questions that the
Congress had. And I remember that Mr. McNulty was focused on
trying to provide the Congress the information it wanted, and
so we talked about the different performance-related reasons
each of the U.S. Attorneys made it onto that list.
We talked about whether the administration had ever made a
decision to circumvent the Senate's confirmation process. And
we talked about whether to the knowledge of anybody in those
preparation sessions, any of these U.S. Attorneys had made it
on the list in an effort to influence a case for an improper
political reason.
That's what we really focused on at his preparation. We
didn't focus on the historical origins of this process, that it
initiated at the White House--
Senator Sessions. I can understand how that is possible,
and--
Chairman Leahy. Senator Sessions--
Senator Sessions. The green light is still one.
Chairman Leahy. I am sorry. I read it wrong. You are OK. Go
ahead, please. I apologize.
Senator Sessions. I can see how that is possible, but when
he was asked those things and when he responded in some
instances incorrectly, do you have any information that at that
time he knew something different and was providing information
to the Committee that he knew was inaccurate?
Mr. Sampson. I don't.
Senator Sessions. And so you believe he testified to the
best of his knowledge when he testified?
Mr. Sampson. I think we collectively failed to prepare
appropriately, and I felt some responsibility for that, and
that's why I offered my resignation to the Attorney General.
But I didn't intend to mislead Mr. McNulty or Mr. Moschella or
the Congress, and I honestly don't think either of them
intended to.
Senator Sessions. Well, I just think we want to get that
straight, if we can, and I appreciate your candor on that
subject.
With regard to Carol--I guess my time is up. I would just
say this: With regard to the FBI supervisor's comment that her
presence as United States Attorney was crucial to the success
of corruption cases, he should have probably been disciplined
for that because it is not so. I would be amazed if she
personally was trying those cases.
United States Attorneys turn over all the time, and I do
not believe that that is an accurate statement. If it is, I
would like to see him make proof of that. And if it comes up in
this Committee that what occurred had some tendency to block a
legitimate prosecution, then people are going to be in big
trouble with me and I think this Congress. But I assume and
hope and pray that that was just an overreaction by him to make
a statement that was over the top.
Chairman Leahy. Thank you, Senator Sessions.
Senator Sessions. And I think it was not correct for him to
do so.
Chairman Leahy. Thank you.
Senator Cardin?
Senator Cardin. Thank you very much, Mr. Chairman.
Mr. Sampson, thank you for being here. In your prepared
statement, you indicate that one reason for dismissal would be
the loss of trust or confidence of important local
constituencies in law enforcement or Government, and I want to
ask you whether that played a role in the eight U.S. Attorneys
that were dismissed, but I am particularly interested, quite
frankly, in New Mexico and California. And I would appreciate
it if you could answer that somewhat briefly.
Mr. Sampson. Senator, the reason the eight U.S. Attorneys
were put on the list was related to their performance, related
to--
Senator Cardin. My question is related to the concerns of
the local political establishment.
Mr. Sampson. I understand. I understand that the eight were
put on the list because of concerns related to their
performance. I also understand that--I know that at the time
the Department knew that Congressman Issa and others were very
critical of Ms. Lam.
I also have been reminded that the Attorney General
received three calls from Senator Domenici complaining about
Mr. Iglesias, and that the Deputy Attorney General received a
call from Senator Domenici complaining about Mr. Iglesias.
I am not sure those things were on my mind when those names
were added to the list, but they certainly may have been
influential. I know that the Department cares about the views
of Congress.
Senator Cardin. Who would be the principal person that
advised you on who should go on the list, who would be
responsible for weighing the local political issue?
Mr. Sampson. Well, that wasn't--I don't believe that was
specifically a consideration. I guess I just wanted to share
with you that looking back on this, as I sit here today, the
Department as a whole was aware of those complaints from those
Members of Congress. No one in the senior DOJ leadership who I
was getting input from would be responsible for assessing the
views of Congress specifically.
Senator Cardin. You mention in your testimony that, ``I
developed and maintained a list that reflected the aggregation
of views of these and other Department officials over a period
of almost 2 years.'' The Chairman asked you in the beginning
whether you had additional documents. Is this a document that
would be available that reflects these different views as it
relates to the U.S. Attorneys?
Mr. Sampson. It wasn't one document, and it wasn't a--it
was in the context of sort of a Presidential personnel context,
where I gathered information from various sources.
Senator Cardin. Did it include political information,
locally?
Mr. Sampson. I don't remember. I don't remember
specifically looking for that or receiving that.
Senator Cardin. How did you arrive at eight as the number?
It could have been nine, could have been seven, could have been
15? Was there a specific number you were looking for?
Mr. Sampson. There really wasn't. In fact, in mid-October,
after presenting the list to different DOJ officials, I
remember asking, let's go back and look at all of the--the
remaining United States Attorneys whose 4-year terms have
expired, which was another 30, maybe, and see if there are any
folks there that ought to be added to the list.
And I remember that four U.S. Attorneys were added to the
list at that time, relatively close cases but ones that we
could consider whether it would be beneficial or not to ask
them to resign.
Senator Cardin. You indicated you compiled the list over 2
years, but it is not one document, it is numerous documents.
Are those documents available?
Mr. Sampson. I don't personally have control of any
documents. I don't work at the Justice Department anymore. I
don't think they exist. They were lists that I kept and marked
up and then threw away, and a new list was created. So I
believe that the--
Senator Cardin. Over 2 years, you--I am a little bit
confused. Your testimony says that, ``I developed and
maintained a list that reflected the aggregation of views of
these and other Department officials over a period of almost 2
years.'' Is that not accurate then?
Mr. Sampson. To be clear, it was not one list that was
sustained through the 2 years. It was various--
Senator Cardin. And this list no longer exists?
Mr. Sampson. Senator, what it was, the Executive Office of
United States Attorneys prepares a running chart of all the
United States Attorneys, of when they were appointed, you know,
and other U.S. Attorneys who are in the pipeline to be
appointed or are there on interim appointments. It is a master
chart of the U.S. Attorneys at that specific time. And it is
constantly--
Senator Cardin. But your statement says that it had the
aggregation of views related, I assume, to the performance. And
my question is whether that exists, and you are indicating it
was more note taking and so you did not maintain one consistent
list over the period of 2 years.
Mr. Sampson. That's accurate. All I can say, it wasn't
scientific and it wasn't well documented.
Senator Cardin. I want to get to perception here, because I
tell you, we all worry about perception. Perception and public
confidence go hand in hand. You acknowledge here that an
inappropriate way to discharge a U.S. Attorney would be for
interference or influence on the investigation or prosecution
of a particular case for political or partisan advantages.
You have also acknowledged that you were aware of what was
happening in California at the time the decision was made to
ask for the resignation of the U.S. Attorney. You also
acknowledge you were aware in New Mexico of the contacts that
were made in regard to a sensitive decision on whether to
prosecute or not.
Do you see a perception problem here?
Mr. Sampson. Senator, at the time, in my mind I did not
associate at all the idea of asking a U.S. Attorney to resign
and the idea that it would be done to improperly influence a
case for political--
Senator Cardin. Do you see a perception problem here of the
timing relative to the investigations and the U.S. Attorneys
that were selected?
Mr. Sampson. Senator, in retrospect, I do. And I believe
that it was a failure on my part, and I want to take
accountability and responsibility--
Senator Cardin. But you are saying the failure was the
manner in which you handled it, but not the decisions that were
made on the dismissal of the U.S. Attorneys?
Mr. Sampson. I'm acknowledging, Senator, that it was a
failure on my part, and others, but I will hold myself
responsible for not--for the lack of foresight that people
would perceive it as being done to influence a case for an
improper political reason.
Senator Cardin. And the impact--
Mr. Sampson. I didn't associate--
Senator Cardin.--it is having on U.S. Attorneys' Offices
throughout this country.
Mr. Sampson. And I regret that.
Senator Cardin. You regret it. If you could do it over
again, would you have a different list? No list? Or what do
you--I am not sure I understand what you are acknowledging to
this Committee, whether it is just a public relations problem
in presenting it or whether it is a real problem in the method
that was used to ask for the U.S. Attorneys to resign.
Mr. Sampson. I guess I was just trying to answer your
question. I was acknowledging that at the time I personally did
not take adequate account of the perception problem that would
result.
Senator Cardin. Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
What we will do is we will go to Senator Whitehouse at this
point, and then we will recess until quarter of 1.
Senator Whitehouse?
Senator Cardin. Quarter of 1:00? Quarter of 2.
Chairman Leahy. Quarter of 2. We were using--I guess we
were not even using California time.
[Laughter.]
Chairman Leahy. Quarter of 2.
Senator Whitehouse. Thank you, Mr. Chairman.
Hello, Mr. Sampson.
Mr. Sampson. Senator.
Senator Whitehouse. Could you tell me who, other than your
family and your lawyers, you have discussed your testimony
today with before you came in here?
Mr. Sampson. No one.
Senator Whitehouse. Who has it been coordinated with, to
your knowledge, other than your own lawyers and your family?
Mr. Sampson. No one. I have not spoken with anyone at the
Department or anywhere else.
Senator Whitehouse. When you were in charge of this
project, did you keep a file on this project?
Mr. Sampson. I think it would be too much to say that I
kept a file. In my lower right-hand desk drawer, I had the
charts that I referred to in answering Senator Cardin's
question. It was just sort of a drop file. It was changed in
and out.
I think in looking back and reviewing the documents in
preparation for this testimony, I see that there were lots of
lists at different times, but as I said to Senator Cardin, I
didn't keep one list.
Senator Whitehouse. But did you keep one file where you
kept information related to this project?
Mr. Sampson. Again, just sort of a drop file in my lower
right-hand desk drawer.
Senator Whitehouse. Did somebody else keep it for you?
Mr. Sampson. No. There really was no file, there really was
no documentation of this. It was an aggregation of views and
various lists and notes at different points in time. As the
process finalized in the fall of 2006, it became a little more
formalized, but only in the sense that we were working in the
senior leadership of the Department to finalize the list.
Senator Whitehouse. So this was a project you were in
charge of. This was a project that lasted for 2 years. This was
a project that would end the careers of eight United States
Attorneys. And neither you nor anybody reporting to you kept a
specific file in your office about it?
Mr. Sampson. Senator, I didn't keep a specific file on this
issue. I guess I just didn't want to associate myself with the
premise in your question that it ended the careers of eight
U.S. Attorneys. My view is--
Senator Whitehouse. As U.S. Attorneys, in any event.
Mr. Sampson. My view is they are good people and skillful
lawyers and served well for 4 or 5 years.
Senator Whitehouse. But not U.S. Attorneys.
Let me ask you a different question. If you know, is it
true that a career attorney working for the Department of
Justice who refuses to cooperate with an OPR or an OIG
investigation and who refuses to testify is terminated as a
result of refusing to cooperate?
Mr. Sampson. I don't know.
Senator Whitehouse. You don't know?
Mr. Sampson. I don't know.
Senator Whitehouse. Do you know if it is the policy of the
Department of Justice that an officer of a corporation that is
under investigation who refuses to cooperate and testify is
required by the Department--the Department requires the
corporation to have that officer dismissed?
Mr. Sampson. I don't know. I understand that there are--
that the Department has a policy with regard to the charging of
corporations. But I'm not familiar with it. I'm not well versed
enough to answer your question.
Senator Whitehouse. We have a situation right now in which
there is an employee of the Department of Justice who has
asserted Fifth Amendment rights against self-incrimination with
respect to their conduct in office at the Department of
Justice. And that person has, as of the last I have here, not
been terminated.
In your recollection and to your knowledge, in the entire
history of the Department of Justice has there ever been an
attorney working for the Department of Justice who asserted
Fifth Amendment privileges against self-incrimination regarding
their conduct in office who was not terminated and who was kept
on as an employee and on the payroll?
Mr. Sampson. I've never looked at that question, and I
don't know.
Senator Whitehouse. Are you aware that courts and juries
are allowed regularly, as a matter of standard practice, to
draw an adverse inference, it is called, from the assertion of
Fifth Amendment privilege by a witness in a civil case?
Mr. Sampson. I have not researched that issue, and I don't
know, and I wouldn't want to venture a guess here today.
Senator Whitehouse. All right. In your experience as an
attorney, have you ever tried a criminal case?
Mr. Sampson. I have.
Senator Whitehouse. Where and when?
Mr. Sampson. In the Southern District of Florida in 2004, I
was appointed a special attorney and went and tried a case down
there.
Senator Whitehouse. That was the one case?
Mr. Sampson. Yes.
Senator Whitehouse. OK. Do you remember the nature of the
charges?
Mr. Sampson. Yes. It was a gun case. It was a felon in
possession of a firearm and also a felon in possession of
narcotics with the intent to distribute.
Senator Whitehouse. Have you ever tried a civil case?
Mr. Sampson. Yes.
Senator Whitehouse. When? Where?
Mr. Sampson. I was an associate at a law firm in Salt Lake
City for 2 years, and I participated in the trials. I was not
lead counsel, but participated--
Senator Whitehouse. Second chair?
Mr. Sampson. Yes, in a handful of cases.
Senator Whitehouse. OK. Should we be concerned with the
experience level of the people who are making these highly
significant decisions for United States Attorneys? And I
reference in particular an e-mail between you and Monica
Goodling in which she suggested that the U.S. Attorney for the
Western District of North Carolina should not be on the list,
and now--what do you know?--that person is not on the list. Do
you know whether Monica Goodling has ever tried a case?
Mr. Sampson. I don't know. I know that she served as a
Special Assistant United States Attorney in the Eastern
District of Virginia for a time. I wouldn't want to--let me
just leave my answer at that.
Senator Whitehouse. You wouldn't want to what?
Mr. Sampson. I am sorry, Senator. I just lost my train of
thought.
Senator Whitehouse. OK. Well, the question was: Should we
have any concern about the experience level in terms of
actual--you know, these are people out there making very hard
decisions in the real world, and they are under a lot of
pressure, and here their careers as United States Attorneys are
brought to an end, and in some cases it appears that the make-
or-break decision is being made by somebody who graduated from
law school in 1999, who may or may not have ever tried a case.
That seems pretty remarkable to me.
Mr. Sampson. Senator, the decisionmakers in this case were
the Attorney General and the Counsel to the President. I and
others made staff recommendations, but they were approved and
signed off on by the principals.
Senator Whitehouse. On what basis?
Mr. Sampson. They were--
Senator Whitehouse. Because they were your recommendations,
or did the principals look through the recommendations and make
an independent judgment themselves as to whether the U.S.
Attorneys should remain?
Mr. Sampson. I think you'd have to ask the principals.
Senator Whitehouse. You don't know?
Mr. Sampson. I think you'd have to ask the principals. I
made recommendations, and some of them were adopted and some of
them weren't.
Senator Whitehouse. I think my time has expired, Mr.
Chairman.
Chairman Leahy. I am not sure you ever got an answer to
your last question, but we will let it stand at that, and we
will stand in recess until quarter of 2.
Mr. Sampson. Thank you, Mr. Chairman.
[Whereupon, at 12:32 p.m., the Committee was recessed, to
reconvene at 1:45 p.m., this same day.]
AFTER RECESS [1:48 p.m.]
Chairman Leahy. Good afternoon. Before we start, I've been
advised that Mr. Sampson has a clarification he might--he wants
to make about something that came out in the testimony in our
morning session. And so before I yield to Senator Kyl, Mr.
Sampson, what is--what is the clarification you wish to make?
Mr. Sampson. Thank you, Mr. Chairman. I stated this morning
that I had not spoken with the President since the time that
I'd worked at the White House as Associate Counsel to the
President.
Chairman Leahy. As I recall, that was in answer to a
question I asked you.
Mr. Sampson. I--yes, sir. I remembered at lunch that I had
spoken to the President briefly sometime in 2005 at a meet-and-
greet in honor of Chief Justice Roberts's confirmation. I don't
think--we didn't speak about anything substantively. I'm not
even sure if I said words with the President. But I wanted to
be clear that I had been in a room with the President since I
worked there at the White House.
Chairman Leahy. Well, I appreciate that clarification. Had
you not, I would have reminded you of it. I was there at that--
I was there at that time, just for whatever that's worth.
Mr. Sampson. Thank you, Mr. Chairman.
Senator Kyl. The world wants to know if you had words with
the President.
Chairman Leahy. I did. And with the Vice President on
occasion.
[Laughter.]
Go right ahead.
Senator Kyl. And we don't need to go into what words,
right? Thank you, Mr. Chairman.
Mr. Sampson, I'm going to ask you a few questions, first,
about the former U.S. Attorney in Arizona, Paul Charlton. Did
you know Paul Charlton?
Mr. Sampson. I know Paul Charlton, Senator, and I think him
to be a fine man and a very good lawyer.
Senator Kyl. That was the other question I was going to
ask. He has a reputation of being a top-notch attorney and
performed very well as Arizona's U.S. Attorney.
The reason why he was--do you know the reason why--or the
primary reason he was asked to resign?
Mr. Sampson. I do.
Senator Kyl. And did that have to do with policy
differences with the Department?
Mr. Sampson. It did.
Senator Kyl. Primarily, two particular policy matters?
Mr. Sampson. Yes. I think, as Mr. Moschella testified in
the House a couple of weeks ago, the concerns and issues that
were raised with Paul Charlton related to the death penalty,
and also--the recording of interrogatories. The Department-wide
policy about that.
Senator Kyl. Right. In some cases there were differences of
opinion about when to seek the death penalty. Is that right?
Mr. Sampson. Yes.
Senator Kyl. And Paul Charlton had pretty much a running
dispute with the Department, wanting to use recorded
confessions by the FBI, and the FBI did not want to record
confessions in most cases. That policy dispute actually went on
for some time and represented several different meetings and
communications between Paul Charlton and the Department. Is
that right?
Mr. Sampson. That's my understanding.
Senator Kyl. Right. But, clearly, this is a policy dispute.
Let me ask one more question. Did you also believe that the
Department of Justice felt that perhaps Mr. Charlton had
pursued his point of view after the--after the Attorney General
had made his decisions final, that Mr. Charlton continued to
press his point of view?
Mr. Sampson. Yeah. Yes, sir. That was the substance of the
concern, I believe.
Senator Kyl. Right. So it was that rather than some kind of
under-performance in his duties as U.S. Attorney that
occasioned his request for removal. Is that correct?
Mr. Sampson. Again, I think the term ``under-performance''
has--has led to a lot of confusion here, but I think that's a
fair characterization.
Senator Kyl. Well, it may have led to some confusion, but I
think you would also acknowledge that there's a difference
between indicating that someone had a policy difference with
the administration and, as a result, the administration has the
perfect right to ask them to pursue something else.
On the other hand, when you suggest that it is a matter of
performance or under-performance, would you not agree it's
almost a challenge for any good lawyer to come forward and
defend his reputation or her reputation?
Mr. Sampson. I would agree with that, Senator. I think that
largely was the mishandling and bungling that the Department of
Justice did in the wake of this.
Senator Kyl. Right. So even though I can appreciate how you
could consider that, under the overall general rubric of
performance, policy differences would be subsumed in that, in
retrospect, would it not have been better to characterize
situations like Mr. Charlton's as predominantly depending on
policy differences rather than an under-performance of his
duties?
Mr. Sampson. Yes.
Senator Kyl. Thank you.
Did the Department of Justice or the White House, to your
knowledge, have a replacement in mind for Mr. Charlton when
they asked him to step down in January?
Mr. Sampson. To my knowledge there was no replacement ready
to replace Mr. Charlton.
Senator Kyl. And to your knowledge is there any yet? I
mean, Senator McCain and I have recommended someone, and I'm
not asking you to prejudge that. But there's nobody by the
White--the White House doesn't have its own candidate, to your
knowledge?
Mr. Sampson. Correct.
Senator Kyl. Was there any suggestion that anyone, to your
knowledge, ever considered investigations, either in the U.S.
Attorney's office in Arizona or the FBI in Arizona--was there
any suggestion that Mr. Charlton be removed because of a
pending or potential political corruption case?
Mr. Sampson. To my knowledge, that was not the case.
Senator Kyl. Could you say that--that--that you probably
would have had knowledge, given all of the discussions that
were occurring back and forth, if anyone sought to remove him
because of his involvement in, or lack of involvement in, a
political corruption case in which they might have had a
different point of view?
Mr. Sampson. I believe so. I was the aggregator of input
that was coming in from different sources. And based on
everything I observed and heard, that was not a factor.
Senator Kyl. So you would have probably known, although I
know you can't say for sure.
Mr. Sampson. I can only--
Senator Kyl. But you would have probably known if anybody
had ever talked about that.
Mr. Sampson. I can only speak for myself, and I--I was not
aware of any of that, to the best of my knowledge.
Senator Kyl. But you were the aggregator of information,
and didn't see anybody else speaking to it either. Is that
correct?
Mr. Sampson. That's correct.
Senator Kyl. Now, in an e-mail on September--or, excuse me,
December 7th, 2006, you wrote, ``Senator Kyl is fine.'' That--
there's a number 61 by that. I presume that designates the
number of the e-mail.
Were you aware that I had asked Paul McNulty to request of
the Attorney General to reconsider the decision with respect to
Mr. Charlton?
Mr. Sampson. I don't believe I was aware of that. My
recollection is that the Attorney General--as part of the plan,
the Attorney General was going to call you to let you know of
the decision to ask Mr. Charlton to resign, but that Mr.
McNulty indicated that he would make the call because he had a
relationship with you. And to the best of my knowledge, what I
remember is hearing a report that you understood that that was
the decision of the administration.
Senator Kyl. That you thought that I understood that from
the Attorney General?
Mr. Sampson. No. I--to the best of my--
Senator Kyl. You don't remember if it's from the Attorney
General or Mr. McNulty?
Mr. Sampson. No. To the best of my recollection, Mr.
McNulty called you. And to the best of my recollection, it was
reported to me that you were fine.
Senator Kyl. OK.
Mr. Sampson. That you understood that that was--
Senator Kyl. How about if I correct the record here.
Mr. Sampson. That's--
Senator Kyl. Because obviously you're not aware. The
Attorney General called me.
Mr. Sampson. OK.
Senator Kyl. I believe it was December 7th.
Mr. Sampson. OK.
Senator Kyl. And I expressed some shock and dismay at the
decision and asked if he could please explain to me the reasons
why. He said that he would send Paul McNulty up to see me, and
Paul McNulty did come to see me the next day.
At the conclusion of that meeting, I asked Mr. McNulty,
given all that he explained to me about the policy differences
rather than something wrong with Mr. Charlton's performance, if
he would ask the Attorney General to reconsider the decision
and allow Mr. Charlton to stay. You were not aware of that
conversation?
Mr. Sampson. No. I don't--I don't remember that, Senator.
Senator Kyl. One of the Department of Justice documents
says that Charlton ``worked outside of proper channels in
seeking resources without regard to the process of the impact
his action would have on other U.S. Attorneys' offices.'' Those
are--there's a number 168 and 169 by that. Do you know anything
about that? Was that your e-mail or document?
Mr. Sampson. It would--it would be helpful to me if I could
see that document. I don't remember precisely.
Senator Kyl. Let me--I'm not sure. Maybe if you look at
this you can--you can help me describe what it is. Does this
look familiar to you in any way?
Mr. Sampson. I did not prepare this document.
Senator Kyl. It looks like it might have been prepared in
the House. Well, let me just ask you, in this, what appears to
be a document prepared by Judiciary in the House, there's a
reference to Charlton ``worked outside of proper channels in
seeking resources.'' Do you know anything about that?
Mr. Sampson. I think, Senator, that this was a document
prepared at the Department of Justice. I don't remember it
specifically, but it looks to me like a document that was
prepared in advance of Mr. Moschella's testimony so that he
could go and explain the reasons why certain U.S. Attorneys,
these U.S. Attorneys who were asked to resign, were put on the
list. I--
Senator Kyl. OK. My time is up. But do you know anything
about that?
Mr. Sampson. I have some recollection that there was some
concern dating from the time that Attorney General Ashcroft was
the Attorney General, that Mr. Charlton had sought, by
contacting Members of Congress directly, to get resources put
in his office. I only have a vague recollection of this.
Senator Kyl. OK.
Mr. Chairman, if I could just conclude this with a comment.
It may--although I have no idea what it refers to, I routinely
met with the U.S. Attorney and his staff. Each year in December
I would meet with him and I would always ask him, what do you
need, what can we do to help you.
And on one occasion there was a comment about needing more
attorneys on immigration cases and I think I had something to
do with helping them to get some of those resources. So I
wouldn't want anybody to think that it was Paul Charlton
initiating a contact improperly, but it may well refer to the
fact that he was responding to a question that I had asked. I'm
not sure.
Thank you very much, Mr. Chairman.
Chairman Leahy. I thank the Senator from Arizona.
The Senator from Massachusetts?
Senator Kennedy. Thank you. Thank you, Mr. Chairman. And
thank you, Mr. Sampson, for appearing here. Others have
expressed that, but you've come here voluntarily and I think
that's impressive in an attempt to try and respond truthfully
to the questions put to you, so we thank you very much for
that.
Just very quickly, and I want to move past this, I think
you mentioned that you were the aggregator of input and
information on U.S. Attorneys. I think, in response to Senator
Whitehouse earlier, you said you kept a file on the U.S.
Attorneys in the desk drawer.
Do you know where that file is? Do you know whether all of
that material has been made available to the committee?
Mr. Sampson. Senator, what I remember--I don't remember
keeping a very good file. I remember that it was a chart and
notes and that I would dump it into the lower right-hand drawer
of my desk at the Department of Justice.
My understanding is that the Department has made an effort
to make everything relevant available to the committee, but I
resigned from the Department and don't have possession of any
of my files, and I don't--I really don't know.
Senator Kennedy. So we don't know whether everything that
was in that file has been made available to the committee.
We'll have to get a look at it.
Mr. Sampson. To the best of my knowledge.
Senator Kennedy. OK.
Mr. Sampson. There wasn't really much of a file.
Senator Kennedy. I see. OK.
Mr. Sampson. And I think that everything that was there has
been made available, to the best of my knowledge.
Senator Kennedy. The Justice Department has admitted now
that its February 23 letter was inaccurate in asserting that
the Department was not aware of any role played by Karl Rove in
the decision to appoint Tim Griffin to replace the U.S.
Attorney, Bud Cummins, in Little Rock, Arkansas.
Do you agree that the February 23rd letter was inaccurate?
Mr. Sampson. Senator, I participated in the drafting of
that letter. I drafted the first draft. And at the time I
drafted that letter, I was not aware of Karl Rove having
expressed an interest in Tim Griffin being appointed. I
remember thinking at the time, I'm not even sure Mr. Rove is in
support of Mr. Griffin being appointed.
And when I drafted that letter, I was focused on the
Attorney General's interim appointment of Mr. Griffin, which
had happened in mid-December, and I knew that the Attorney
General had independently determined to appoint Mr. Griffin. I
had recommended that the Attorney General appoint him to be the
interim U.S. Attorney. He asked for more information.
He determined to call Senator Pryor before doing that, and
he had a couple of phone conversations with Senator Pryor and
ultimately decided to appoint Mr. Griffin, but pledged to
Senator Pryor that he would continue to work with him as far as
getting a Senate-confirmed person in there.
But I remember at the time that I worked on the drafting of
that, I was not aware, and I did not remember then and I don't
remember now, whether Mr. Rove actually was interested in Mr.
Griffin being appointed. I circulated the letter widely to make
sure it was accurate, and no one disabused me of that idea.
Senator Kennedy. Well, you remember the December 19th
letter from yourself to the White House where you used those
words, ``knowing that getting him appointed,'' referring to
Griffin, ``was important to Harriet and Karl.'' That's what you
wrote.
Mr. Sampson. That e-mail was based on an assumption.
Senator Kennedy. OK.
Mr. Sampson. I knew that Sarah Taylor and Scott Jennings
had expressed interest in promoting Mr. Griffin for appointment
to be U.S. Attorney, and I assumed, because they reported to
Karl Rove, that he was interested in that.
But later in February, when I participated in the drafting
of that letter, I did not remember then ever having talked to
Mr. Rove about it. I don't remember, now, ever having talked to
Mr. Rove about it. I'm not sure whether Mr. Rove was supportive
of Mr. Griffin's appointment.
Senator Kennedy. Well, what I'm getting at is that you did
mention in your first e-mail that this was important to Karl,
et cetera. And then in the general letter that was circulated
to the White House, that aspect was dropped and the White House
effectively approved the letter.
And today, the Justice Department has admitted that the
letter was inaccurate in asserting the Department was not aware
of Karl Rove. That's the sequence, as I see it. Is that about
what you understand?
Mr. Sampson. To the--to the best of my knowledge, Senator,
I don't remember Karl Rove ever talking to me about this
subject, in person or on the phone. I don't remember anyone
telling me that Mr. Rove was interested in Mr. Griffin being
appointed, and that was my understanding at the time I
participated in the drafting of that letter.
Senator Kennedy. OK. Well, then do you know why you would
mention it in your e-mail where you said that it was
``important to Harriet and Karl'' if there was no reason? Do
you have any idea why you would write that?
Mr. Sampson. As I said, that was based on an assumption. I
knew it was important to Sarah Taylor and to Scott Jennings,
both of whom reported to Mr. Rove.
Senator Kennedy. All right. Now we have the situation where
the Justice Department has admitted that the 23rd letter was
inaccurate. So--do you agree with that?
Mr. Sampson. I'm not aware that the Department of Justice
has admitted that. It would be useful to me, if--if they've
done so, if I could see where that is.
Senator Kennedy. Yes. Well, it is in the wire story:
``Assistant Attorney General Richard Hurtling said that
statements made to Democratic lawmakers appear to be
contradicted by Department documents included in our
production.''
Then it said, ``The February 23rd letter, which was written
by Sampson, signed by Hurtling, emphatically stated the
Department is not aware of Karl Rove playing any role in the
decision to appoint Mr. Griffin. It also said the Department of
Justice is not aware of any lobbying effort and is now saying
that that's inaccurate.'' OK.
Mr. Sampson. Again, before I could comment on that I'd need
to see the Department's letter.
Senator Kennedy. All right.
Mr. Sampson. I can tell you that at the time I drafted that
letter, I was not aware of Karl Rove being interested in Mr.
Griffin's appointment. And as I sit here today, I don't--I
don't remember if that's true.
I obviously assumed that on--in December when I wrote that
e-mail, but I think that the e-mail is based on an assumption,
and to the best of my knowledge the letter was based on the
facts as I understood them at the time.
Senator Kennedy. Did you have any communication on the
replacement of U.S. Attorneys with anyone in the Republican
National Committee?
Mr. Sampson. Not to my knowledge.
Senator Kennedy. And did you attend any meetings in the
White House where the issues of replacing U.S. Attorneys was
discussed?
Mr. Sampson. Yes. On--on a handful of occasions I met with
Harriet Miers.
Senator Kennedy. Can you tell us how many--can you tell us
who was there at those meetings?
Mr. Sampson. I remember speaking with Harriet Miers and
Bill Kelley about that. Sometimes this subject would come up
after a Judicial Selection Committee meeting, which was a once-
a-week meeting that happened in the Roosevelt Room.
Senator Kennedy. Let me just ask you, because my time is
running out, Chris Oprison. Did he attended, or did Karl Rove
attend? William Kelley?
Mr. Sampson. Attend what, Senator?
Senator Kennedy. Those meetings in the White House on the
issue of replacing U.S. Attorneys.
Mr. Sampson. The issue of replacing U.S. Attorneys most
frequently came up as sort of a pull-aside after a Judicial
Selection meeting.
Senator Kennedy. How many meetings, approximately?
Mr. Sampson. Well, Judicial Selection meeting--Judicial
Selection Committee meeting happened regularly, approximately
once a week. Maybe something less than that. It would be
canceled from time to time.
And the issue of U.S. Attorney replacements was quite
episodic in--you know, in the--in the thinking phase of this
through 2005 and 2006, and it would just come up occasionally
after a Judicial Selection meeting, usually between myself,
Harriet Miers, and Bill Kelley.
Senator Kennedy. Well, my time is up. But this is a matter
of enormous importance, a U.S. Attorney replacement treated
casually. At some time, Mr. Chairman, I'd like to find out
about these meetings, who was there--who was present and what
was said, and what was on the agenda. But I will wait until my
next turn.
Chairman Leahy. You're talking about the Wednesday
afternoon--you're talking about the Wednesday afternoon
meetings.
Senator Kennedy. I'm talking about the meetings where the
issue of replacement of U.S. Attorneys was discussed.
Mr. Sampson. Judicial Selection Committee was regularly
scheduled for Wednesday afternoons at 4, although it moved
around and changed as the principals' schedules dictated.
And the question of U.S. Attorney replacements only came up
every once in a while, and it was usually after that meeting in
Ms. Miers's office or sort of just off to the side in the
Roosevelt Room.
Chairman Leahy. I'm going to go to Senator Grassley. But
maybe I was confused on something you said. When did you go off
the DOJ payroll?
Mr. Sampson. On--on Wednesday, March 14th.
Chairman Leahy. So you're off it now?
Mr. Sampson. Yes, sir.
Chairman Leahy. You're getting no money at all from the
DOJ?
Mr. Sampson. That's right, although I think the Department
owes me some compensation for vacation time I never took, and I
continue to get health insurance for my family through COBRA.
Chairman Leahy. Senator Grassley?
Senator Grassley. Thank you, Mr. Chairman.
Obviously we're here because Congress has received
inconsistent information on firing of these attorneys. It's
undisputed that the President has these people serving at his
pleasure, that a President has a right to hire and fire U.S.
Attorneys for most any reason, except if it's improper for them
being involved for retaliatory reasons or impeding or
obstructing prosecution.
You know, we all know that a President is entitled to
replace his U.S. Attorneys if he wants to, particularly if--he
ought to be doing it if they aren't following his prosecutorial
priorities aggressively enough. And it's not against the law
for a President to replace U.S. Attorneys if he wants to give
other individuals an opportunity to serve in that position.
But once an administration started making representations
about how and why these firings came about, those
representations need to at least be accurate and complete.
The document productions have revealed conflicting
information with the testimony of Justice Department officials
before respective committees up here, as well as with letters
that Senators have received. Any representations to Congress
need to be correct or else our oversight activities won't be
able to get to the truth.
The bottom line is, we shouldn't have conflicting
statements coming from somebody who is the top law enforcement
officer of the United States, or his staff. We expect them to
be prepared to answer questions. Congress and the American
people ought to get a consistent story, and we ought to be able
to expect the truth.
As an aside, I'm glad that we're having a Committee hearing
to sort out facts and get the story straight. Doing things out
in the open, Mr. Sampson, as you're doing with us today, is
very important and we thank you for being here.
Chairman Leahy. If the Senator would yield. And I
apologize.
Senator Grassley. Yes. Go ahead.
Chairman Leahy. Mr. Sampson, we've just received word that
the Republicans have objected, under the Senate rules, of this
meeting continuing. I think that's unfortunate, but I will
follow the rules of the Senate.
Senator Grassley. Does it apply to a Republican, too?
Chairman Leahy. The Republicans are the ones that don't
want to have the hearing, so Republicans have the right, under
the rules, to do that. We will stand--we will not adjourn. We
will stand in recess until the Senate recesses. We will come
back and Senator Grassley, if he wishes to be heard further,
will be the first one to be heard.
Senator Grassley. Thank you.
[Whereupon, at 2:15 p.m. the hearing was recessed.]
AFTER RECESS [2:36 p.m.]
Chairman Leahy. Just so people can understand what is going
on here, the lack of permission going forward has now been
changed. I had raised questions and whatever objection there
was on the Republican side has been withdrawn so that we can
continue.
When Mr. Sampson comes back, we will start with Senator
Durbin. I--somebody here just asked me if this all could have
been just as a result of an accident that we had this lack of
concurrence by the Republicans to go forward.
I grew up in a faith that believes in miracles and it's
conceivable it's an accident. I've been here 33 years. I've
never seen it happen before. So, maybe it was, but I suspect it
was not.
Again, I would add, if people feel that somehow you can
stop these hearings by having objections, and every Senator is
within their right to do so, it is really not something that's
going to happen because we will have the hearings if we have to
have them in the evenings, or on weekends, or during recess.
Mr. Sampson, I apologize to you. You were not the one
making the objection. You were not the one--it's obviously, in
speaking briefly with you and your attorney out back, I suspect
you want nothing more than to get this session wrapped up and
not to have it interrupted.
We'll start with Senator Durbin of Illinois. It's your
turn, sir.
Senator Durbin. Thanks, Mr. Chairman.
Thank you. Thank you for testifying. I mean that sincerely
and I appreciate your coming forward to answer these questions.
And I read your opening statement in which you outlined what
you considered to be reasonable standards to judge the
performance of a U.S. Attorney, saying that Presidential
appointees are judged not only on professional skills, but
management abilities, relationships with law enforcement and
government leaders, support for the priorities of the President
and the Attorney General.
Then you go on to say, ``if he or she is unable to maintain
the morale and motivation of line assistants, is resistant to
the President's or the Attorney General's constitutional
authority, loses the trust and confidence of important local
constituencies in law enforcement or government, or fails to
contribute to the important non-prosecutorial activities,''
these are all elements that you think are reasonable in judging
the performance.
Now, you produced, or the Department produced, for this
hearing e-mails, one dated March 2, 2005, in which you had sent
to Harriet Miers a template or chart of attorneys, U.S.
Attorneys, and they were given three basic grades, as I
understand it: ``strike-out'', removing weak U.S. Attorneys;
``bold'', recommending that you keep strong U.S. Attorneys; and
a third category, ``no recommendation--have not distinguished
themselves either positively or negatively.''
Subsequent to producing that document, administrative
officials confirmed in the press that U.S. Attorney Patrick
Fitzgerald of the Northern District of Illinois had been
characterized in this March, 2005 memo to Harriet Miers as a
U.S. Attorney who had not distinguished himself, neither
positive nor negative.
I want to explore that for a moment, basically, from two
different perspectives. First, the perspective of the New York
Times this morning that talks about the Wednesday meetings at
the White House, and talks specifically about Karl Rove's
concerns over Patrick Fitzgerald as the Northern District of
Illinois U.S. Attorney, and second, from the perspective of the
fact that I was involved in his selection.
I had to sign a blue slip for him to become the U.S.
Attorney, and I did after learning that he had been the lead
prosecutor in the World Trade Center bombing in 1993, and
speaking to him personally, and then hearing from his
colleagues that he was absolutely one of the best, no political
agenda, a real prosecutor's prosecutor.
And remembering that in December, 2003 when Attorney
General Ashcroft recused himself from the investigation
involving Robert Novak's disclosures, that it was James Comey,
the Deputy Attorney General, who picked Patrick Fitzgerald
among all others to be the special prosecutor in that case.
So I'd like to ask you, by what basis did you come to the
conclusion in your memo that Patrick Fitzgerald of the Northern
District of Illinois had not distinguished himself?
Mr. Sampson. Senator, Pat Fitzgerald is widely viewed
within the Department of Justice as being a very strong U.S.
Attorney. He's a strong manager, he's a skillful lawyer, and
is, by all accounts, a very strong United States Attorney.
That e-mail that I sent to Harriet Miers early in March was
one of the first--I believe sort of the first time that I had
ever aggregated information and put together a list and shared
it with the White House. I knew that Mr. Fitzgerald was
handling a very sensitive case and really didn't want to rate
him one way or the other.
Senator Durbin. So you're saying that you were neutral in
terms of his performance because he was involved in a
controversial case?
Mr. Sampson. Yes, Senator. To the best of my recollection,
I didn't rate him any way. And after consulting with folks at
the Department of Justice to get their views about the relative
strengths and weaknesses of other U.S. Attorneys, I did not
rate him. I knew that he was handling a sensitive case and
didn't want to rate him either way.
Senator Durbin. I have to pursue this. If the Deputy
Attorney General thought so highly of him as to choose him to
prosecute that controversial case, you felt that you couldn't
communicate to the White House a feeling as to whether he was a
strong or weak U.S. Attorney?
Mr. Sampson. Senator, what I remember is that that first
list of U.S. Attorneys who might be considered for resignation
after their 4-year terms had expired was a--a very preliminary
draft. And I don't remember rating Mr. Fitzgerald one way or
the other, and I--and I believe I probably did that because I
didn't want to go anywhere near that.
I knew he was handling a very sensitive case and
investigation that included the White House. I was
communicating a list to the White House, and so I just didn't
touch it.
Senator Durbin. So were you concerned that if you gave him
a positive rating, that the White House might look unkindly on
that designation?
Mr. Sampson. I don't remember feeling that way.
Senator Durbin. Well, I'm troubled by this because--is
there anything that you knew about him to suggest that he
wasn't an effective, strong U.S. Attorney?
Mr. Sampson. No. I believe he is a strong, effective U.S.
Attorney and I don't remember ever hearing any contrary
reporting from anyone within the Justice Department, or
anywhere else, for that matter.
Senator Durbin. You can see where it leads to a conclusion
that, because he's involved in a case that necessarily involves
people who work in the White House, that the Department of
Justice, at least from your point of view, didn't want to go
out on a limb and say something positive about him.
Mr. Sampson. To the best of my recollection, I didn't want
to say anything at all about him.
Senator Durbin. Were you ever party to any conversation
about the removal of Patrick Fitzgerald from his position as
Northern District of Illinois U.S. Attorney?
Mr. Sampson. I remember on one occasion in 2006, in
discussing the removal of U.S. Attorneys or the process of
considering some U.S. Attorneys that might be asked to resign,
that I was speaking with Harriet Miers and Bill Kelley and I
raised Pat Fitzgerald. And immediately after I did it, I
regretted it.
I thought--I knew that it was the wrong thing to do. I knew
that it was inappropriate. And I remember at the time that Ms.
Miers and Bill Kelley said nothing. They just looked at me. And
I immediately regretted it and I withdrew it at the time, and I
regret it now.
Senator Durbin. Do you recall what you said at the time
about Patrick Fitzgerald?
Mr. Sampson. I said, ``Patrick Fitzgerald could be added to
this list.''
Senator Durbin. And there was no response?
Mr. Sampson. No. They looked at me like I had said
something totally inappropriate, and I had.
Senator Durbin. Why did you say it? Why did you recommend,
or at least suggest, that he be removed as U.S. Attorney?
Mr. Sampson. I'm not sure. I think I--I don't remember. I
think it was maybe to get a reaction from them. I don't think
that I ever--I know that I never seriously considered putting
Pat Fitzgerald on the list, and he never did appear on the
list.
Senator Durbin. It's interesting what has happened with the
Bush Department of Justice, the Gonzales Department of Justice,
recently. There was a time when Senators would suggest one name
to the Department of Justice, and that was referred to in this
New York Times piece that Karl Rove was quoted as saying he was
upset that my former colleague, Peter Fitzgerald, only
recommended one name, Patrick Fitzgerald, in this case.
Now it seems to be the custom and practice that multiple
names are suggested. In Illinois, former Speaker Hastert has
been told to submit at least three names.
Can you tell me why that practice has changed?
Mr. Sampson. I remember that at the beginning of the
administration the then-counsel to the President, Alberto
Gonazales--this is the best of my recollection. I believe that
he sent a letter to members of the Senate with regard to
judicial appointments, and perhaps also U.S. Attorney and U.S.
Marshal appointments, requesting that Senators provide three
names for each vacancy. And I know that that's the general
practice that the administration has followed.
Senator Durbin. One last question. Were there any
conversations between you or conversations you overheard
involving Karl Rove and the appointment of Patrick Fitzgerald
as U.S. Attorney for the Northern District of Illinois?
Mr. Sampson. Not that I remember. I really don't think so.
Senator Durbin. Thank you very much.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you, Senator Durbin.
Let me give you a copy--I'm going to do as I did with the
documents before, skip the zeros. This is OAG 5-11. It's a copy
of a March 2, 2005 e-mail exchange between you, White House
Counsel Harriet Miers, attaching a copy of a chart entitled
``U.S. Attorneys Appointment Summary''. Is that correct?
Mr. Sampson. Yes. I have OAG Number 5.
Chairman Leahy. Yeah.
Mr. Sampson. Yeah.
Chairman Leahy. And in this version on the list of U.S.
Attorney recommended for replacement, you have bolded the name
of David Iglesias. Is that right?
Mr. Sampson. Yes.
Chairman Leahy. And according to the key in your e-mail, by
doing that that's an indication of somebody to retain, to keep
as U.S. Attorney. Is that correct?
Mr. Sampson. At the time that I drafted this or sent this
e-mail and this chart, that's correct.
Chairman Leahy. OK.
Now, let me give you a copy of documents OAG 20 and 21,
January 9, 2006 e-mail you sent to White House Counsel Harriet
Miers and her deputy, William Kelley. Do you have that, sir?
Mr. Sampson. Yes. OAG 20 and 21?
Chairman Leahy. Yes.
Mr. Sampson. I do.
Chairman Leahy. Now, in this e-mail you recommended that
the Department of Justice and the Office of the Counsel to the
President work together to seek the replacement of a limited
number of U.S. Attorneys. And this e-mail listed U.S. Attorneys
that might be considered for removal or replacement. These are
people that might be considered for removal and replacement.
David Iglesias' name is not on there, is it?
Mr. Sampson. Correct.
Chairman Leahy. And then let me give you a copy of a
document numbered OAG 121 through 122, September 13, 2006 e-
mail from White House Counsel Harriet Miers to you that you
forwarded to Monica Goodling. Is that correct?
Mr. Sampson. Yes, sir.
Chairman Leahy. And Goodling responded to you, and you
responded to Ms. Miers with a list on September 13th last year.
Now, that list of U.S. Attorneys to be replaced did not include
David Iglesias, did it?
Mr. Sampson. No, sir.
Chairman Leahy. Then let me give you a copy of documents
number DAG 546, 547, an e-mail exchange on October 17th, a
couple weeks before the elections, between you and Michael
Elston, Chief of Staff to the Deputy Attorney General. David
Iglesias is not on that list, is he?
Mr. Sampson. No, sir.
Chairman Leahy. Now, I provide you with a copy of documents
numbered DAG 548, 549, copy of a November 7th, 2006 e-mail you
sent to Michael Elston, with the subject line, ``U.S. Attorney
Replacement Plan''. You associated Mr. Elston's comment. You
told him you wanted to send it to White House Counsel Harriet
Miers that very night.
Now, on the November 7th list, the name of David Iglesias
has now been added. Is that correct?
Mr. Sampson. Yes.
Chairman Leahy. Is that the first time Mr. Iglesias's name
was added to this November, the first time his name was
included on the list of U.S. Attorneys to be replaced?
Mr. Sampson. I remember that in the weeks before this,
sometime after October 17th but before November 7th, in
consultation with the Deputy Attorney General and his Chief of
Staff and others in the senior leadership in the Department,
the Department went back and looked at the list and asked the
question, is there anyone else who should be added.
Chairman Leahy. But is this the first time you've seen him
on a list?
Mr. Sampson. And at that time, four additional U.S.
Attorneys were added to the list sometime during that period.
Chairman Leahy. Do we have that list? I mean, supposedly we
have all the things from the Department of Justice. I haven't
seen any list prior to November 7th that has Mr. Iglesias's
name on it. Is there--are you aware of a list somewhere that
has his name on it that we haven't received?
Mr. Sampson. No, Senator. But if you look at this document
dated November 7th, you'll see that there are three other names
that are redacted. Sometime between October 17 and November
7th, four names were added, including David Iglesias.
Chairman Leahy. Are you saying that there is a piece of
paper from the Department of Justice that has Mr. Iglesias's
name on it before November 7th? I mean, apparently they've told
us they've given us everything with his name. Are you telling
me they've withheld something?
Mr. Sampson. No, sir. This is the first one I'm aware of.
Chairman Leahy. All right. That's was--
Mr. Sampson. To the best of my--to the best of my
knowledge, this is the first time I'm aware of it.
Chairman Leahy. That was my question.
Mr. Sampson. I apologize for not understanding.
Chairman Leahy. All right. Now, I just want to make sure
that I'm understanding you correctly. You are under oath and I
want to make--I don't want to ask a question that might leave
some ambiguity in your mind.
Mr. Sampson. Mr. Chairman, may I say, I left the Department
and don't have possession of any of the documents.
Chairman Leahy. No, I understand. This is the only--
Mr. Sampson. So I've prepared by reviewing these documents.
And to the best of my knowledge, this is the--this is the first
document that reflects David Iglesias.
Chairman Leahy. But certainly it's the first one that they
provided us that has his name on it. It's right after the
elections.
Now, on March 5th Mr. Iglesias testified before this
Committee under oath that Senator Domenici and Congresswoman
Heather Wilson called him prior to the 2006 election to ask him
about a pending high-profile investigation in New Mexico.
Then according to news accounts, New Mexico Party Chairman
Alan Weh complained in 2005 about Mr. Iglesias to someone in
the White House. Mr. Weh later asked Mr. Rove about Mr.
Iglesias at a December 14, 2006 White House holiday party, and
he was told by Mr. Rove that ``he's gone'', meaning Iglesias.
The White House has said that President Bush complained to
the Attorney General in October of 2006 about certain U.S.
Attorneys, although the U.S. Attorney has told us he doesn't
recall that conversation with the President.
What do you recall hearing any complaints about the way Mr.
Iglesias handled the corruption investigation and voter fraud
cases in New Mexico?
Mr. Sampson. I don't remember hearing any complaints or
anything about Mr. Iglesias's handling of corruption cases in
New Mexico. I do remember learning, I believe from the Attorney
General, that he had received a complaint from Karl Rove about
U.S. Attorneys in three jurisdictions, including New Mexico,
and the substance of the complaint was that those U.S.
Attorneys weren't pursuing voter fraud cases aggressively
enough.
Chairman Leahy. And where did those complaints come from?
Mr. Sampson. I believe, to the best of my recollection, I
learned of them from the Attorney General.
Chairman Leahy. Where did the Attorney General get them?
Mr. Sampson. I--to the best of my recollection, I think
that he told me that he got them from Karl Rove.
Chairman Leahy. And where did Karl Rove get them?
Mr. Sampson. I don't remember ever knowing that. I don't
know.
Chairman Leahy. Did you receive any comments from any
official in the White House complaining that David Iglesias was
not aggressive enough in prosecuting voter fraud cases or
corruption cases?
Mr. Sampson. I don't remember anything other than what I
just shared with you.
Chairman Leahy. And are you aware of anybody in the FBI
getting a complaint that he wasn't being aggressive enough?
Mr. Sampson. I don't remember hearing that at all.
Chairman Leahy. Do you recall hearing about the President,
first-hand knowledge of the President complaining to the
Attorney General about U.S. Attorneys not being aggressive
enough?
Mr. Sampson. I don't remember hearing anything like that.
Chairman Leahy. And you had at one time listed David
Iglesias as a candidate for Principal Associate Deputy Attorney
General. Is that correct?
Mr. Sampson. That's correct. In 2004.
Chairman Leahy. Describing him as ``a diverse up-and-comer,
and solid.''
Mr. Sampson. Yeah. When this process began in early 2005,
my belief was that Mr. Iglesias was a diverse up-and-comer. As
I said, I knew that diversity was important to the President
and to the Attorney General. I had met David and thought very
highly of him. I came to learn, over 2005 and 2006, that others
in the Department had mixed views about him, and ultimately
those factored into his being added to the list.
Chairman Leahy. And you--but he never got on a list that
you saw printed until immediately after last fall's elections.
Mr. Sampson. I don't remember one.
Chairman Leahy. Thank you.
Senator Specter?
Senator Specter. Mr. Sampson, going back to the issue of
whether people other than you were considering using the
provisions of the PATRIOT Act to circumvent the--to circumvent
the Senate, you sent an e-mail to Ms. Miers dated September
13th talking about ``utilize[d] the new statutory provisions.''
And she comes back and says, ``I'[ve] not forgotten I need to
followup on the info, but things have been crazy. We'll be back
in touch.''
Then you're still pursuing this on an e-mail on December
19th to Christopher Operson, talking about utilizing the new
procedures, saying ``I think we should gum this to death, ask
the Senators to give Tim a chance, meet with him, give him some
time in office, see how he performs....
If they ultimately say, no, never, and the longer we can
forestall that, the better. Then we can tell them we'll look
for other candidates, ask them for recommendations, evaluate
the recommendations, interview their candidates, and otherwise
run out the clock. All of this should be done in `good faith',
of course.''
Weren't you really suggesting utilizing the provisions of
the PATRIOT Act, as you say, to ``run out the clock'', which
appears to mean the end of the President's term, and never have
these replacement U.S. Attorneys submitted to the Senate for
confirmation? Isn't that the fair reading of that e-mail?
Mr. Sampson. Senator, I think--I think that that's a fair
reading. I think that I was suggesting that. That was a bad
idea at the staff level that was not ever accepted by the
Attorney General.
Senator Specter. Let's--let's--let's--let's proceed. It was
a bad idea. It really wasn't good faith at all, was it, to run
out the clock?
Mr. Sampson. That wouldn't have been in good faith.
Senator Specter. OK.
Now, what was happening at the level of White House Counsel
Harriet Miers? You have, after the memorandum, the e-mail that
you sent on September 13th, and she responds on September 17th.
And now we're all the way to December 19th, and you're still
communicating with the White House on this plan to circumvent
the Senate.
Now, is it credible that somebody in the White House at the
level of White House Counsel Miers, is not going along with
this idea to circumvent the Senate, when you're working on it
in October, November, December, 3 months later? It doesn't
sound like the kind of a matter that is a staffer's idea that
has been rejected by the White House. You're still working on
it. You're in touch all the time with these folks.
Mr. Sampson. Senator--
Senator Specter. How about that?
Mr. Sampson. Senator, if I could draw your attention to the
U.S. Attorney Replacement Plan that I drafted.
Senator Specter. Well, you could, but after you answer my
question. If you--if you're working on it--if you're working on
it for 3 months on avoiding the U.S. Senate, how can it be that
you would spend three months working on something which the
White House officials, like White House Counsel Miers is not
going along with?
Mr. Sampson. Senator, I don't think the principals ever
considered abusing the Attorney General's appointment authority
in that way.
Senator Specter. Abusing the U.S. Attorney--abusing the
appointment authority. Did you consider abusing it?
Mr. Sampson. Senator, the U.S. Attorney Replacement Plan--
Senator Specter. Did you consider abusing it?
Mr. Sampson. I recommended to Harriet Miers--
Senator Specter. When you were functioning not in good
faith, you were abusing it, weren't you?
Mr. Sampson. Senator, if--if I would be permitted to give
you an answer here. With regard to--
Senator Specter. OK. I'd like an answer. But the one I'd
like, is to my question.
Mr. Sampson. As I testified earlier, that was a bad idea at
the staff level. It was rejected by the principals. And it was
rejected by the principals with regard--
Senator Specter. The question is, were you--were you
abusing the principle? You used the word ``abused''. That's why
I'm coming back to it.
Mr. Sampson. In hindsight, I believe that it would be an
abuse of the Attorney General's appointment authority to--
Senator Specter. OK. Let's--let's go--let's go to White
House Counsel Miers in a minute and 58 seconds left. The
inference arises in unmistakable terms, it seems to me, Mr.
Sampson, that when three months have--3 months have elapsed and
you're still on this use of the PATRIOT provision to circumvent
the Senate, that at least in your mind you must think it's
something that can be accomplished. Isn't that minimal?
Mr. Sampson. I made that recommendation to Harriet Miers in
September of 2006 on the theory that it would be more
efficient. With 2 years left in the President's term--
Senator Specter. Wait a minute. I know all that. My
question is, with your pursuing for some 3 months, doesn't it
raise the unmistakable inference that at least you thought the
White House would adopt your recommendation? You're not going
to maintain a recommendation over 3 months if you believe that
the White House Counsel or other equivalent authorities are
opposed to it, would you?
Mr. Sampson. I didn't maintain it over three months,
Senator. As shown in the U.S.A. Replacement Plan that I
drafted, which showed that with regard to the U.S. Attorneys
who would be asked to resign, that the plan, that the process
would be to go to the regular process to seek input from
Senators, to generate names that might be considered for
nomination and confirmation.
Senator Specter. Well, you might have a collateral plan
which would take me more than 20 seconds to explore. But
staying on the documents, your e-mails which I've already
familiarized you with, let me repeat the question one more
time. You are working on it for 3 months. You have proposed, in
your September memo, ``utilizing the new statutory provision.''
Those are your words.
Then you come back to December the 19th, more than 3 months
later, and you are proposing, in bad faith, circumventing
Senate approval. Now, would you be doing something like that
if, in your own mind, you thought the White House would not
consider replacements using the PATRIOT Act provision?
Mr. Sampson. With--Senator, I--at the time that I drafted
that e-mail in December of 2006, December of last year, I did
not think the White House would consider doing that with regard
to 92 districts, which is why, in the U.S. Attorney Replacement
Plan I recommended, I drafted following the regular process.
Senator Specter. How about--how about--how about one
district? Ninety-two districts. You're leaving one out. There
are 93 districts.
Mr. Sampson. And that's the Eastern District of Arkansas.
And at that time--
Senator Specter. So would you--would you think the White
House would consider using the PATRIOT Act provision for that
one district, Arkansas?
Mr. Sampson. To the best of my recollection, in my
discussions at the staff level with folks at the White House, I
believe it was under a consideration then. But it was not
adopted by the principals. The Attorney General, after talking
with Senator Pryor, was unwilling to consider that.
Senator Specter. Well, but it was under consideration at
the White House?
Mr. Sampson. In conversations I had at the staff level we
discussed it.
Senator Specter. Did you ever talk to anybody higher than
staff level?
Mr. Sampson. I don't remember talking to Harriet Miers
about that notion anytime after the September e-mail.
Senator Specter. How often did you talk to Ms. Miers?
Mr. Sampson. Oh, I would guess, on average, you know, two
or three times a week.
Senator Specter. And had you discussed it with Attorney
General Gonzales in this 3-month interim?
Mr. Sampson. I don't remember specifically talking with him
about it. I know that in drafting the U.S. Attorney Replacement
Plan that I did, Step 5 was to follow the regular procedure and
consult with the Senate.
Senator Specter. Mr. Sampson, this is a pretty big point.
Although it was overlooked in the Senate, although it was in
the conference report for three months, this was something very
much on your mind, right? You can't deny that, it's right here
in the e-mails.
Mr. Sampson. After the Senate passed that provision, after
the Congress passed that provision, I was aware of it.
Senator Specter. Yes. Well, were you aware of it before
Congress passed the provision when the Department of Justice
urged its adoption?
Mr. Sampson. I don't remember being involved in that at
all.
Senator Specter. OK. But you were aware of it after it was
passed?
Mr. Sampson. I was.
Senator Specter. You saw the Attorney General on a daily
basis?
Mr. Sampson. Yes, I did.
Senator Specter. Multiple times a day?
Mr. Sampson. Yes, sir.
Senator Specter. Talking to him about--discussing with him
the plan to replace U.S. Attorneys?
Mr. Sampson. Yes. As I stated before, you know, I kept him
generally apprised of--
Senator Specter. OK. So you were discussing plans to
replace U.S. Attorneys, but you never talked to him about
utilizing the provisions of the PATRIOT Act to circumvent the
Senate?
Mr. Sampson. Oh, I think I did, but I don't think he ever
liked the idea very much.
Senator Specter. Well, did he say ``I don't like the
idea''? Did he say ``I reject the idea'' or did he just listen
to you and go off in another direction?
Mr. Sampson. I don't remember him specifically rejecting
the idea until after he spoke with Senator Pryor in mid-
December. And I don't remember him specifically rejecting the
idea until sometime in January.
Senator Specter. So that he was still considering the idea.
He rejected it sometime in January. Still considering it in
December. Then we have these e-mails, where it's still very
much on your mind, and as you say, to circumvent the Senate,
and what you concede is in bad faith, and it is being
considered at least for one U.S. Attorney, and you don't have
any recollection of Ms. Miers, or the Attorney General, or
anyone of that level of authority rejecting the idea?
Mr. Sampson. I remember the Attorney General rejecting the
idea.
Senator Specter. But not in December. You said in January.
Mr. Sampson. I remember him rejecting it soon after he had
a conversation with Senator Pryor.
Senator Specter. Well, you just--well, you just----
Mr. Sampson. Let me just say--
Senator Specter. You just said he rejected it in January,
didn't you?
Mr. Sampson. I remember that he spoke with Senator Pryor.
Senator Specter. Now, wait a minute. I'm asking you, didn't
you just say he rejected it in January?
Mr. Sampson. Senator, I'm not sure whether he rejected it
in late December or in early January. I don't know.
Senator Specter. Well, did he--did he reject it after the
December 19th e-mail, which is the critical day? That would be
late December if he rejected it after that e-mail.
Mr. Sampson. I believe he did reject it after that e-mail.
I must say, I don't recall specifically, but I don't think the
Attorney General ever liked the idea. He thought it was a bad
idea, and he was right.
Senator Specter. Well, we've gone round and round on that
and you don't have any recollection as to his specifically
rejecting it. There are no e-mails on it and it has become a
matter of some concern as to how the PATRIOT Act was used to
get this provision in, which circumvents the Senate, and then
how it was actively used, at a minimum, in one district and
without a rejection, and apparently under consideration by the
White House. How far up we do not know, and it was not rejected
by the Attorney General until you've had this exchange of e-
mails.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
I've been flexible on the time in the second--second round.
Whether this provision in the Patriot Act was a good idea or
not, Mr. Sampson, as you can imagine, it had one--one effect:
it brought about bipartisan unity in the House and Senate.
We rejected it 94 to 2 here in the Senate, even though
originally we'd heard from the White House that they opposed
that. And then I forgot what the vote was in the House, but it
was 4 or 5:1. And these days it's kind of hard to get that kind
of unanimity. We usually can't even get it on a motion to
adjourn. But on this, I think Senators, once they had a chance
to watch how it was used, how everybody used it, they wanted to
put it back the way it was.
Senator Schumer, again, the chair of the appropriate
subcommittee, I yield to you.
Senator Schumer. Thank you, Mr. Chairman. I'm glad we're
back and the move to not let us continue has been withdrawn.
I'd like to, first, follow on a question that Senator
Durbin touched on, and that is, as you told him, your original
suggestion was that Mr. Fitzgerald, U.S. Attorney from
Chicago--I guess that's the Northern District of Illinois--
should be fired. Now, that was in 2005, you suggested that?
Mr. Sampson. I believe it was in 2006, but I don't remember
specifically. And as I said to Senator Durbin, it was a piece
of bad judgment on my behalf to even raise it. I regret it.
Senator Schumer. And you realize that if he were fired as
U.S. Attorney, the general consensus is, he couldn't continue
as Special Prosecutor.
Mr. Sampson. I don't know that as a matter of law, but I'm
not sure.
Senator Schumer. That is what--I've inquired in a number of
places about that issue, and that's what most people think.
Now, it's a little--it's a little confounding to hear that
you suggested that. And as I said, I respect your coming here
and coming here voluntarily, but it's really a harebrained
scheme that would have just blown up even more than the firing
of the U.S. Attorneys has in the administration's face. I guess
you see that now.
Mr. Sampson. Frankly, Senator, I saw that the second the
words crossed my lips.
Senator Schumer. Who did you suggest it to?
Mr. Sampson. Harriet Miers and Bill Kelley.
Senator Schumer. OK.
Anyone else?
Mr. Sampson. No.
Senator Schumer. And despite that they kept you in charge
or put you--did Attorney General Gonzales ever know that you
suggested that?
Mr. Sampson. No, I don't think so.
Senator Schumer. OK.
Did Harriet Miers remain comfortable with your supervising
the firing of U.S. Attorneys after you made such a suggestion?
Mr. Sampson. I don't know.
Senator Schumer. Did anyone suggest that, maybe after that
suggestion, you shouldn't be in charge of firing U.S.
Attorneys?
Mr. Sampson. I don't remember anyone raising that.
Senator Schumer. Yeah. Because I have to tell you, and it
relates to the issue we're talking about, here is the man doing
an investigation, Karl Rove had been before the grand jury, I
guess, the previous--in October of 2004. This is a major
investigation and you're suggesting that the chief prosecutor
be fired.
It leads me to think--first, it makes you think well, if
it's OK to fire Fitzgerald, who's in the middle of a major
investigation, maybe it's OK to fire some of these others. But,
second, it does make me question your suitability for this job.
Is that an absurd conclusion?
Mr. Sampson. As I stated previously, Senator, it was a
lapse and I regretted it the moment I said it. And to my
recollection, I even said ``I withdraw that, that was
inappropriate''.
Senator Schumer. Would the same thought process that made
you realize suggesting firing Fitzgerald maybe come to you with
the firing of others, for whatever reason, who were doing other
investigations, such as Carol Lam in San Diego?
Mr. Sampson. During this process I never associated asking
these U.S. Attorneys to resign with a particular investigation
or prosecution that they were handling.
Senator Schumer. And I take it--
Mr. Sampson. To the best of my recollection, I--I never
associated those things in my mind.
Senator Schumer. And it takes--
Mr. Sampson. I was aggregating information from different
people at the Department, but in my own mind I--that would be
inappropriate.
Senator Schumer. Right.
Mr. Sampson. Public corruption cases are important to the
Department, and didn't spare Republicans. That would be wrong.
I don't remember ever associating those things in my mind.
Senator Schumer. I understand that. You've said that
before. But didn't you realize when you suggested, even the
thought of suggesting Fitzgerald be fired, that it would at
least be perceived as trying to stop a major investigation?
That's sort of plain as the nose on one's face.
Mr. Sampson. I don't know what else to say, Senator. I've
expressed my regret for that.
Senator Schumer. OK. All right.
Let me just followup on something that Senator Kennedy
questioned you about as well. I have a bunch of my own
questions which we'll have, I guess, the rest of the afternoon
for. But I want to do some followups here while what you said
is fresh in your mind.
You told Senator Kennedy that you wrote that Griffin's
appointment was ``important to Karl,'' meaning Rove, and you
based that on an assumption. That's your words, assumption, to
Senator Kennedy. Well, you're an intelligent man. What was the
assumption based on? Any conversations with Rove? You said no
already to Senator Kennedy. Conversations--let me ask you,
could it be based on conversations with Scott Jennings?
Mr. Sampson. Yes. I believe the--I knew that Sarah Taylor
and Scott Jennings were interested in Tim Griffin having the
opportunity to serve as a U.S. Attorney. And when I wrote that
e-mail in December, I assumed, because Sarah Taylor and Scott
Jennings report to Karl Rove, that it was important to Karl.
Senator Schumer. Right. But then you would still--I just
want to get the exact words here. You would still draft a memo
that ``I am not aware of Karl Rove playing any role in the
Attorney General's decision to appoint Griffin to seem
contradictory.'' I guess you can sort of parse the words very
parsimoniously, I suppose, but the two do seem in
contradiction, don't they?
Mr. Sampson. When I drafted the letter, which I think was
in February of 2007, I remember thinking to myself, am I aware
that Karl Rove is interested in Tim Griffin being appointed?
And as I drafted that letter, I thought to myself, I'm not
aware that Mr. Rove is interested in Mr. Griffin being
appointed. For all I know, based on what I remember, I'm not
even sure he does support it. I knew that his people that
worked for him were interested in that happening.
Senator Schumer. Well, wait a second.
Mr. Sampson. But I wasn't sure and I--and I drafted the
letter that way. In addition, I was focused on the Attorney
General's appointment of Mr. Griffin to serve as the interim,
which I knew the Attorney General--which decision the Attorney
General made independently in mid-December after talking to
Senator Pryor, and so I drafted the letter that way.
Then I circulated it widely to make sure that others
thought it was accurate. And as I sit here today, I think it's
accurate based on what I remember, though I can't be 100
percent sure.
Senator Schumer. OK. So in other words, at one point you
write that Griffin's appointment was ``important to Karl''.
Later you write, ``I am not aware of Karl Rove playing any role
in the Attorney General's decision to appoint Griffin.''
I think, and this is not jumping to any conclusion by any
stretch, that most people, if they saw that, would say there's
a contradiction there, that the second letter doesn't bear out
the first e-mail.
And even assuming that you based your assumption on
conversations with Scott Jennings, you were basing the
assumption not on what Scott Jennings thought, but what Karl
thought. That's what the first e-mail said, ``it's important to
Karl''.
And so then to later say he didn't play any role, the very
fact that you imputed--you decided to go along or to appoint
Griffin. You imputed the Scott Jennings conversation to mean
that Karl thought it was important, and then later say Karl
played no role in it, it seems directly contradictory.
I'm not the only one who thinks so, because there's the--
sort of the--well, would you explain that for a minute? How--
how can the two not be contradictory? Scott Jennings. You say,
that means to me, ``it's important to Karl'', and then you say,
Karl had no--Karl had--did not play any role.
Mr. Sampson. Senator, I don't really have anything to add
to my--to my previous answer to that.
Senator Schumer. Well, I will say this, and I think this is
in the record--if not, I'd ask unanimous consent--the letter of
March 28 from the Department of Justice to Senator Leahy and
myself in reference to the letter that Senators Reid, Durbin,
Murray and I wrote you.
They think it's contradictory because they write, ``on
review, it appears that certain statements in the February 23rd
letter are contradicted by Department documents included in our
production in connection with the committee's review of the
resignations of U.S. Attorneys. We sincerely regret any
inaccuracy.''
Seems pretty clear that the Justice Department itself--
letter signed by Richard Hurtling, the Acting Assistant
Attorney General, feels that there was an inaccuracy, an
inconsistency, a contradiction, don't they?
Mr. Sampson. I really--
Senator Schumer. Well, doesn't the letter say that?
Mr. Sampson. I haven't seen the letter, Senator, and I
wouldn't want to comment on a letter from the Justice
Department. I don't work at the Justice Department.
Senator Schumer. Well, I'll let the--I'll let the public
and the rest of the Committee and the other members of the
Senate decide. I just want to reiterate the words.
Chairman Leahy. The letter will be put in the record.
Senator Schumer. Thank you, Mr. Chairman.
``On review, it appears that certain statements in the
February 23rd letter are contradicted,'' their words, not mine,
``by Department documents included in our production in
connection with the committee's review. We sincerely regret any
inaccuracy.'' It seems that something isn't right.
Let me just ask you one other thing. Did Karl Rove have
anything to do with your suggestion that Fitzgerald be fired?
Mr. Sampson. I don't remember. I don't remember anything
like that. I don't think so. I don't remember--
Senator Schumer. Can you sort of search your memory and be
sure of that?
Mr. Sampson. I don't remember ever speaking--I don't--
Senator, I just want to answer to the best of my recollection.
I don't remember ever speaking to Karl Rove about anything
related to Patrick Fitzgerald.
Senator Schumer. How about to any of his people who worked
in his office or worked for him?
Mr. Sampson. I don't remember any such conversation.
Senator Schumer. OK. Is it possible? Because you're not
ruling it out.
Mr. Sampson. To the best of my recollection, no, I don't
remember that.
Senator Schumer. Well, ``I don't remember it'' or ``it's
not possible''?
Mr. Sampson. I don't think it happened.
Senator Schumer. You don't think it happened would mean
there's a chance that it's possible. Correct?
Mr. Sampson. Senator, I don't think it happened. I don't
remember any such conversation.
Senator Schumer. OK. But you're not willing to say,
unequivocally not.
Mr. Sampson. I don't remember any such conversation.
Senator Schumer. Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Senator Hatch?
Senator Hatch. Well, I was certainly interested in those
questions and your response as well, because I don't know how
you can be any more forthcoming than you were.
Now, this claim that Carol Lam was removed because of her
prosecution of Republicans has been repeated so many times that
it seems to have taken on a life of its own. I ran into it just
yesterday when I was on a panel with a member of the House in
front of 400 editors in this country.
And since there has never been any evidence for this claim,
maybe those making it think that repetition, rather than proof,
will just make it so. Now, thank goodness prosecutors cannot
get away with just telling stories without any real evidence.
Because that claim has been repeated so often, let me just
ask you one more time, yes or no, did the Cunningham public
corruption case or any other Member of Congress who might have
been accused have anything whatever to do with recommending
Carol Lam's removal?
Mr. Sampson. To my knowledge, it did not.
Senator Hatch. Another one of the former U.S. Attorneys,
David Iglesias of New Mexico, has done a lot of media
interviews since this flap has occurred and made some very
public and specific claims.
Now, since you were head of this project and know more than
anyone why he and others were asked to resign, I would like
your response to the following. He told Tim Russert that he
absolutely believes he was removed from what he called
``political reasons''. He was on Chris Wallace's program and
said, ``Performance has nothing to do with this. This is a
political hit.''
He wrote an op-ed in the New York Times in which he said he
was fired for ``not being political'' and that this group of
U.S. Attorneys ``had apparently been singled out for political
reasons.''
Now, accusations and rhetoric like this are precisely why I
think it's so important to clarify the standards the
administration used in making their decisions in these matters.
You were in charge of this project. You know better than anyone
else the reasons why these U.S. Attorneys were recommended for
removal. So let me just ask you directly, was the decision to--
regarding Mr. Iglesias, was it a political hit?
Mr. Sampson. Not to my knowledge, Senator. I was not--I
aggregated information from other people and--and I was not
aware of Mr. Iglesias. I don't remember anyone. To my
knowledge, it was nothing of the sort.
Senator Hatch. Was Mr. Iglesias removed because he refused
to be political?
Mr. Sampson. Senator, as I said in my opening statement,
the political- and performance-related distinction is sort of
an artificial distinction in my mind based on the criteria that
we use to look at candidates who--U.S. Attorneys who might be
considered for replacement.
Senator Hatch. Were these--were these U.S. Attorneys
singled out for political reasons?
Mr. Sampson. To my knowledge, they were singled out because
they--because issues and concerns had been raised about them.
Some of those things might be considered political, such as a
failure to carry out the President's priorities.
Senator Hatch. Sure.
Mr. Sampson. But I'm not aware, and I wasn't aware, and I
don't remember ever hearing that a factor for David Iglesias or
any of the other U.S. Attorneys was that there needed to be an
effort to influence a particular case for political reasons.
Senator Hatch. Was he asked to resign because of
performance?
Mr. Sampson. Yes.
Senator Hatch. OK. As you know, the documents we received,
including e-mail's--and by performance you mean the broad
definition of performance, not the narrow one that some of our
friends on the other side would like to have.
Mr. Sampson. Yes. Thank you for that correction.
Senator Hatch. And by ``political'' you mean the narrow
reasons, from political, which our friends on the other side
broaden greatly, the narrow reasons of interfering with an
ongoing investigation or ongoing criminal trial.
Mr. Sampson. To my--
Senator Hatch. Is that a fair statement?
Mr. Sampson. I think so. To my knowledge, based on
everything I observed and heard, Mr. Iglesias was not added to
the list and asked to resign in an effort to influence a case
for political reasons.
Senator Hatch. Well, let me make that even more clear. As
you know, the documents we received included e-mails, which are
conversations, which Mr. Iglesias asked if both Attorney
General Gonzales and Deputy Attorney General McNulty would be
referenced for future employment. They both agreed they would
be references for him, even after this. Right?
Mr. Sampson. They did.
Senator Hatch. Yes or no?
Mr. Sampson. Yes.
Senator Hatch. Mr. Iglesias has now said in numerous media
interviews, this was actually not an honest, straightforward
request, but a little test. He says that there's simply no way
they would agree to be a reference if he had actually been
asked to resign for performance-related reasons.
The fact that they did agree to be references proves, as he
put it in one interview, ``that the true nature was political,
not performance.''
Now, you've already said that this category of performance
was very broad and included more than competence or statistical
measures, but such things as priorities, management, policy, et
cetera.
Now, you were the Attorney General's Chief of Staff. Does
the fact that he agreed to be a reference for Mr. Iglesias in
any way prove that this was all about politics and not about
performance?
Mr. Sampson. Senator, if I could say two things to that.
The first, is that I think David Iglesias is a fine man and a
skilled lawyer. And when he asked if the Attorney General would
serve as a reference for him, I remember asking the Attorney
General if he had any problem with that, and he didn't, and I
didn't. And so I communicated back to Mr. Iglesias that the
Attorney General would agree to do that.
With regard to your earlier question about politics and
politics being involved, what I remember is that Mr. Iglesias
was added to the list late in the process after folks at the
Department went back and looked and asked the question,
should--are there any others that should be added? And four
close cases were added, including Mr. Iglesias.
Ultimately, three of those came off the list. And I recall,
in conversation as we were finalizing the list, I remember
asking what folks thought about keeping Mr. Iglesias on the
list. I remember the Deputy Attorney General mentioning that
that wouldn't create any problems with the home State Senators
because he knew that Senator Domenici was not pleased with Mr.
Iglesias' performance.
Senator Hatch. OK.
Mr. Sampson. So there was that--you know, that was
considered in keeping Mr. Iglesias on the list.
Senator Hatch. Well, I would like to clarify something that
was raised this morning regarding Monica Goodling, Counsel to
the Attorney General, who--who has said that she will assert
her constitutional right against self-incrimination.
Now, this morning one of my Democratic colleagues said that
a jury in a civil case may draw a negative inference from
someone asserting the Fifth Amendment right, but in response to
Mrs.--Ms. Goodling's assertion, the Chairman issued a statement
acknowledged that--acknowledging ``that everybody has the
constitutional right not to incriminate themselves with regard
to a criminal conduct.
The American people are left to wonder what conduct is at
the base of Ms. Goodling's concern if she may incriminate
herself in connection with criminal charges if she appears
before the Committee under oath.'' The Supreme Court has said
over and over that no negative inference may be drawn.
In Griffin v. California, the court held that the Fifth
Amendment quote for bids, either comment by the prosecution on
the accused's silence or instructions by the court and such
silence--that such silence is evidence of guilt.''
Not only that, but if I'm not mistaken, a Federal
prosecutor who makes such a comment would not only provide
grounds for a mistrial, but might even be subject to
investigation by the Office of Professional Responsibility
within the Department of Justice.
Now, I'd like to read a portion of the editorial titled
``Political Spectacle'' from the Washington Post of March 22nd
and ask if you think this is a reasonable or accurate
description of the situation.
Mr. Chairman, I do ask consent to place this editorial
titled ``Political Spectacle'' in the record.
Senator Schumer. Without objection.
Senator Hatch. Mr. Sampson, do you think that this is a
reasonable or accurate description of the situation, that the
President has the authority to remove U.S. Attorneys to make
room for others to serve or because they were not pursuing the
right priorities with sufficient vigor, that there is no
evidence of anything nefarious in the dismissal process and no
evidence that the administration is trying to short-circuit
prosecutions? That is the conclusion of the Washington Post--of
the Washington Post, and I'm wondering if you think, in your
perspective, they got it right.
Mr. Sampson. Well, in my opinion, based on the information
that I know and remember, I think that's fair.
Senator Hatch. All right.
Senator Schumer. Thank you.
Senator Hatch. Mr. Chairman, could I ask one other
question?
Senator Schumer. Please. You're a little bit over, but not
too bad.
Senator Hatch. I understand.
Our committee's Ranking Republican, Senator Specter, was on
Chris Wallace's show on the Fox News channel about 10 days ago.
And he said in his practical, common sense way, that the
question is not whether the President had the authority to
remove U.S. Attorneys, but whether he did it for ``a bad
reason''. Senator Specter gave us an example, removing a U.S.
Attorney for not responding to pressure to prosecute or
pressure to not prosecute.
Now, once again, you were in charge of this project. You
were in charge of the evaluation and recommendation process.
Were any of the U.S. Attorneys asked to resign for such a bad
reason, that they would not give in to pressure to prosecute or
not prosecute a particular case?
Mr. Sampson. Based on what I observed and heard, that was
not the case.
Senator Hatch. OK.
Senator Schumer. Thank you.
Senator Hatch. Can I clear up the one PATRIOT Act thing to
the extent that I can?
Senator Schumer. OK. You have to go after this.
Senator Hatch. I appreciate you granting that.
Senator Schumer. Senator Hatch has one more question.
Senator Hatch. OK.
As you probably know, lots of claims have been flying
around about a grand scheme in which the Justice Department
sought to change the procedure in the PATRIOT Act for
appointing interim U.S. Attorneys, and then outed U.S.
Attorneys, so their replacement could serve indefinitely
without Senate confirmation. That's something that bothers all
of us up here, if that were true. Now, that's the story, as
best I can recall it.
In your statement, you indicate that the decision to begin
evaluating U.S. Attorneys for possible replacement was made at
the end of 2004. Is that correct? '
Mr. Sampson. Yes, that's correct.
Senator Hatch. OK. Now, the documents we received from the
Justice Department indicate that he discussion of policy
reasons to change the procedure for appointing interim U.S.
Attorneys began at least as early as July, 2003. Is that
correct?
Mr. Sampson. I don't remember that.
Senator Hatch. OK.
Mr. Sampson. I don't know.
Senator Hatch. We also--well, that's what--that's what the
documents we received say. We also know that the Justice
Department did not ask that this change be made in the Patriot
Act until late 2005, long after you began the process of
reviewing ongoing U.S. Attorneys.
Now, was your project for evaluating U.S. Attorneys and
recommending some for replacement motivated in any way by an
initiative to change the procedure for replacing interim U.S.
Attorneys?
Mr. Sampson. I think the initiative behind seeking that
change, that amendment that was included in the PATRIOT Act,
was an incident that occurred in December of 2005 with the U.S.
Attorney appointment in the District of South Dakota.
Senator Hatch. Right.
Mr. Sampson. And there was, you know, a conflict there with
the--with the district judge, who wanted to appoint a U.S.
Attorney from outside the office who had not had a background
check and was not authorized to see sensitive law enforcement
information.
And I don't remember all the details of that, but my
recollection is that that was the impetus to seek the amendment
that ultimately was included in the Patriot Act conference. I
really wasn't involved in that, though.
Senator Hatch. All right. Thank you.
Thank you, Mr. Chairman.
Senator Schumer. Thank you, Senator Hatch. And we're going
to go in the order that we did the first time around, so
Senator Feinstein is next.
Senator Feinstein. Thank you, Mr. Chairman.
Mr. Sampson, who decided on who would be added to the
termination list?
Mr. Sampson. I was the keeper of the list and so--
Senator Feinstein. That's not my--I know that. That's not
my question. Who made the decision who would be added to that
list?
Mr. Sampson. It was based on an aggregation of input that
came in to me, and then I added people to the list. And in--
Senator Feinstein. So you made the decision of who would go
on the list?
Mr. Sampson. In the--before the final decision was made by
the Attorney General, I was the person who kept the list, and
as information came in, I added people to the list based on the
input of others.
Senator Feinstein. You made a list. You aggregated a list
and you took it to the Attorney General. Is that correct?
Mr. Sampson. Ultimately, in the fall of 2006, he approved
the final list.
Senator Feinstein. And when did he--when, exactly? Was that
at the meeting 10 days before December 7th?
Mr. Sampson. I don't remember specifically. I think it was
before that. But it was--
Senator Feinstein. How did it go to the Attorney General,
in what form?
Mr. Sampson. I believe it was, you know, done on an oral
basis but I don't recall specifically.
Senator Feinstein. And you told him who was on the list?
Mr. Sampson. I don't remember specifically. I might have
shown him the list, I might have told him--I remember him
directing me to make sure that there was a good process, that I
had consulted with the Deputy Attorney General and others who
would have reason to make an informed judgment about the U.S.
Attorneys, and I assured him that I did, and would.
Senator Feinstein. All right.
Now, on November 21st you sent an e-mail entitled,
``Meeting for next Monday regarding U.S. Attorney appointments,
AG, me,'' meaning you, ``Monica, Deputy Attorney General,
Moschella, Elston, Battle, 1 hour, AG's conference room.'' Do
you recall that e-mail?
Mr. Sampson. I--I reviewed that e-mail in preparation for
this hearing, and so I remember it now.
Senator Feinstein. And you were present at that meeting
that took place on the 27th?
Mr. Sampson. Yes.
Senator Feinstein. And what took place at that meeting?
Mr. Sampson. I believe, to the best of my recollection, we
discussed where things stood. I reported that I had been--I had
coordinated with the White House and they were--that I'd asked
them to make sure they touched all the bases that were
relevant.
Senator Feinstein. Had they signed off on the list of
attorneys?
Mr. Sampson. I just don't remember the time line exactly,
Senator.
Senator Feinstein. Well, either the White House signed off
on it at that point or did not.
Mr. Sampson. My recollection--
Senator Feinstein. Did the White House sign off on the list
before that meeting on the 27th?
Mr. Sampson. What I remember, is that the White House
really didn't--I don't remember receiving input during this
time period from the White House on who should be on the list
and who should be off. I remember--
Senator Feinstein. Well, that's not my question. You told
me you had aggregated a list that you had selected, you had put
together, and you took that list to the Attorney General and
the Attorney General approved the list.
I then asked you in what form, and you said, oh, by
conversation. So then I went to the meeting on the 27th and who
was present at the meeting, and you said, I believe--I can ask
the transcript be re-read--that the White House had approved
the list.
Mr. Sampson. I don't remember. I don't remember when the
Attorney General specifically signed off on the list or in the
idea of proceeding and moving forward, and I don't remember
specifically whether he made those approvals based entirely on
an oral presentation or on seeing the list.
I do remember that he was concerned about process. He
directed me to make sure that the senior leaders in the
Department all agreed that these were the people that should be
on the list. And that list--
Senator Feinstein. Well, wait 1 second. Someone takes
responsibility for this. This was not the usual order of
business. In the last 25 years, only two U.S. Attorneys have
been fired and they have never been fired in bulk to the tune
of seven on 1 day, that's for sure. So this was unusual.
You, yourself, in e-mails to others, said that it was
unusual. And you yourself pointed out the hazards. Someone
approved that list. And what I thought you told me was, the
Attorney General approved the list. Is that not correct?
Mr. Sampson. The Attorney General approved the list,
Senator. I just don't remember specifically in this time period
when he did that.
Senator Feinstein. All right. But at the meeting on the
27th, what--what business was conducted for one hour on these
appointments?
Mr. Sampson. I remember that I did have some concern about
making sure everyone understood what was--what we were talking
about doing here, what the recommendation was and what the
decision would be.
And I remember calling the meeting to make sure that the
Deputy Attorney General, the Attorney General, and the other
people that you listed all were in agreement about the list and
about going forward.
Senator Feinstein. Was there dissent in the room?
Mr. Sampson. I don't remember any dissent.
Senator Feinstein. So everyone was agreed to proceed. Was
the date that the calls would be made mentioned?
Mr. Sampson. I don't remember specifically if that was
discussed at the November 27th meeting, but I do remember
having conversations about that. If I may, Senator, one other
thing that I remember about the November 27th meeting.
I think, to the best of my recollection, is that after the
meeting, after the Attorney General left, I remember the Deputy
Attorney General calling me back, and I believe that it's then
that he suggested that Kevin Ryan needed to be added to the
list.
Senator Feinstein. All right. So you had a list. Leaving
that meeting, you had a list.
Mr. Sampson. Yeah.
Senator Feinstein. And I believe you sent an e-mail then
indicating who would call the Republican Senators. Only the
Republican Senators of the States concerned were to be advised.
None of the Democratic Senators of the States affected were to
be apprised of what the situation was. Is that correct?
Mr. Sampson. Senator, the--
Senator Feinstein. It is correct.
Mr. Sampson. Senator, it is correct. The view of the
assembled group was that Democratic Senators wouldn't have a
view about the notion of replacing one Republican appointee
with another Republican appointee. It was a lack of foresight.
In hindsight, we obviously should have thought of that. But
I remember, the discussion at the time was that we needed to
speak with the Republican home State Senators because it was
replacing--because the idea was to replace one Republican
appointee with another Republican appointee.
Senator Feinstein. But just as a courtesy, it wouldn't
occur to anybody to pick up the phone and call a Senator,
particularly in a State where you're replacing two U.S.
Attorneys from two of the largest cities in the State.
Mr. Sampson. In hindsight, Senator, we obviously should
have done that.
Senator Feinstein. OK.
There was a hiatus in e-mails from the 15th to the 27th.
It's my understanding that the President was traveling and that
the Justice Department was awaiting White House approval during
that period of time, that you'd asked for approval and that it
had not been forthcoming. Is that correct?
Mr. Sampson. To the best of my recollection, I think that's
what was going on. There was the Thanksgiving holiday during
that time as well.
Senator Feinstein. So the meeting on the 27th was following
Thanksgiving and I would assume that you had that approval at
that time to proceed.
Mr. Sampson. I don't remember. I believe--I remember that
there is a document that has been produced to the Senate that
shows the White House communicating back that we had the
approval to proceed, but I think that was later. I don't
remember here. I think that was maybe on December 4th.
Senator Feinstein. To the best of your recollection, who in
the White House would be responsible to sign off on this--this
effort?
Mr. Sampson. I don't know. I communicated that with Bill
Kelley, the Deputy Counsel to the President, and just suggested
to him that he, you know, let us--let us know.
Senator Feinstein. You weren't curious as to who would--who
would sign off on it?
Mr. Sampson. I thought perhaps it would be Harriet Miers,
the Counsel to the President, but I--but I wasn't sure, and I
don't know.
Senator Feinstein. OK. Is my time up?
Senator Schumer. More than. Two minutes. You're 2 minutes
over.
Senator Feinstein. I beg your pardon.
Senator Schumer. Do you want to ask one other?
Senator Feinstein. No. I beg--that's fine. I'll wait. Thank
you.
Senator Schumer. We don't have--I don't know why, but we
don't have too many of these and it flops around, so it's hard
to see.
Senator Feinstein. I don't--can't see. Thank you.
Senator Schumer. Senator Sessions?
Senator Sessions. Thank you.
Well, I think U.S. Attorney Whitehouse had some good
questions this morning--Senator, now. But I do think there was
some lack of comprehension on the part of the team around the
Attorney General and the Attorney General himself, who also
never had any experience in actually being a U.S. Attorney or
in the Department of Justice and understanding why these issues
are sensitive and difficult to do.
I suspect that anyone at the White House or the President
would think, of course I can replace a U.S. Attorney. I want to
get rid of a U.S. Attorney, I don't have to answer to Congress.
I can just replace them. And, technically, he can. But there's
more to it than that, as we've seen. So, that's part of it.
I also am troubled by a Department of Justice official
asserting that they can't tell the truth because it mind tend
to incriminate them. I know you can't say that in a trial. They
used to. You would call the witness on the stand and make them
take the Fifth in front of the jury, and they've all said you
can't do that any more.
But my recollection, Senator Whitehouse, is that a police
officer who takes the Fifth is off the force, or at least off
the streets. Did I read that this individual that took the
Fifth is on administrative leave now? Did I see that in the
paper?
Mr. Sampson. Senator, I don't--I've been gone from the
Department for a couple of weeks now.
Senator Sessions. Well, I think I may have seen that. That
probably is appropriate. I think that's what happens if you're
investigating a police officer and they take the Fifth. So
these are matters that have cast a cloud over the Department,
and it's very sad.
I don't think that we have people here with a kind of
malicious intent to do wrong that has been suggested. I reject
that. But a series of misjudgments in overreaching and pushing
harder than should be, perhaps, or something has resulted in a
situation that's not healthy.
Again, I just was noticing this e-mail from Colin Newman,
the White House counsel--I guess Harriet Miers is shot--said to
David Leech, January 1905--this is when you really should have
been talking about who's going to be replaced. This is early in
the second term.
``Karl Rove stopped by to ask you,'' talking about David
Leech, ``roughly asked how we planned to proceed regarding U.S.
Attorneys, whether we're going to allow all to stay, request
resignations from all and accept only some of them, or
selectively replace them, et cetera.''
Now, that doesn't indicate to me he was trying to dictate
to the Department of Justice how the U.S. Attorneys should be
handled, does it to you?
Mr. Sampson. I remember it coming in as a question, as an
inquiry.
Senator Sessions. Now, Carol--on the question of Carol Lam,
I want to be clear about this. She seemed to be a very
impressive U.S. Attorney and very capable lawyer. But it does
appear to me her priorities were not the priorities of the
Department of Justice.
And my impression, when I was U.S. Attorney, was there was
always quite a few out there that thought they knew better than
everybody else what they wanted to do in their district.
Sometimes they were right, sometimes they weren't right.
I've often thought they were given too much rein. I mean,
these people are given money from the taxpayers of America to
execute policies and they're not accountable to anybody,
really, but the President. And they have to be held to account
to utilize that money consistent with legitimate policies that
the President has promised in his campaign, or the people want.
Her prosecutions in 2004 over immigration cases--and these
were serious immigration cases, not just border crossings.
These were people who were involved in smuggling and things of
that nature--feel from 2,054 to 1,453, and that's more than a
quarter, more than 25 percent.
Her prosecutions for firearms offenses are just stunning to
me: 2002, 24, 2003, 17, 2004, 18, 2005, 12, 2006, 17. Southern
District of Texas was averaging, at that time, let's see, about
200 a year. The Southern District of New Mexico, over 100 a
year. The Southern District of Arizona, almost 200 a year.
So it seems to me that Operation Safe Neighborhoods, which
emphasized, from the President on down, it was a clear priority
of Department of Justice, was not being effectively carried out
in the Southern District of California, which I'm not surprised
that the Senator wrote a letter--Senator Feinstein wrote a
letter asking about some of these things, an inquiry.
Other Congressmen wrote letters about this. Not that she
wasn't a good person or an honorable person, but her priorities
weren't what other people thought they should be. Why did you
all write a letter to defend her?
Mr. Sampson. I don't remember, Senator.
Senator Sessions. And who wrote it?
Mr. Sampson. I remember concern being expressed about that
office along the lines of what you've set forth with regard to
gun prosecutions and border enforcement. And I don't remember
specifically, that letter, in response. I believe that there
were some incoming letters from Members of Congress and a
response was prepared that did its best to defend the work of
the Department.
Senator Sessions. Well, I think that's a typical reaction
of the Department of Justice, to defend itself against
criticism when perhaps you should examine the validity of the
criticism. It sounds to me like it was fairly legitimate.
Now, I was curious about this e-mail on February 7th of
this year from Brian Roehrkasse to Kyle Sampson. The Morning
Clips. The subject is ``The Morning Clips''. He read the
newspaper that morning, got the summary newspaper.
``The Attorney General is upset with stories on the U.S.
Attorneys this morning. He thought some of the DAG's statements
were inaccurate.'' The Deputy Attorney General.
What did he think was inaccurate about that?
Mr. Sampson. It would be helpful to me if I could see a
copy of that e-mail, Senator. I apologize.
Senator Sessions. That's all it said. Well, it was from
Brian to you and Tasia Scolionas, dated February 7th.
Mr. Sampson. To the best of my recollection, the Attorney
General was traveling overseas and Brian Roehrkasse was a
deputy in the Office of Public Affairs who was traveling with
him. And the Attorney General had been out of the office for a
week and was learning for the first time in the newspaper clips
about the Deputy Attorney General's testimony.
Senator Sessions. Was it the question that he had stated
that all had been terminated for office procedures or was it a
question--was that the question, he thought all were, and
Deputy Attorney General McNulty, apparently telling the truth,
said that really there wasn't performance problems with Mr.
Cummins in Arkansas, it was just that they wanted to make a
change.
Mr. Sampson. What I remember is that, prior to the Deputy
Attorney General's testimony, the position of the Department
was that there would be no public discussion about the reasons
that the U.S. Attorneys were asked to resign. And I think
because the Attorney General was traveling overseas, he was
caught by surprise that the Deputy Attorney General, in his
testimony, had said ``performance related reasons''.
Senator Sessions. My time is up, Mr. Chairman. I'm sorry.
Senator Schumer. Thank you, Senator Sessions.
Senator Cardin?
Senator Cardin. Thank you.
Who added David Iglesias to the list?
Mr. Sampson. I'm sorry, Senator?
Senator Cardin. Who was responsible for your consideration
of David Iglesias to be added to the list?
Mr. Sampson. What I remember, is that sometime after
October 17th the--an effort was made to go back and look at the
list of U.S. Attorneys whose 4-year terms had expired.
Senator Cardin. Effort made by whom?
Mr. Sampson. An effort made by myself, the Deputy Attorney
General, his Chief of Staff, Monica Goodling, perhaps others
who were in this group.
Senator Cardin. Four additional names came forward?
Mr. Sampson. Including Iglesias.
Senator Cardin. And one went beyond that.
Mr. Sampson. Ultimately--
Senator Cardin. Who suggested that David Iglesias remain on
the list that would be ultimately recommended for termination?
Mr. Sampson. I don't--what I remember, Senator, is that the
discussion was, should each of these four stay on the list, and
for various reasons the other three came off. And in discussing
Iglesias, all I remember is the Deputy Attorney General saying
Senator Domenici won't mind if he stays on the list. Senator
Domenici's dissatisfied with him.
Senator Cardin. And the four that were selected. How did
you come up with those four? Did you just go to your--your
master list that was in your drawer and circle four names? How
did you come up with these four being the next to be
considered?
Mr. Sampson. I think they were all close cases. They were
sort of--
Senator Cardin. Close cases because of performance?
Mr. Sampson. Because there weren't specific policy
conflicts or significant management challenges. They were close
cases because they were four U.S. Attorneys where the
aggregation of information coming in was, we can do better
here, a change would be beneficial.
Senator Cardin. And Mr. Iglesias remained on the list
because you felt that the Senator would not object?
Mr. Sampson. He remained on the list because nobody
suggested that he come off.
Senator Cardin. Who suggested that--what--who were--who was
there really promoting that he remain on the list in your--
among your group?
Mr. Sampson. I don't remember anyone promoting that he
remain on the list. The default was sort of the opposite, that
he was a close case, along with the other four, and that's how
he came on the list. And then the question was, who of these
should stay on the list? The effort was to winnow the list to
the smallest amount where everyone, in a consensus fashion,
agreed.
Senator Cardin. You've indicated that when the
recommendations were made to the Attorney General, that there
was an additional name that was added after the meeting.
How many of the recommendations you made were turned down
by the Attorney General?
Mr. Sampson. I don't remember any of them being turned down
by the Attorney General.
Senator Cardin. Were there additional names that you wanted
included on the list that did not get suggested by the Attorney
General?
Mr. Sampson. I don't remember the Attorney General
suggesting names to go on or to come off.
Senator Cardin. Did you--did you want additional U.S.
Attorneys asked to resign that were not ultimately asked to
resign?
Mr. Sampson. The way the process worked, is that if any one
of those people involved in developing the list, the Deputy
Attorney General--
Senator Cardin. Were you responsible for the list going to
the Attorney General?
Mr. Sampson. Yes, I believe I was.
Senator Cardin. Was there any names that you wanted on that
list that didn't get on? Were there any names that were on
that--that you wanted on that list that didn't get on that
list?
Mr. Sampson. It just wasn't like that. It wasn't that I
wanted names on the list. I was the aggregator of information
that came in from a variety of sources.
Senator Cardin. And other than--
Mr. Sampson. I don't remember any one specific U.S.
Attorney being on the list because I personally thought they
should be on the list.
Senator Cardin. Let me try to go through this because I'm
having a hard time following the sensitivity to the point that
you bring up over and over again when asked by Senator Hatch
whether you believe there was any information that these
requests had any impact on pending investigations or decision
not to investigate. And you said, to the best of your
knowledge, you didn't believe that was the case.
Now, you also acknowledged that there were political
considerations, political considerations meaning support within
the district of the U.S. Attorney. So, there were political
considerations.
You also acknowledged that there were sensitive political
corruption cases in these jurisdictions. In one case, it was
being expanded, which the Republicans weren't happy about. In
another case, there were prosecutions not brought that the
Republicans were unhappy about.
Now, you acknowledged in Chicago the insensitivity of your
comment. Didn't any red flag go off in your mind that maybe
there is an inappropriate political circumstances that's being
in your equation that at least should be investigated a little
bit before you take the responsibility to recommend to the
Attorney General the dismissal of a U.S. Attorney?
Mr. Sampson. In my mind, Senator, I did not make that
connection. It was a lack of foresight. I was gathering
information from people who had served as U.S. Attorney, from
people who were senior officials in the Department, and--but
all I can say is what I remember and what I know, and I think
that I failed to consider that sensitivity of that perception
as I--as I told you before.
Senator Cardin. Well--and now we've talked about the
Chicago circumstance, which--I'm just concerned that you put in
your statement that the limited category of improper reasons
includes an effort to interfere with--interfere with or
influence the investigation or prosecution of a particular case
for political or partisan advantage. That's in your statement.
That's in your written statement.
Mr. Sampson. I agree with that.
Senator Cardin. What safeguards did you have in the process
to make sure that wasn't being done?
Mr. Sampson. Senator, as I testified to you before, I don't
feel like I had any safeguards in that process. I was the
aggregator of information. I wish that I would have thought of
that eventuality. I wish that someone else in the process would
have thought of that eventuality. I failed to do that and
that's one of the reasons I resigned.
Senator Cardin. Well, I appreciate your frankness in that
regard. I just find it very difficult to understand that you
understand that it would be inappropriate to dismiss a U.S.
Attorney for that reason, and yet you are acknowledging to us
there is at least information that has been presented that
would raise that issue.
And were there discussions among the senior advisors when
you were discussing this as to whether there was any impact on
a pending investigation? Did that come up in your discussion?
Was there discussion about what was going on in California or
New Mexico?
Mr. Sampson. I don't remember any such discussion. To my
knowledge, that was never considered.
Senator Cardin. But you did consider the local political
issues in those jurisdictions.
Mr. Sampson. To my knowledge, Senator, I personally didn't
consider that, but I generally--
Senator Cardin. I thought you told me earlier, to answer a
question, that you did, that that was one of the
considerations. You had gotten--when I asked you about the
local support with government, you said, yes, we had gotten
calls from Senators and we had gotten calls that people were
upset. I thought you were--you said you had that information.
Mr. Sampson. The Department had that information. Let me--
Senator Cardin. The Department means you. You were the
person who got all the information together.
Mr. Sampson. Others in the Department had that information
and I think I may have generally been aware of that
information. I don't remember whether, at the time, I
considered that information.
And as I said before, I don't remember ever hearing or
observing anything about--that connected the notion of asking a
U.S. Attorney to resign with influencing a particular case for
political reasons.
Senator Schumer. Senator?
Senator Cardin. I've been told, even though I have 7
minutes remaining, that my time really has expired.
Senator Schumer. I think this is your third seven minutes.
We will have a third round. Mine is going to be a little
longer.
Mr. Sampson. Mr. Chairman? Excuse me, Mr. Chairman.
Senator Schumer. Would you like to take a break?
Mr. Sampson. Would that be OK?
Senator Schumer. Could we just go through Mr. Whitehouse?
Because he's been waiting.
Senator Whitehouse. There's no need for that if you prefer
to take a break now.
Senator Schumer. Do you want to take the break now?
Mr. Sampson. If I could take a break, that would be good.
Senator Schumer. OK.
Mr. Sampson. Thank you.
Senator Schumer. We will resume at 4:10.
Mr. Sampson. Thank you.
[Whereupon, at 4:03 p.m. the hearing was recessed.]
AFTER RECESS
[4:14 p.m.]
Senator Schumer. OK. The hearing will resume.
Thank you, Mr. Sampson. I know it's a long day. We've a lot
of questions. But if we can get them all done today, we don't
have to do this again.
Senator Whitehouse?
Senator Whitehouse. Thank you, Mr. Chairman.
Mr. Sampson, wouldn't you agree that it's a little hard to
tell whether the U.S. Attorney has, in fact, rejected your
Patriot Act strategy when the ``pledge to desire a Senate-
confirmed U.S. Attorney'' is, in fact, a part of that gumming
to death strategy, and Tim Griffin is, in fact, still in place
in Arkansas?
Mr. Sampson. Senator, I think you'd have to ask the
Attorney General. What I believe, is that he decided that was a
bad idea and continued in conversations with Senator Pryor,
asked Senator Pryor if he would support Mr. Griffin for
nomination.
Senator Pryor said no, and Mr. Griffin was withdrawn. And
I've left the Department, but I understand and would hope that
they're working with Senator Pryor to get a Senate-confirmed--
Senator Whitehouse. But you--
Mr. Sampson.--a person selected who could be nominated and
confirmed.
Senator Whitehouse. But you do concede that pledging to
desire a Senate-confirmed U.S. Attorney was part of that gum to
death strategy?
Mr. Sampson. Senator, I think after I drafted that--I
believe you're referring to a December 19th e-mail.
Senator Whitehouse. Yes.
Mr. Sampson. After that, the Attorney General made a
decision--the Attorney General made a decision that the
administration would be committed to having a Senate-confirmed
U.S. Attorney in every Federal district.
Senator Whitehouse. Yeah. And my point is, that's exactly--
Mr. Sampson. And I understand that to be--
Senator Whitehouse.--consistent with pledging to desire a
Senate-confirmed U.S. Attorney, which is part of your strategy.
It's sort of a conundrum, isn't it?
Mr. Sampson. As I said, that was a bad idea from staff. It
was not adopted by the principals.
Senator Whitehouse. Let me ask a question that is very,
very important, to me, anyway. It has to do with the statement
in your testimony that the limited category of improper reasons
for removal of a U.S. Attorney includes an effort to interfere
with, or influence, the investigation or prosecution of a
particular case for political or partisan advantage.
Now, I think everybody in this room can agree that that
would be improper. But not only would that be improper, it
would be wildly improper and well beyond the boundary
distinguishing a proper from an improper reason. Wouldn't you
agree?
Mr. Sampson. I agree.
Senator Whitehouse. And, in fact, even if there were no
particular case involved, if you were removing a U.S. Attorney
simply because they didn't have the right sort of partisan tone
with no particular case in mind, wouldn't that injection of
partisan spirit into the office of the U.S. Attorney also be
improper?
Mr. Sampson. Senator, I don't--I don't know. I don't feel
comfortable commenting on the hypothetical that you pose. I
mean, I don't know. The former--the--what I set forth in my
opening statement as being improper, I believe, is improper.
Senator Whitehouse. But there's a lot more that's improper
than that. That's not the only thing that's improper in this
consideration, that you don't have to attach a particular U.S.
Attorney to a particular case, to a particular partisan bias,
before you have an impropriety in the administration of
justice, do you?
Mr. Sampson. I don't know, Senator.
Senator Whitehouse. You don't know?
Mr. Sampson. Senator, I'm not 100 percent clear about the--
about what you're getting at.
Senator Whitehouse. Well, let me leave this point with the
closing lines of Justice Jackson's speech when he was Attorney
General, who said, ``The citizens' safety lies in the
prosecutor who tempers zeal with human kindness, who seeks
truth and not victims, who serves the law and not factional
purposes, and who approaches this task with humility.''
I think any attempt to inject factional purposes is an
impropriety, and I would wish that you and the Department of
Justice would both agree with that.
My question earlier--it's been brought up since--with
respect to Monica Goodling, is that I'm a little surprised that
she's still there after having taken the Fifth. And I'm
concerned about the signal that's being sent out of the
Department. Let me give another example, because you were there
at the time. I know you haven't been there for this.
Michael Elston made a call to Bud Cummins, that Bud Cummins
described as having a threatening undercurrent to it. The
Department denied that the call took place. Before us, Bud
Cummins produced a contemporaneous e-mail that pretty well
confirmed that the call actually did take place.
And when I pressed the matter a little further, every
single one of those four U.S. Attorneys allowed as how, if that
type of a contact had been made to a witness of theirs before a
grand jury, they would open an obstruction of justice case to
inquire further.
Now, I'm not suggesting that Michael Elston has obstructed
justice with his call. I don't want to go that far. But I do
want to inquire whether, in response to both the Department's
statement that this was a fabrication, which as proved wrong by
the subsequent appearance of the e-mail, and the very fact of
the call having been made in the first place in very untoward
circumstances, I think you might concede, has any action of any
kind in the time that you were there, was it considered or
taken with respect to Michael Elston over this incident? Was
there any wood-shedding? Was there any disciplinary action? Was
there any consequence whatsoever from this?
Mr. Sampson. I don't remember any.
Senator Whitehouse. OK.
To followup on your conversation with Senator Feinstein and
the immigration issue and the real problem we have right now
with Carol Lam, it strikes me that when the Chief of Staff to
the Deputy Attorney General of the United States has a real
problem, that's a matter of pretty significant weight. And when
he says he has a problem right now, that temporal element is
also pretty significant.
And I ask you, with respect to the immigration prosecutions
undertaken by her district, what was the problem right now that
fits into that temporal urgency that is described in your e-
mail? What, right now, made something different about the
immigration thing?
Mr. Sampson. What I remember was going on at that time was
there was a robust debate going on in the Congress about
comprehensive immigration reform and a robust debate going on
within the administration about how the administration could
show that we were doing everything we could with regard to
securing the border. I remember--
Senator Whitehouse. So the problem was not so much with a
change in her conduct as with outside atmospherics that
affected your view of the importance of the immigration issue.
Mr. Sampson. I remember, the Attorney General felt some
exposure because the Department was being criticized soundly
for not doing enough to enforce the border, and there was a
debate going on in the administration about how to show that
the administration was doing more to enforce the border.
And at that very time there was discussion between the
Department and the White House about the notion of militarizing
the border. In fact, on May 15th the President announced that
he was going to send National Guard troops to the border.
I remember also that--I believe around that time, I think
even on May 11th, there was a meeting that had been scheduled
to meet with House Republicans who'd expressed concern about
border enforcement with either the Attorney General or the
Deputy Attorney General.
I don't know that that meeting every happened, but I
remember at the time there was real discussion in the senior
management offices of the Department of Justice about how we
could fix that problem, how we could get some immigration
deliverables. And I remember at our senior management meeting
sometime in the weeks before that, there was a specific
discussion about the U.S. Attorney's office in San Diego.
And Bill Mercer, who, I think at the time was the Principal
Associate Deputy Attorney General, came to the meeting having
pulled a bunch of statistics from the Sentencing Commission
comparing the offices along the Southwest border, and was
adamant about Carol Lam and that office's failure to understand
what was going on politically and reorient resources to bring
more border enforcement, notwithstanding the fact that she had
been the recipient of a lot of criticism from Members of
Congress.
And there was a view expressed at the time that Ms. Lam
just had her own independent views about what kind of cases she
wanted that office to work on and--and had not pushed her
office to follow the Attorney General's priorities with regard
to immigration, and also in the background of that was with gun
cases.
Senator Whitehouse. May I ask one last question? I know my
time is over.
Senator Schumer. Yes.
Senator Whitehouse. And it's really more of an observation
than a question, but you've left the Department so there's no
point quarreling with you about it.
But with respect to this question of U.S. Attorney
independence, I just want to point out that it's my very
distinct and very deeply held conviction that the independence
of the U.S. Attorneys collectively from the Department of
Justice, to a reasonable degree, is an asset in the
administration of justice in this country. And the way that I
have seen this handled is highly destructive of that asset.
That's my two cents' worth. Thank you.
Senator Schumer. Worth more than two cents, Senator. OK.
We're beginning the third round. We only have three of us
here. I know Senator Specter is returning. We're going to do
10-minute rounds, but I'll tailor, it because Senator Feinstein
has to leave at 5, to make sure she gets her third 10 minutes
in. OK.
Mr. Sampson, I want to talk a little bit about, now,
replacements. You had said in your written testimony today,
``with the exception of Bud Cummins, none of the U.S. Attorneys
was asked to resign in favor of a particular individual who had
already been identified to take the vacant spot.'' The
statement, however, is inconsistent with your views expressed
in e-mail exchanges that took place as far back as last fall.
In an e-mail on September 13th--this is OAG 34--didn't you
write to Harriet Miers that you were ``only in favor of
executing on a plan to push some U.S.As out if we really are
ready and willing to put in the time necessary to select
candidates and get them appointed. It will be counterproductive
to DOJ operations if we push U.S.As out and don't have
replacements ready to roll immediately.'' Those are your words.
Is that correct?
Mr. Sampson. It would be useful to me if I could see that
document, Senator.
Senator Schumer. Yes. It's an e-mail of September 13, 2006.
OK. So here's all I want to ask you. You don't have to study
the document too--it is your document, though, right? You
recognize it?
Mr. Sampson. Yes. The--the--
Senator Schumer. Yes.
Mr. Sampson. The middle e-mail on the e-mail chain is mine.
Senator Schumer. Correct. OK.
Here's what I want to ask you. Did you or did you not have
in mind specific replacements for the dismissed U.S. Attorneys
before they were asked to resign on December 7th, 2006?
Mr. Sampson. I personally did not. On December 7th, I did
not have in mind any replacements for any of the seven who were
asked to resign.
Senator Schumer. Did anyone around you that you were aware
of?
Mr. Sampson. I don't remember anyone having anyone in mind.
Senator Schumer. Really? You're sure?
Mr. Sampson. Yeah. In fact, I remember, Senator, as we were
finalizing the list, I remember saying, not knowing who will be
the replacement, do we still want to go forward with asking
these seven to resign?
Senator Schumer. Now, the Department admitted that you
replaced Bud Cummins to give a chance to Tim Griffin. Right?
Mr. Sampson. Tim Griffin was--
Senator Schumer. Was before. That was not December 7th.
Mr. Sampson. That's right. That was before. And the White
House had expressed interest in Mr. Griffin having the
opportunity to be appointed.
Senator Schumer. And you were aware that that was the case?
Mr. Sampson. Yes.
Senator Schumer. OK.
And isn't it a fact that the reason given by Associate
Attorney General Bill Mercer to Dan Bogden and Paul Charlton
that they were being fired, is because they had a better
replacement for them?
Mr. Sampson. I was not a party to that conversation. I--I
did prepare talking points for Mr. Mercer to use if he was
contacted by any of the U.S. Attorneys who had been asked to
resign.
Senator Schumer. Well, they claim--each of them claims that
was the reason given. You have no reason to doubt that?
Mr. Sampson. I don't know one way or the other.
Senator Schumer. OK.
So here we have--and was there a pool of identified
possibilities for some spots, a group? It might be one of these
six, one of these four, one of these two.
Mr. Sampson. To my knowledge, not as of December 7th. I did
not have any pool of replacement candidates in mind.
Senator Schumer. OK.
And did you identify replacements for any of the--OK. This
is really the same question that you've answered. OK.
Now, you mentioned before that there were some people you
recommended be removed to warrant. Can you give us those names?
Mr. Sampson. I think I didn't recommend that they be
removed. As the list was developed, they came--people came on
the list and went off the list.
Senator Schumer. OK.
Mr. Sampson. And what I remember--
Senator Schumer. Well, give me the couple of names of
people who were on the list and then removed from the list, and
the reason why.
Mr. Sampson. I guess I would hesitate to do this in this
open setting, name additional U.S. Attorneys who we considered
removing from the list. If--if you insist, I will do that.
Senator Schumer. I will insist. I understand the
sensitivity, but this is serious stuff.
Mr. Sampson. I understand.
Senator Schumer. And the--and the--
Senator Specter. Well, Mr. Chairman, if I might interject,
may we have a clarification as to precisely what Mr. Sampson
has been asked and what he's about to testify to?
Senator Schumer. Yes. What he has been asked, is names who
were on the list at one point but then removed from the list. I
think that's very important to know.
Senator Specter. These are people on the list to be asked
to resign as U.S. Attorneys?
Mr. Sampson. Some of whom are--some of whom are current
U.S. Attorneys
Senator Schumer. Yes
Senator Specter. I think that's fair
Senator Schumer. Thank you, Mr. Ranking Member. Go ahead,
Mr. Sampson
Mr. Sampson. At one point in time the U.S. Attorney for the
Middle District of North Carolina was on a tentative
preliminary list that I had
Senator Schumer. Who was that?
Mr. Sampson. Her name is Anna Mills Wagoner.
Senator Schumer. Why was she removed?
Mr. Sampson. A suggestion was made by Ms. Goodling that she
be removed. It's in one of the e-mails and says that she
recommends that the U.S. Attorney in the Western District of
North Carolina be removed.
That was a misprint. It was really the Middle District of
North Carolina. And Ms. Goodling suggested that she be removed
because Ms. Goodling was aware that Ms. Wagoner had a good PSN
program and had done some good work in preparing and organizing
a gang conference. That's to the best of my recollection
Senator Schumer. Any others?
Mr. Sampson. After October 17th, I recall that four
additional U.S. Attorneys were added to the list, including
David Iglesias, but ultimately three of those came off.
Senator Schumer. And who are they?
Mr. Sampson. Those are all redacted in one of the
documents, and I think I remember who the three are. I have not
had the opportunity to review unredacted documents, so I
hesitate, again, to name these because I--it's to the best of
my recollection.
Senator Schumer. Well, here's what I'd like you to do. Name
them, and if you find--if you go back and look at the documents
or whatever else in terms of your recommendation, you are
incorrect, you can notify the Committee and we'll change the
record.
Senator Specter. Well, Mr. Chairman, may I suggest that if
the witness knows the identity, as I've already agreed, fine.
But if he doesn't know them--
Senator Schumer. OK
Senator Specter.--if he's speculating or his recollection
is hazy, you're going to be identifying people who are
inappropriately--
Senator Schumer. Let's do this.
Mr. Sampson. That's precisely my concern, Mr. Chairman.
Senator Schumer. Let's do this. I understand that. Why
don't we ask you to go look and see if you have the document.
Mr. Sampson. I don't have it under--I have the document in
its redacted form.
Senator Schumer. Right.
Mr. Sampson. And so I think I know who those three were,
but I'm not 100 percent sure.
Senator Schumer. Why don't you go try to figure out who
they are, and I would ask you, in a couple of days in writing,
to submit names that you're sure of in addition. Would you be
willing to do that?
Mr. Sampson. I could do that. Yes, I could do that. Yes,
sir.
Senator Schumer. OK.
I just--for any of these people who might have been
replaced but weren't, were there any people being groomed for
those jobs?
Mr. Sampson. To the best of my recollection, no. If I'm
correct about the ones I'm thinking about, the answer is no.
Senator Schumer. OK.
And did Harriet Miers agree with you that it would be
counterproductive to fire attorneys unless replacements--you
had replacements in mind?
Mr. Sampson. I don't remember her views one way or the
other
Senator Schumer. All right.
The thing I just find terribly befuddling about all of
this--worse than befuddling, confounding--is this is such
serious stuff, to fire U.S. Attorneys, do it the way you did
it, and there's so little of a system, so little recollection
by you, the center of it all, no real file, no--no knowledge of
who was part of the system of rejecting it.
It--it's a pretty severe indictment of the Justice
Department in which you served, even if everything you're
saying is true, because when you do something like this there
ought to be a careful system, and there doesn't seem to be. It
seems sort of ad hoc. It seems that records weren't kept. It
seems that the story keeps changing. It's terribly confounding.
But you don't have to--I'm just making that comment myself.
Here's something else I'd like to ask you. When we talked
earlier, you said that the Department, including you, had
``mishandled the preparation for Mr. McNulty's testimony.''
That's your quote. And the Department of Justice acknowledged
that Mr. McNulty's testimony was incomplete, correct?
Mr. Sampson. I don't--I don't know that
Senator Schumer. OK
Mr. Sampson. I think I had--I left the Department and I'm
not aware what they've acknowledged or not acknowledged
Senator Schumer. They have.
Mr. McNulty testified for this Committee on February 6th.
You watched his testimony, did you not?
Mr. Sampson. I did not watch his testimony.
Senator Schumer. So you're not familiar with his testimony
at all?
Mr. Sampson. I remember reviewing portions of the
transcript of his testimony later in preparing--
Senator Schumer. Right.
Mr. Sampson.--Congressional correspondence, but I didn't
watch his testimony and I didn't review the entirety of his
transcript, and I only reviewed parts of it later.
Senator Schumer. When you reviewed parts of it, when you
heard/read about what happened in the newspapers, secondhand
accounts, didn't you realize that his testimony was incomplete?
Mr. Sampson. I didn't realize it.
Senator Schumer. You didn't?
Mr. Sampson. I didn't at the time
Senator Schumer. Can you explain that?
Mr. Sampson. I didn't focus on it. The Deputy Attorney
General came back to the Department and reported that he felt
things had gone well, that he had been able to give the
Committee some information and promised to come up and give the
Committee more information about the specific reasons that
these U.S. Attorneys were asked to resign. And I didn't--I
didn't focus on--I didn't review his transcript and I didn't
focus on his testimony. I was busy with other things and I
didn't focus on it until much later.
Senator Schumer. How about when it sort of came out in the
newspapers that his testimony was incomplete, that he felt--I
think there was a story a week or so later in Newsweek, or one
of the--I don't remember where it was, but there were stories
out that created quite a buzz, that he felt that he didn't give
straightforward testimony and that he'd been ill-prepared for
the meeting by you and others.
Mr. Sampson. Senator, I never intended to mislead Mr.
McNulty, or the committee, or Mr. Moschella. I did my level
best in the preparation to inform them of everything I knew. We
failed collectively to gather all the documents and go back and
look at the history.
Senator Schumer. I'm not--that's not the line of my
questioning here.
Mr. Sampson. I'm sorry.
Senator Schumer. It's a little different. It's OK. When did
you realize that his testimony was incomplete?
Mr. Sampson. Senator, I'm not--Senator Schumer. Well, you
realize it now because you stated it.
Mr. Sampson. I obviously, you know, realized that--I
realized on Friday morning, March 9th, that there was some
concern. The Attorney General, the day before, had come up and
met with you and with Senator Specter and with Senator
Feinstein and agreed to make all of his--five of his staff
people available, and that day agreed essentially that we would
make--the Department would make all of the relevant documents
available.
And at that time I went back and pulled a few of my
documents and spoke with Mr. McNulty and Mr. Moschella about
them, and there was concern, but, you know, I knew that I had
done my best to prepare them at the time. Our failure was one
in failing to organize a good preparation and communication
failures.
Senator Schumer. That seems to be endemic in this area all
the way through. OK.
What I was trying to get at is, when you learned it, did
you try and correct the record?
Mr. Sampson. The first time that that idea ever crossed my
mind was on Friday, March 9th, and I offered my resignation to
the Attorney General that day.
Senator Schumer. So your solution--your solution was to
resign. OK. Fair enough.
Mr. Sampson. Well, Senator, if I may, my--what I
recommended at the time was that the Department step back and
pull all the documents and do what it could to provide a
response to the Congress, and I offered my resignation.
Senator Schumer. I'm not being critical of you resigning
for that reason, I'm just drawing a conclusion. OK.
One last. Let me see here. I want to make sure Senator
Feinstein--Senator Specter, would you mind if I have one
little, before I go to another? But Senator Feinstein has to
leave by 5. Could we call on her next?
Senator Specter. OK
Senator Schumer. Thank you. So I'm just going to go over
this last little bit.
Senator Specter. She's not going to take between now and 5
though, is she?
Senator Schumer. No. She only needs 10 minutes. But she'd
go past the 10 minutes if you went and then--if I finish this
little section, you went, and then she went.
Senator Specter. That's--that's agreeable.
Senator Schumer. Thank you. OK.
Are you aware of whether anyone at DOJ who has--whether
anyone at DOJ has asked applicants for career positions--not
political positions, line positions--questions about any of the
following: their support for the President?
Mr. Sampson. I'm not aware of that.
Senator Schumer. How they voted in any election?
Mr. Sampson. I don't remember. I did not participate in
career hires and I'm not aware of people doing that.
Senator Schumer. You're not aware. That's my question.
Mr. Sampson. I don't--I don't--
Senator Schumer. Were you aware of anyone doing that?
Mr. Sampson. Let me be precise. I don't remember ever being
aware of anything like that.
Senator Schumer. OK.
Whether they were registered Democrats or Republicans?
Mr. Sampson. I don't remember being aware of anything like
that.
Senator Schumer. OK. And what their political leanings
were?
Mr. Sampson. I don't remember anything--I don't remember
anything like that.
Senator Schumer. OK. So you have no knowledge if such
questions were ever asked of line level Assistant U.S. Attorney
applicants?
Mr. Sampson. Senator, I don't have any recollection of
anything like that.
Senator Schumer. OK.
Mr. Sampson. I was not--did not participate in the hiring
of Assistant U.S. Attorneys.
Senator Schumer. Would it be appropriate to ask such
questions?
Mr. Sampson. I understand that Assistant U.S. Attorneys are
career employees and so it would not be appropriate.
Senator Schumer. Thank you.
Let me just ask you a couple more on this. Did you know
whether Ms. Goodling or anyone else asked such questions? Let's
ask Ms. Goodling. So you have no knowledge that Ms. Goodling
asked such questions of such people?
Mr. Sampson. Of career applicants?
Senator Schumer. Career. Correct.
Mr. Sampson. I don't remember any questions like that that
she would ask
Senator Schumer. OK. OK.
Senator Feinstein?
Senator Feinstein. Thank you, Mr. Chairman.
I'd like to place in the record a letter of August 23rd
signed by William Moschella which defends Carol Lam's
immigration record, pointing out that she has devoted
substantial resources to investigating and prosecuting border
corruption cases which pose a serious threat to both national
security and continuing immigration violations, and it goes on
and essentially answers the questions that I had asked by
saying that the office had made great strides. So, I would ask
that letter go into the record. Mr. Chairman, may that letter
just go in?
Senator Schumer. Without object. I apologize. Without
object.
Senator Feinstein. Thank you very much.
Mr. Sampson, did you or anyone else in your office call
Carol Lam and tell her that you were concerned about her
immigration record?
Mr. Sampson. I did not and I don't remember anyone in my
office doing that.
Senator Feinstein. Well, we've asked her that question, and
no one did. I want the record to reflect that as well.
I also want to--and this, Mr. Chairman, is the caliber of
U.S. Attorney that just got peremptorily fired. The Areano
Felix cartel. Are you aware of that cartel?
Mr. Sampson. Generally. I've--I've heard the name. I
understand it's--
Senator Feinstein. It is one of the most vicious drug
cartels on the planet. And as of December 19th, Ms. Lam
announced an indictment against the younger brother, Fransciso
Javier Areano Felix, and Manuel Arturo Villareal Herada, with
racketeering, drug trafficking, money laundering.
But I want you to listen to what the indictment also
charges: Areano and/or Villareal with specific violent acts,
including, but not limited to, the murder of Fernando Gutierrez
in 1996, the kidnapping of individuals in January 1902 and the
spring of 1904, and in January 1905, the murder of deputy
police chief Ugo Gabriel Corono-Vargas in Tijuana in 1905, the
murder of Jorge Baldoa-Sirron in Tijuana in February 1905, the
kidnapping, murder, and beheading of three Rosarito police
officers and one civilian in June 1906.
I can tell you that this drug cartel has been the scourge
of the southern border. The arrests were made, the indictment
has been issued. I've just learned the judge has delayed the
prosecution over death penalty issues. But this was a key and
critical case that, in my view--this is just my view--is worth
virtually solid gold to get these people out of commission.
They are vicious and they are unrelenting.
So it's rather hard for me, knowing some of these cases
that she was involved in, when no one spoke to her about
immigration, for you to be here and tell us that the reason
that she was terminated was because of an immigration record
that, as of August of 2006, your Department was ardently
defending.
And I must go back to the problem we have with Carol Lam
right now. The day before you wrote that e-mail, she noticed
the Department that two search warrants were issued. When a
U.S. Attorney notices the Department, how does she do that, or
how does he do that?
Mr. Sampson. Senator, as I testified before, I don't
remember receiving any notice of that, myself. There is a
system where U.S. Attorneys may submit an urgent report. I
believe it goes to the Executive Office of U.S. Attorneys.
Senator Feinstein. And I believe that's what she did. She
submitted an urgent report. And you're saying you knew nothing
about it and no one told you?
Mr. Sampson. I don't remember ever hearing about those--
those searches at that time. I received--
Senator Feinstein. You're under oath. You--no one told you
about those searches?
Mr. Sampson. Senator, I don't remember ever hearing about
those searches, and I certainly didn't associate in my mind the
idea of asking Carol Lam to resign with the fact that she was--
her office was doing an investigation of Mr. Foggo and Mr.
Wilkes. I--her--that office's investigation and prosecution of
Duke Cunningham was a good thing, and any investigations that
carried on from that conviction were viewed in the Department
as a good thing.
No one at the Department had a brief to carry for Duke
Cunningham. When I said in that e-mail--I referenced a problem
that we have with Carol Lam, I was referencing immigration
enforcement.
Senator Feinstein. You were, and yet you didn't ever, as
the Chief of Staff to the Attorney General of the United
States, pick up the phone and call her and say, we have a
problem with your record, nor did anyone else in the
Department?
Mr. Sampson. Senator, I recall that I suggested that that
be done. I recall that in the spring, around that time, the
Attorney General had asked the Deputy Attorney General's
office, the Deputy Attorney General and his office, to work on
the--improving the immigration numbers and getting some
immigration enforcement deliverables out of that office.
And I remember that he specifically tasked the Deputy
Attorney General to do that. And I remember asking, has anyone
called Carol Lam, and I think that my words were ``wood-shedded
Carol Lam about immigration enforcement''.
Senator Feinstein. And what was the answer?
Mr. Sampson. My recollection of the answer was that the
Deputy's office had not done that.
Senator Feinstein. That's correct.
So if this--I mean, this is a woman that was handling big,
big cases, the biggest--some of the biggest cases in the United
States. And you've got a problem with her and you're adding her
to the list, and it's immigration, and no one picks up the
phone to call her and say, we want you to know we have this
problem? Gun cases.
Mr. Comey talked to her, then said he was satisfied with
what she had done. But immigration, which is the major issue
that you are firing someone on, and no one gave her any notice.
We have asked her.
Mr. Sampson. I don't have anything to add. I'm not
suggesting that someone did give her notice. I think we did not
give--no one, to my knowledge, talked to Carol Lam about the
concerns that were had in the leadership of the Department
about her office's immigration enforcement.
Senator Feinstein. Was any consideration given to the cases
that she had brought, or was in the process of bringing, in
which the Areano Felix cartel was at the top of the list in
terms of major cases or the Foggo--Mr. Foggo was No. 3 at the
CIA. This is a big deal when a search warrant goes out.
Mr. Sampson. Senator, all I can tell you is what I know. I
was the aggregator of information that came in, and it came in
from the Deputy Attorney General who was a former U.S. Attorney
and had served with Carol Lam. It came in from the principal
Associate Deputy Attorney General Bill Mercer, who was a U.S.
Attorney and had served with Carol Lam. It came in from David
Margolis, who was--
Senator Feinstein. I'm sorry. What came in?
Mr. Sampson. Information about concerns about U.S.
Attorneys, including Carol Lam.
Senator Feinstein. I would appreciate it if you--
Mr. Sampson. I trusted the information that came in.
Senator Feinstein.--would provide the Committee with that
information. You said it came in, and I trust it came in in
writing.
Mr. Sampson. No. No--
Senator Feinstein. We would like to have that information.
Mr. Sampson. Senator, let me be clear. As I said in my
opening statement, the process was not scientific and it wasn't
well documented. I compiled a list based on information that
came in from folks in the Department who would have reason to
make an informed judgment about the performance of U.S.
Attorneys, including former U.S. Attorneys who were then
serving as the Deputy Attorney General and the Acting Associate
Attorney General, including the career--senior career official
in the Department, David Margolis, including the Director of
EOUSA, and these--this information that came in to me, I
aggregated into a list and compiled in a list. But it was not
scientific and it was not well documented.
Senator Feinstein. And it was not filed? I mean, you know,
the credibility of this thing diminishes. You are the Chief of
Staff to the Attorney General. This is unpredecented. You are
aggregating, by your own word. You are the one that put the
cases together. You effectively selected those who were going
to go to the Attorney General for his approval for dismissal,
and there is no file?
Mr. Sampson. Senator, I didn't decide those. It was based
on a consensus decision of senior Department of Justice
officials.
Senator Feinstein. Well, then who did decide? Give us the
deciders' names, please.
Mr. Sampson. The Attorney General is the one that decided.
He's the one that made the final decision that we would proceed
and go ahead and do this, and that these were the U.S.
Attorneys who would be asked to resign. He's the Attorney
General, I was the staff person.
Senator Feinstein. Yes. But you brought this information to
him and he signed off on it. Is that not correct?
Mr. Sampson. I did bring it to him, along with the Deputy
Attorney General and others in the Department. I was the keeper
of the list. Absolutely.
Senator Feinstein. But the list had no documentation. Is
that correct?
Mr. Sampson. The documents that the Department has provided
to the committee, I think, show some of the reasons. But
there's no documentation for the specific list. I think that's
accurate.
Senator Schumer. Senator Feinstein, can we--
Senator Feinstein. Yes. Thank you very much. I appreciate
it.
Senator Schumer. Senator Specter?
Senator Feinstein. Thank you, Senator Specter. I appreciate
your courtesy. Thank you.
Senator Specter. You're entirely welcome, Senator
Feinstein.
Senator Feinstein. Thank you.
Senator Specter. On the issue about the appointment of Mr.
Fitzgerald to be Special Counsel on the Libby matter, I think
it ought to be noted that, while Mr. Fitzgerald was appointed
in his capacity as an employee of the Department of Justice by
virtue of being a U.S. Attorney, that he could have been
appointed under the regulations, 28 Code of Federal
Regulations, Section 600.3 which says ``the Special Counsel
shall be selected from outside the U.S. Government,'' so that
terminating him as U.S. Attorney would not necessarily have
terminated him as Special Counsel. He could have been appointed
to carry on the duties in that capacity. I just want to clarify
the alternative procedure here.
Mr. Sampson. Senator, to my knowledge--
Senator Specter. There's no question--
Mr. Sampson. I'm sorry. To my knowledge--
Senator Specter. There's no question pending for you, Mr.
Sampson. You'd be well advised not to answer when you don't
have to.
Mr. Sampson. Thank you. Thank you, Senator.
Senator Specter. You might be well advised not to answer
when you have to.
Mr. Sampson. Thank you, sir.
Senator Specter. But not when you don't--when you don't
have to. We heard what you said about your thought of
termination, but there's no suggestion that there was a serious
consideration of terminating him, asking him to resign. But I
just want to have the record straight on the alternative
procedure.
I'm very much concerned, Mr. Sampson, about this issue of
circumventing the U.S. Senate, and I'm concerned about it for a
couple of reasons. One reason is that Senators traditionally
have had substantial input on who the U.S. Attorney is, and
there has to be a blue slip signed if it's somebody not in the
party, as Senator Durbin commented about signing the blue slip
for Mr. Fitzpatrick. If you're the same party, the White House
looks to Senators in the party to make recommendations up to
the President as prescribed under the Constitution, but to make
recommendations.
And I'm very much concerned about what happened with the
provision in the PATRIOT Act. It was there in the Conference
Report for three months and nobody knew about it. But when I
see a picture unfolding, that there was a conscious effort by
the Department of Justice to utilize that provision to
circumvent the Senate, then I'm really intensely interested in
it and frankly feel sort of victimized by it, especially when
you say that the process was used in bad faith.
Now, there's another e-mail. There are a lot of e-mails to
go into. It may be that Senator Schumer will run out of
questions before I run out of e-mails; who knows?
Senator Schumer. We shall see.
Senator Specter. Who knows how long C-SPAN 3 can carry
this? Who knows if anybody's watching C-SPAN 3? We may be
boosting the ratings of Fox with all of this talk.
But there is an e-mail dated November 15, 2006 from you to
Harriet Miers, whom we talked about before, and you enclosed in
it your ``plan for replacing'' certain U.S. Attorneys and you
have in this plan a reference to, we will work with you to make
sure there is a smooth transition, but intend to have a new
acting or interim U.S. Attorney in place by the end of the
year.
Well, the Acting U.S. Attorney would be under the Vacancies
Act, but the interim U.S. Attorney would be under the PATRIOT
Act.
Then on Step 4 you have, ``Evaluation and selection of
interim candidates. During November/December 2006, the
Department of Justice, in consultation with the Office of the
Counsel to the President,'' that's Ms. Miers, of course,
``evaluates and selects candidates for Attorney General
appointment (or candidates who may become Acting U.S. Attorneys
by operation of law) to serve upon the resignation of above-
listed U.S. Attorneys.'' Now, it is true that you have on Step,
``The selection and nomination or appointment of U.S. Attorneys
in regular course.'' But we already know, from your e-mail and
your admission, that you wanted to run out the clock and run
out the balance of the President's term.
But the question I have for you here doesn't--your e-mail
of November 15th to Ms. Miers, and specifying her role in the
evaluation and selection of interim candidates, raises a pretty
clear inference that it was more than just a staff
recommendation, that there had been, at a minimum, acquiescence
in this process to use the Patriot Act to circumvent the
Senate?
Mr. Sampson. Senator, I don't--I don't remember it that
way. The e-mail that I sent on December 19th was with regard to
Griffin only.
Senator Specter. I'm on the e-mail of November 15th,
which--which references your plan for replacing certain U.S.
Attorneys, where you talk about interim attorneys. And this e-
mail goes to Ms. Miers, White House counsel and you're talking
about--about her role.
Mr. Sampson. I guess it would be helpful to me if I could
look at that document as you question me about it.
Senator Specter. Well, here it comes.
Mr. Sampson. Thank you.
Senator Specter. Mr. Chairman, I'd ask that the clock be
stopped.
Senator Schumer. The clock is stopped.
Senator Specter. This may be the most refreshing and
appreciated moment of this entire proceeding.
Senator Schumer. Enjoy it while it lasts. The clock now
resumes.
Senator Specter. No, no. He's reading the document. Stop
the clock. You're not going to run out the clock like they were
doing, are you?
Mr. Sampson. Senator, no.
Senator Schumer. Senator Specter, I've let you go beyond
the 10 minutes, and the 7 minutes before, and I'll do it again.
So, don't worry.
Mr. Sampson. Senator, I don't remember--
Senator Specter. I don't want largesse, I want the clock
stopped.
Go ahead.
Mr. Sampson. I don't remember serious consideration ever
being given to what I've described as a bad idea by staff to
use the Attorney General--to have the Attorney General appoint
interim U.S. Attorneys and then not consult with the Senate
over a candidate who then could be nominated and confirmed.
Senator Specter. Well, what happened--
Mr. Sampson. I don't think that was ever adopted.
Senator Specter. What happened as a result of your
submitting that e-mail with the plan to her with reference to
interim attorneys under the PATRIOT Act and her role in it? She
said nothing? She didn't at least say, don't do this, I'm
opposed to it? If she accepts that and asks nothing, doesn't
that raise an inference of agreement?
Mr. Sampson. Senator, as--
Senator Specter. Isn't that--isn't that sort of analogous
to an adoptive admission?
Mr. Sampson. As I read the document and as I--when I
drafted this document, it was not--I don't remember it being in
my mind that the administration would not then work with
Senators to identify candidates for nomination in these seven
districts. I mean, Step 5--
Senator Specter. Now, Mr. Sampson, that's what your other
e-mails talk about. Your other e-mails talk about running out
the clock, and in bad faith consulting with Senators,
interviewing them and running out the clock. You--you had that
not only in your mind, but in the e-mails that you were not
going to utilize the confirmation process in the Senate, didn't
you?
Mr. Sampson. Senator, that e-mail was with regard to the
Eastern District of Arkansas.
Senator Specter. Well--
Mr. Sampson. I don't know what more I can say about this,
Senator, except to say that I did have that idea and I did
recommend it, but it was not adopted by the Attorney General
and it was not adopted or rejected by Ms. Miers, to my
recollection.
Senator Specter. OK. So you're saying that after she got
that e-mail and got the plan which talked about interim
attorneys which would circumvent the confirmation by the Senate
and her role in it, that she just stood by and let you proceed
as you chose?
Mr. Sampson. I don't read this document as suggesting
interim appointments that circumvent the Senate. To the
contrary, Step 5 sets forth the regular--followed the regular
process of consulting with Senators to identify candidates who
would be nominated and confirmed.
Senator Specter. Yes, it does. And I said Step 5 did, but
you have Step 4, interim appointments, which is the PATRIOT Act
to circumvent the Senate, and you had already utilized that, at
least in Arkansas.
Mr. Sampson. Senator--
Senator Specter. Well, let me move--
Mr. Sampson. Well--
Senator Specter. Let me move to another--do you want to say
something further?
Mr. Sampson. If I may.
Senator Specter. Yeah.
Mr. Sampson. The plan, as I understood it then and as I
understood it now, contemplated asking seven U.S. Attorneys to
resign and to ask them to resign, you know, by January 31st. It
says, ``By its terms, ask them to resign by January 31st.'' In
our discussions within the senior leadership of the Department,
the view was to ask them to resign by January 31st, but then
work with them and extend time and ensure that there was a
smooth transition.
Whenever a U.S. Attorney resigns, someone has to be
appointed interim U.S. Attorney. The first Assistant can
automatically become Acting U.S. Attorney under the Vacancies
Act, or the Attorney General can appoint someone. And after the
PATRIOT Act amendments, that's the only other option, is to use
the Attorney General's appointment authority to appoint an
interim U.S. Attorney.
And my recollection is, with regard to these seven who
resigned, some of them, the first Assistant became the Acting
U.S. Attorney, and in other cases the Attorney General
appointed an interim U.S. Attorney.
In my view, that's not--the idea of the Attorney General
appointing an interim U.S. Attorney and the idea of the
administration being committed to have a Senate-confirmed U.S.
Attorney are not mutually exclusive, so long as the
administration is committed to working with Senators to
identify a candidate for nomination.
Senator Specter. Well, wouldn't you agree, Mr. Sampson,
that on this state of the record where you have a request by
the Department of Justice for this new procedure under the
PATRIOT Act, and you have the plans set forth allowing for the
interim attorneys and you have, at least as to Arkansas, which
raises the inference that it could be beyond Arkansas, to run
out the clock, that that was what you wanted to do, that the
Department of Justice had it in mind at the outset to get this
law changed and then to use it for replacing U.S. Attorneys who
were asked to resign and use the shenanigans, or bad faith, as
you yourself characterized it, to run out the clock and have
all of these U.S. Attorneys serve the balance of the
President's term without Senate involvement or Senate
confirmation. Isn't that inference pretty apparent?
Mr. Sampson. Senator, I--as I testified before, this was
considered at the staff level. It was a bad idea. It was
recommended by staff, including me, and it wasn't adopted by
the principals. And I'm not aware of it ever being seriously
considered, by the Attorney General, at least.
Senator Specter. Was the modification in the PATRIOT Act a
bad idea, too, to circumvent the U.S. Senate?
Mr. Sampson. I can understand why that would raise a
question for a U.S. Senator. I think at the time it was on the
heels of a controversy in the District of South Dakota about a
court appointment and about an Attorney General appointment,
and so I think it was well-intentioned at the time. But I
really don't remember and I didn't participate in that, to the
best of my recollection.
Senator Schumer. Senator Hatch?
Senator Specter. Well, that's all very interesting. But was
it a bad idea?
Mr. Sampson. In hindsight it seems like a bad idea.
Senator Specter. Thank you.
Senator Schumer. Senator Hatch?
Senator Hatch. Well, thank you, Mr. Chairman. I appreciate
that.
Now, I just want to start by saying that you've served well
here in the Senate, and I think in the executive branch. You've
made some mistakes, but that's true of all of us. We all make
mistakes. None of us are perfect. But you've owned up to them,
and to the point of resigning, which I didn't think you
particularly had to do, between you and me.
You owned up to these mistakes all day long through this
intensive hearing. If you're as tired as I am from this, I
wouldn't blame you. I commend you for your sense of
accountability that made you resign on your own, and I think
anybody with brains has to respect that.
I want to--you know, I want to thank you for being as
forthright and candid as you've been. You're doing your best to
be honest and forthright with us, and I think we ought to give
you credit for that.
Now, we're supposedly trying to get the truth here. That
means going with the evidence. There is substantial evidence,
dating back to at least 2003, about Carol Lam's performance.
Now, I happen to think she's a fine lawyer, just like you have
said here. I happen to think she did a pretty good job in many
respects.
But I have to tell you, there is no evidence regarding
interference with any case, not one shred of evidence. You
know, that's the evidence here today: there is no evidence of
interference with any particular case.
Now, it may not be enough for certain Senators, but that's
the evidence, that the decision was the administration's to
make. You know, if you look at it, I can see why the
administration might want to have somebody else. She's had the
opportunity. She's an excellent person.
She's going to be able to do well in the private sector, no
question, or the public sector if she wants to go into State
government. But the fact of the matter is, there were
performance problems that this particular administration wanted
to clear up and take care of.
And you can't ignore the facts here, you know. From the
Sentencing Commission data, only 29 defendants have been
sentenced for firearms offenses in the Southern District of
California in the past 2 years. This is a big issue to this
administration. It's always accused of supporting gun rights
and so forth. Well, one of the reasons we believe we brought
crime down is because we have gone after the misuse of guns.
Well, there were 29 defendants that have been sentenced for
firearms defenses in the past 2 years; only 88 have been
sentenced for firearms offenses in the last 5 years. That's
under 18 U.S.C. Sections 922 and 924.
Now, let me just give you a contrast for the same period
between 2000 and 2006. The Southern District of Texas, in
retrospect, got 946, just one district; the Western District,
894; the District of Arizona, 897; the District of New Mexico,
437. You know, I just don't think you should be pilloried
because--because the administration decided it was time to make
a change there.
Now, I think the administration mishandled it. They should
have just said flat-out, you served well, we appreciate you,
but now we want to give somebody else a chance. Had they done
that, it would have been a lot better for everybody concerned.
The same thing with Mr. Iglesias, you know. You know, I
don't think anybody here wants to run the guy down from the
standpoint of being a good lawyer or a decent U.S. Attorney,
but to be honest with you, there were reasons, performance
reasons, that were legitimate reasons.
On immigration cases, look, I looked and contrasted her
with some of the people in Texas. She had maybe 1,000
immigration cases to 4,000. That may not be totally accurate,
but it was at least 2:1 in Texas. These were important issues.
Immigration smuggling was one of the administration's major,
major concerns, and especially in the Southern District of
California, especially there.
Well, now, let me ask you this. Did Carol Lam have a legal
right to hold onto this position, you know, if the President,
you know, exercised his right to remove her for any reason
other than the two bad reasons that we've all admitted the
President should not do, or neither should you or anybody else
in the Justice Department?
Mr. Sampson. My understanding is, U.S. Attorneys are
political appointees and so they don't have tenure protection.
Senator Hatch. They have no right to hold onto the job.
Now, she might have wanted to. You've heard Senators on this
Committee who have been U.S. Attorneys who say it's the best
job they've ever had, including the Senate.
And, frankly, I don't blame anybody for wanting to hold
onto it, but I also don't blame the President for wanting to
give some other people an opportunity, especially if some of
the performance wasn't up to what they really wanted them to
do.
She was doing a lot of other good things, there's no
question about it. She's an excellent lawyer. She did an
excellent job. She did a lot of good things. But I saw the
letters from--I think there were like 20 Members of Congress
who were concerned about the lack of prosecution in these
areas.
And, of course, I saw Senator Feinstein's letter. Now she's
saying, well, she corrected that. Well, I don't think that's
necessarily the evidence either. Now, these positions serve at
the pleasure of the President.
How important were gun prosecutions to this administration?
Mr. Sampson. Project Safe Neighborhoods was the President's
signature domestic policy initiative, at least in the law
enforcement area, during the first term. And I recall that--I
recall General Ashchroft frequently touting the successes that
the Department had had in that area. The Department, to my
recollection, had increased gun prosecutions by 70 percent as
of, 2004 or 2005, and so they were very important.
Senator Hatch. Well, how important were immigration
smuggling cases, and especially in the Southern California
District?
Mr. Sampson. They were very important, Senator, especially
as the administration was trying to persuade the Congress to
enact comprehensive immigration reform. And one of the
criticisms was that it should be enforcement only, that the
focus should be on sealing the border before considering the
question of the 6 million, or 8 million, or 10 million illegal
immigrants that were in the country. And so border enforcement
was very important as a way to assist the administration in
promoting comprehensive immigration reform.
Senator Hatch. So if you look through the President's eyes,
these are matters of great concern to the President and to this
administration.
Mr. Sampson. Yes. In the spring of 2006 when the
immigration bill was being debated, I remember a robust
discussion in the executive branch about the things that could
be done to help get that legislation through, the things that
could be done to more effectively prosecute illegal immigration
on the Southwest border.
Senator Hatch. Well, and you did a very good job of
explaining why performance is a broader--of broader
significance than our friends who are criticizing have allowed
here, and the political side of it was interpreted more
narrowly, just to the cases where there was an ongoing
investigation or case in esca. I don't know how anybody can
really disagree with that.
Now, let me ask you another question. When the Washington
Post article appeared, I called the Attorney General and said,
what about this? And he said, yes, I had a general knowledge
about what was going on, but I didn't have the specific
knowledge because I hadn't concentrated on that. And he relied
on you and others, and there were plenty of others working on
this at the Department of Justice. Is that a fair appraisal of
the way he feels, at least to the knowledge that you have of
it?
Mr. Sampson. Yeah. I can only speak to what I know, and I
feel like I kept him generally aware of the process.
Senator Hatch. Generally aware.
Mr. Sampson. Yes. I briefed--I spoke with him every day. I
talked to him about the things that I was doing and the
conversations I was having. I don't remember sharing any paper
with him on it, but I remember that we generally talked about
it.
Senator Hatch. He admits that. But do you understand why he
feels like he didn't know all the specifics about this?
Mr. Sampson. I think he--well, look. I don't want to
speculate to--to what he thinks. I can only tell you what I
think, which is that I believe I kept him generally aware. And
then as the process came to a decision point, that he approved
the idea of going forward and asking--
Senator Hatch. In the end, he did. Did he understand all
these nuances that you've been questioned about today?
Mr. Sampson. To the best of my knowledge, he understood
some of them, and others he didn't have as much understanding
on.
Senator Hatch. Well, that's my point. So for us to hang the
man in the press and everywhere else for not understanding
aspect of this that it's taken you all day long to explain, it
seems to me it's wrong. Would you agree with that?
Mr. Sampson. I wouldn't want to--I--I don't know--
Senator Hatch. I'm giving you a chance here.
Mr. Sampson. Look, I think the--
Senator Hatch. You don't have to--you don't have to answer
that question. I understand.
Mr. Sampson. I only--I want to come and testify what I
know, and I think the Attorney General is a good man who's
doing his level best to--to do his best.
Senator Hatch. Did he have any intention, to your
knowledge, or did he indicate any intention of doing wrongful
acts here?
Mr. Sampson. Not to my knowledge.
Senator Hatch. Or of hurting anybody?
Mr. Sampson. No, not that I recall.
Senator Hatch. Or of smearing any of these eight U.S.
Attorneys.
Mr. Sampson. To the contrary. He was concerned about that.
He felt that the Department's position should be to not talk
about the reasons they were asked to resign that related to
their--to their--the way they were doing their jobs.
Senator Hatch. Thank you, Mr. Chairman.
Senator Schumer. Thank you, Senator. OK.
We're on round four here. I want to talk a little bit about
David Iglesias. First, just a specific question and then we'll
get into more detail.
You mentioned earlier, I believe, that the Attorney General
talked to you about Karl Rove, relaying complaints about Mr.
Iglesias. Correct?
Mr. Sampson. I remember him doing that, but I don't
remember when.
Senator Schumer. That was my question: when? Do you have
some idea?
Mr. Sampson. I think it was--
Senator Schumer. Can we get a year?
Mr. Sampson. I think it was in the fall of 2006 in the run-
up to the midterm elections
Senator Schumer. Right. Because I believe that he was--Karl
Rove was called a few times, or the Attorney General himself
was called on it as well. Right?
Mr. Sampson. I remember learning from the Attorney General
that Mr. Rove had complained to the Attorney General about U.S.
Attorneys in three districts--
Senator Schumer. And do you think that--
Mr. Sampson.--and the substance of the complaint was that
they weren't aggressively pursuing voter fraud cases.
Senator Schumer. And you think, with Mr. Iglesias, it's
likely to be the fall of 1906?
Mr. Sampson. I think so, but I
--Senator Schumer. OK.
Mr. Sampson.--don't remember specifically.
Senator Schumer. All right.
Let's go through Iglesias a little bit, because this one is
one of the most befuddling of all, and none of the explanations
really add up right now. Now, you say you don't know a lot,
including who put his name on the list at the late date, which
is a mystery that we have to figure out. That's at the core of
this whole--this whole investigation. But, here, I just want to
go over some facts.
On March 1, Brian Roehrkasse, the Justice Department
spokesperson, said, ``There is a lengthy record from which to
evaluate Iglesias' performance as manager and we made our
decision not to extend his service based on performance-related
concerns.''
So I want to examine that ``lengthy'' record. Jim Comey,
the former Deputy Attorney General who directly supervised
Iglesias said, ``he was one of our finest and someone I had a
lot of confidence in as Deputy Attorney General.'' Isn't that
correct?
Mr. Sampson. I don't know if Mr. Comey said that or not. I
don't know.
Senator Schumer. It's in the Washington Post of March 1,
2007.
On 29 April 2004, you yourself named Iglesias for a
candidate for a promotion to head the Executive Office of U.S.
Attorneys, did you not?
Mr. Sampson. I--I--I believe that I had him on a list of
possible candidates who--
Senator Schumer. Here's--here's how you described him. It's
in a memo. Let me refresh your memory. You described him as ``a
diverse up-and-comer, solid.'' Is that wrong?
Mr. Sampson. I believe that I believed that at the time
that I wrote the memo.
Senator Schumer. Yes. OK.
November of 2005, Iglesias received an ``Excellent'' office
evaluation which stated that he was ``experienced in legal
management and community relations work and is respected by the
judiciary agencies and staff.
The U.S. Attorney's Office had a well-conceived strategic
plan that complied with Department priorities and reflected the
needs of the district. Isn't that right?
Mr. Sampson. I don't remember that. I don't know that I
knew that.
Senator Schumer. It's not wrong, is it? You have no reason
to doubt it? I'm telling you it's in--it's in the office
evaluation.
Mr. Sampson. I don't have any reason to doubt it.
Senator Schumer. OK.
And as recently as 2006, he received a letter from Michael
Battle recognizing ``his exemplary leadership in the
Department's priority programs.'' Any reason to doubt that?
Mr. Sampson. I don't--I don't know one way or the other.
Senator Schumer. OK.
Mr. Sampson. I don't have any reason to doubt it.
Senator Schumer. OK. So we have a lengthy record.
So let's try to delve into how Mr. Iglesias ended up on the
hist list. On March 2, 2005, you yourself recommended that he
be one of the people who should be retained. Correct?
Mr. Sampson. I think that's correct.
Senator Schumer. Yes. In your--in your March, 2005 list,
his name is in bold, meaning that he's in the category
``Recommend retaining strong U.S. Attorneys who have produced
well, managed well, and exhibited loyalty to the President and
Attorney General.''
And, in fact, when you sent lists of attorneys to consider
pushing out to Harriet Miers on September 13th and to Michael
Elston on October 18th--on October 17th, excuse me, Mr.
Iglesias did not appear on this list in either of its
reiterations. Is that right?
Mr. Sampson. I think that's right.
Senator Schumer. OK.
In fact, he doesn't appear on the hit list until November
15th, 2006 and I want to ask you questions about why that is
so. And let me be clear. None of us is passing judgment in any
way on the people who might have made complaints about David
Iglesias. Our focus is on the Department, on you, and others in
the Department, how they dealt with those complaints, OK? OK.
Can you tell us on what date Mr. Iglesias was added to the
list of names of U.S. Attorneys to be fired?
Mr. Sampson. I don't remember the specific date. I
remember--
Senator Schumer. Approximate time.
Mr. Sampson.--Sometime before November 7th, I had
discussions with others at the Department of Justice about U.S.
Attorneys who we might consider adding to the list, and those
resulted in four additional names being added, including
Iglesias'.
Senator Schumer. OK.
Mr. Sampson. I remember speaking to--at some point prior to
this, I remember in my mind, in the best of my memory, knowing
that Bill Mercer, who had previously served as the principal
Associate Deputy Attorney General, was a fellow U.S. Attorney
of Mr. Iglesias, had expressed negative views about Mr.
Iglesias.
He had served with Mr. Iglesias on the Attorney General's
Advisory Committee and recommended that he not be reappointed,
recommending that he be replaced as chair of the Border
Committee.
Senator Schumer. When was that? When was that?
Mr. Sampson. That would have been in 2005.
Senator Schumer. 2005. And you had a recollection of that?
Mr. Sampson. I did. And I knew generally--
Senator Schumer. But it didn't stop you from--or it didn't
cause you to put him on the list in October or September of
2006, correct?
Mr. Sampson. That's right.
Senator Schumer. And yet he ended up--so it must have been
something that happened between October 17th and November 15th
of 2006 that made Mr. Iglesias be added to the list. I'm not
saying something you did, but something must have happened that
made this change, right?
Mr. Sampson. If I may share just two points.
Senator Schumer. Please.
Mr. Sampson. I also remember that at some point Mr. David
Margolis, the Associate Deputy Attorney General, had indicated
to me that his--some negative views about Mr. Iglesias, that he
wasn't a strong manager, that he delegated a lot to his first
assistant. And so I knew in my mind those two criticisms from
Mr. Mercer and Mr. Margolis.
Senator Schumer. Any just approximate idea of when Mr.
Margolis made those suggestions to you?
Mr. Sampson. I don't remember.
Senator Schumer. Were they before October 17 of 2006?
Mr. Sampson. I think so, to the best of my memory.
Senator Schumer. Before.
Mr. Sampson. Yeah. I think--
Senator Schumer. So it didn't cause you to add him to the
list that you gave to, I guess it was, Mr. Elston. Was it
before September 13th of 2006?
Mr. Sampson. I don't remember specifically when I heard
those criticisms from Mr. Margolis. I think that what happened
is that--
Senator Schumer. Oh, but wait. I just want to--I'm sorry to
interrupt you. I just want to get a date set here or a time.
Was it in 2006? Was it fairly recent? I mean, that's not hard
to--
Mr. Sampson. I don't--I don't remember. I don't think it
was that recent.
Senator Schumer. No. So it could have been a while back?
Mr. Sampson. Yes.
Senator Schumer. So the question remains, why those
comments by Mr. Margolis, by all reports a respected member of
the Justice Department, didn't trigger Mr. Iglesias' name on
the lists of September and October of 2006, but did put him on
the list of November?
There must have been something else. Is there anything else
you can recall that happened in the interim that--not that you
did, but that somebody told you, somebody mentioned?
Mr. Sampson. As best as I can remember sitting here today,
and I've thought back about this, sometime in late October
those who--in the senior management of the Department, the
Deputy Attorney General, his Chief of Staff, myself, Monica
Goodling, went back and looked at the list to see if there was
anyone else who should be added.
Senator Schumer. Uh-huh.
Mr. Sampson. And four U.S. Attorneys were added, including
Mr. Iglesias. Three ultimately came off. We've talked about
that.
Senator Schumer. Who were the people at this discussion?
You said Monica Goodling--
Mr. Sampson. I don't remember it being one discussion. It
was just--
Senator Schumer. Who were the people involved in the
general discussions?
Mr. Sampson. The Deputy Attorney General, his Chief of
Staff, Monica Goodling.
Senator Schumer. Yourself.
Mr. Sampson. Myself.
Senator Schumer. Anyone else?
Mr. Sampson. I don't remember if Bill Mercer was involved
at that time or previously.
Senator Schumer. Got it.
Mr. Sampson. I don't remember specifically if David
Margolis was involved that time or previously. They had been
folks who had been consulted previously on the issue.
Senator Schumer. I'll ask you a few more questions. Did you
have any communication with any member of Congress or
Republican party official in New Mexico in October, or any
Republican party official, in October of 2006 about Mr.
Iglesias?
Mr. Sampson. I didn't.
Senator Schumer. OK.
To your knowledge, did Attorney General Gonzales have any
communication with any of those groups in October of 2006?
Mr. Sampson. Not to my knowledge.
Senator Schumer. Not to your knowledge? OK.
To your knowledge, did Karl Rove have any communication
with any Member of Congress or Republican party official in
October, 2006 about Iglesias?
Mr. Sampson. I don't know.
Senator Schumer. OK.
And you wouldn't know--you would have no recollection if
any of those people, Members of Congress, Republican party
officials, Attorney General Gonzales, Karl Rove had any
discussions with any other members of the group. You didn't
hear anything to that effect?
Mr. Sampson. Not that I remember.
Senator Schumer. OK. OK.
Mr. Sampson. And, Senator, in reviewing the documents, I
understand that Monica Goodling met with some New Mexico
Republican, but I don't--I don't remember anything more than
that.
Senator Schumer. And was it about that time?
Mr. Sampson. I don't remember.
Senator Schumer. OK. Well, we'll check the documents.
Mr. Sampson. I think it's in the documents. I don't--I did
not remember that until reviewing the documents.
Senator Schumer. OK.
So do you have any reason to disbelieve the view? Because
if you look at all the facts, it's kind of logical that the
only reason Mr. Iglesias was put on the list and removed was
calls from Members of Congress in 2006 of October? Do you have
any reason to doubt that?
Mr. Sampson. I'm sorry. Can you say it again?
Senator Schumer. Any reason to doubt that the reason Mr.
Iglesias was put on the list and removed--and then eventually
removed were calls from members of Congress in October, 2006?
Do you have reasons to doubt that?
Mr. Sampson. I just don't know. I don't remember.
Senator Schumer. OK.
Mr. Sampson. As I testified before, I remember, after he
was on the list, having a conversation with the Deputy Attorney
General and the Deputy Attorney General said--suggested that
Senator Domenici wouldn't have any concern about us asking
David Iglesias to resign because he was dissatisfied with him.
Senator Schumer. Right. In fact, you write to Ms. Goodling
that ``the White House wants''--and you have a name redacted--
''for New Mexico U.S. Attorney, but Domenici is not so sure.
Domenici is going to send over some names tomorrow.'' Now, that
was a little bit later, right?
Mr. Sampson. I don't remember. It would be helpful if I
could see that document.
Senator Schumer. It's OAG 125. I'll keep--I'm not going to
stop the clock. I'm going to keep asking questions while you
look at that document and then we'll come back to it. OK.
Let's go through some of these so-called performance
problems Mr. Iglesias allegedly had. One of the complaints made
against him was lack of aggressiveness in indicting election
fraud cases. In fact, even the President passed along
complaints of this nature. We know that. That's in the record.
Dan--the President said so. Dan Barlett, counselor to the
President, said, according to the Washington Post, President
Bush told Attorney General Gonzales about such complaints and
specifically cited New Mexico as one of the three States where
the complaints had arisen. You were aware of such complaints
about Mr. Iglesias, were you not?
Mr. Sampson. I don't remember the Attorney General telling
me about his--
Senator Schumer. I didn't ask that. I just asked if you
were aware of complaints about Mr. Iglesias on voter fraud--on
voter fraud cases.
Mr. Sampson. Yes. At the--at the time I was aware that the
Attorney General--the Attorney General informed me that he had
received a complaint from Karl Rove about U.S. Attorneys in
three districts, as I've testified already.
Senator Schumer. On voter fraud?
Mr. Sampson. And the substance of his complaint was voter
fraud--
Senator Schumer. Right. Not doing enough.
Mr. Sampson.--and their failure to aggressively pursue it
Senator Schumer. Right.
Now, you are aware that Mr. Iglesias was one of two U.S.
Attorneys invited to teach a voting integrity symposium in
October of 2005 sponsored by the Justice Department's Public
Integrity and Civil Rights Section, and attended by 100
prosecutors from around the country, right?
Mr. Sampson. I didn't know that.
Senator Schumer. OK. Well, if he was so bad at voter fraud,
why would he be one of two chosen to do this?
Mr. Sampson. I don't know.
Senator Schumer. I don't either. It's a good question, I
think.
FBI Director Mueller testified on Tuesday that he was not
consulted on the U.S. Attorneys' firing and he wasn't aware of
any election fraud case since 2001 that he thought should have
resulted in an indictment, but did not.
Did you or anyone else at Justice consult with the FBI to
evaluate any of these complaints about voter fraud, not
pursuing voter fraud cases?
Mr. Sampson. I didn't and I'm not--I don't remember doing
that and I don't remember anyone else doing it.
Senator Schumer. This goes to a more general question. When
you heard complaints about these U.S. Attorneys, the ones who
were fired, Iglesias included, did you ever check, did you ever
ask them? According to them, in most cases, not, although I
believe early on Ms. Lam was talked to about immigration cases.
Did you ever do independent research?
Mr. Sampson. I did--I don't remember every doing any. I
didn't do any.
Senator Schumer. So these folks were fired without any
independent checking? Just, sort of, complaints out of nowhere.
We don't know who they came from. You've not been able to
identify the people. We don't have a file and they are fired.
Isn't that--doesn't that trouble you?
Mr. Sampson. Senator, the process, as I described it, was
my role was aggregating information that came in from senior
leaders in the Department. And I just relied on that
information. It came in from David Margolis and Paul McNulty
and Bill Mercer.
Senator Schumer. But they need a senior leader who made a
specific complaint about a U.S. Attorney, and then what you did
when you got it.
Mr. Sampson. I remember the Deputy Attorney General asking
me to add Kevin Ryan to the list. I remember concerns being
expressed--Senator Schumer. And did you go--did you go check
and see if the--what the Deputy Attorney General had heard
about Kevin Ryan might be true?
Mr. Sampson. I did not. I relied on the Deputy Attorney
General.
Senator Schumer. So in other words, someone brought up a
name, brought up a complaint, and they were just put on the
list?
Mr. Sampson. They were put on a list that was then
circulated among the senior leadership of the Department--
Senator Schumer. Right. Right
Mr. Sampson.--and approved and ultimately brought to the
Attorney General and approved.
Senator Schumer. And ``approved'' meant no one said ``take
the name off'' ?
Mr. Sampson. Essentially.
Senator Schumer. OK. So there was very little research that
went behind this after somebody in the Department put the name
on a list.
Mr. Sampson. The somebody in the Department were the senior
leaders of the Department who oversaw the work of the U.S.
Attorneys, the Deputy Attorney General.
Senator Schumer. I understand who the somebodies were.
Mr. Sampson. His deputy. And I relied on that information.
Senator Schumer. My good friend and colleague here is
importuning me on. I'm just going to try to be as quick as I
can here because I don't want to hold him up here.
Senator Specter. Wait a minute. I'm importuning you off.
Senator Schumer. Off. Exactly.
[Laughter.]
Well, on and then off.
But we have no real written documentation of any problem
with election fraud prosecutions by Mr. Iglesias. Correct?
You're not aware of any written documentation?
Mr. Sampson. I'm not aware of any.
Senator Schumer. OK.
There was a complaint he was an absentee landlord, but he
was in the National Guard. We've been through that in previous
discussions and hearings, so I'm not going to ask you to
respond to that.
Now, on border enforcement, which was the third complaint,
we heard about the rankings of the borders--of the border
States. Isn't it true that, of the five border districts, New
Mexico ranks second in immigration cases handled per AUSA per
year in 2004?
Mr. Sampson. I don't have any reason--I don't know,
Senator, but I don't have any reason to doubt that.
Senator Schumer. OK.
So he wasn't absentee. We have no written document of voter
fraud. He did a good job on immigration. I'll just introduce
into the record, for the sake of time, all the other things
that can be said positively about him doing border.
Senator Specter. Are you asking for unanimous consent?
Senator Schumer. I am asking for unanimous consent.
Senator Specter. OK.
Senator Schumer. Thank you, Mr. Ranking Member.
Here's the conclusion I reach: Iglesias began as one of our
finest, was considered for promotions, was trained to--was
selected to train others in election fraud, had one of the best
border records, and yet was fired for not doing a good enough
job, all of a sudden between October and November of 2006 on
facts that were never checked on.
Do you still think David Iglesias deserved to be fired?
Mr. Sampson. Senator, looking back on all of this, you
know, I wish that we could do it over again.
Senator Schumer. So are you saying you think he shouldn't
have been fired?
Mr. Sampson. Senator, I don't know. That was a decision
that was made. In hindsight--in hindsight I wish that the
Department hadn't gone down this road at all, and I regret my
role in it.
Senator Schumer. I understand.
Mr. Sampson. And that's one of the reasons I resigned.
Senator Schumer. So if the choice were up to you, just
thinking back on that fateful December 7th, would you now,
knowing what you know now, have put David Iglesias on a list, a
choice solely up to you that he should be fired?
Mr. Sampson. In hindsight, sitting here today--
Senator Schumer. Correct.
Mr. Sampson.--I don't--I would not.
Senator Schumer. Thank you. Just one final point before I
turn the final line of questioning over to my good colleague,
Senator Specter, who may go as long as he wishes, given that he
has reminded me every minute that I have gone over each minute.
You--one of the things you stated, is you were not aware of
people being fired because they would or would not prosecute
specific cases. No one has said anything that contradicts that
you were not aware of them. That would come from other
witnesses if that proves to be the case.
But it is--I just want the record to show that it's
certainly possible that people were fired for political reasons
and you didn't know about them. Somebody in the White House
political section A calls up somebody in Justice B and says, we
want to fire U.S. Attorney C for political reasons, but come up
with another reason and tell Sampson to put them on the list.
That would be possible. I'm not saying it happened, but it
certainly would be possible, right?
Mr. Sampson. Senator, that would be possible.
Senator Schumer. Sure.
Mr. Sampson. I'm not aware of that being--
Senator Schumer. I understand.
Mr. Sampson.--the motivating factor. And I can only speak
to what I'm aware of.
Senator Schumer. The only--Mr. Sampson. I don't know what
other people were aware of.
Senator Schumer. The only point I'm making is, your lack of
awareness doesn't prove that it didn't happen, correct?
Mr. Sampson. Yes
Senator Schumer. Thank you.
Senator Specter?
Senator Specter. Thank you, Mr. Chairman.
Senator Schumer and I had an arrangement where he would go
for 10 minutes and I would go for 5, and we would terminate.
I'd like unanimous consent to enter this document in the
record.
Senator Schumer. Read it.
Senator Specter. Where I pointed out when he was three and
a half minutes over time, and I struck that out and put four
and a half minutes, struck that out, five and a half minutes,
struck that out, six and a half minutes. I gave him a break at
seven and a half, put it at eight and a half minutes, nine and
a half minutes, and I'd like this in the record.
Senator Schumer. Without objection and with pride.
[Laughter.]
Senator Specter. Mr. Sampson, I had a few more questions in
mind, but we have now passed a violation of the Eighth
Amendment, prohibition against cruel and unusual punishment.
But your questioning has been cruel, but usual in Hart 216.
I think you've summed it up very well when you said that,
by hindsight, the Department went down the wrong road. I think
that is a pretty good summation. Again, I thank you for coming
in because you came in voluntarily and you've been asked a lot
of difficult questions, and I think your responses have been
well within the ambit of being reasonable.
We look for your recollection. It's not easy to do. We look
for inferences, and you have held your ground on those matters.
I started off on two issues. One was the candor of the Attorney
General and whether he was candid in the March 13th news
conference saying that he was not involved in ``discussions'',
contrasted with the e-mails.
And we will hear from him. I do believe that Attorney
General Gonzales has a record of public service as a Supreme
Court Justice in Texas and as White House counsel, and Attorney
General now for more than two years, and he's entitled to his
day in court, so to speak. We ought to hear from him and ought
not to make judgments until we do hear from him.
I am very much concerned about what was done with the
PATRIOT Act provision to circumvent the Senate. I say that out
of respect for the Senate's prerogatives, contrasted with the
prerogatives of the Executive, and also with what happened on
the provision being inserted into the PATRIOT Act where it's
questionableness comes into sharp focus on the way it was used.
But we have--we've gone into these matters in very, very
substantial detail and, as usual in Washington, it is not
really what was done because the President had the right to
terminate the U.S. Attorneys.
I think the better judgment would have been not to have
characterized them or found fault with them. It's better simply
to have--simply to have said we stand on the President's
standing to do what he has done.
Had that been done, I don't think U.S. Attorneys would have
come forward to complain, and I think their complaints were
well justified once their professional careers were at issue.
And as I said in an earlier hearing, I thought the Attorney
General was wrong when he said the reputation of the Department
was more important than the reputation of the individuals.
These clouds will last a lifetime, a professional lifetime
for them, whereas, the Department of Justice will survive. It
will survive. And I think a good lesson has been learned, not
from what was done, but from failure to be candid and a failure
to respond in a--you don't have to be wise and judicious, just
sensible.
But again, you have been a stalwart witness. It's been a
long day for you, and we thank you for coming in.
Mr. Sampson. Thank you.
Senator Schumer. And I'm going to use Senator Specter's
remaining 37 seconds, which he stayed within the limit of. I
want to thank you as well. It's been a long day. I think I
speak on behalf of everyone on this committee, we appreciate
your coming before the Committee voluntarily. We appreciate you
doing your best to answer a whole lot of questions and going
through a long day, and appreciate your being here.
The record will remain open for 1 week where we may
submit--members may submitted written questions to you, Mr.
Sampson, and we will recess. The Chairman asked me to say we
would recess, in consultation with the Chairman, to see if
anybody felt a strong need to ask you to come back again, which
I hope for your sake doesn't happen.
With that, we are recessed.
[Whereupon, at 5:40 p.m. the hearing was recessed.]
[A question and answer and submissions for the record
follow.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
PRESERVING PROSECUTORIAL INDEPENDENCE: IS THE DEPARTMENT OF JUSTICE
POLITICIZING THE HIRING AND FIRING OF U.S. ATTORNEYS?--PART IV
----------
TUESDAY, MAY 15, 2007
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:07 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Charles E.
Schumer, presiding.
Present: Senators Leahy, Kohl, Feinstein, Feingold,
Schumer, Cardin, Whitehouse, and Specter.
OPENING STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR
FROM THE STATE OF NEW YORK
Senator Schumer. This hearing will come to order. I have a
brief opening statement, and I am sure Senator Specter does,
and then we will get right into the questions.
First, I want to thank and commend Chairman Leahy for his
continued leadership on the critically important issue of the
politicization of the Justice Department. This is our
Committee's fifth hearing in 4 months focusing on the mass
firing of almost 10 percent of our country's top Federal
prosecutors. At our last hearing, on April 19th, Attorney
General Gonzales attempted to justify the dismissals, explain
his role, and put the matter behind him. He failed miserably in
that attempt.
Indeed, 4 weeks later, the dismissals remain unexplained.
The Attorney General's role is murkier than ever, and with each
new revelation, retraction, and resignation, the issue remains
planted on the front pages, hobbling the Department's ability
to get its important work done.
Let me briefly review some of the developments since the
Attorney General's ill-fated appearance before this Committee
on April 19th.
Since April 19th, the former Deputy Attorney General, who
is here today, has contradicted other DOJ officials by
testifying that most of the fired U.S. Attorneys performed
well. We will be hearing more about that today.
Since April 19th, former Missouri U.S. Attorney Todd Graves
has come forward to say that he was also asked to resign in
2006. That brings the number of dismissals to at least nine,
and counting, not the eight that Mr. Gonzales testified to. We
will be hearing more about that situation when the Committee
considers authorizing Chairman Leahy to subpoena Mr. Graves and
his replacement, Bradley Schlozman.
Since April 19th, we have learned that a political
corruption case involving Republicans in Arizona may have been
slow-walked until after the 2006 election, as the Wall Street
Journal has reported. U.S. Attorney Paul Charlton's unhappiness
with the pace of approvals from Washington may have led to his
ouster. We will be hearing more about that if and when the
Department responds to our requests for information and
documents.
And since April 19th, we have learned that one of the
Attorney General's top advisers, Monica Goodling, may have been
doing the unthinkable: imposing a political and ideological
litmus test in the hiring of career-level prosecutors and
Department lawyers. We will be hearing more about that when Ms.
Goodling soon testifies under a grant of immunity.
And, of course, just yesterday we learned of the latest and
most high-ranking casualty of the current imbroglio. Mr.
Comey's successor to the No. 2 position at the Department, Paul
McNulty, announced his resignation.
The Attorney General could almost wallpaper his office with
the resignation letters of those whom he was supposed to be
supervising. The majority of people in his top circle are now
no longer at the Justice Department. Kyle Sampson, who was
responsible for putting together the final firing list, has
resigned. Monica Goodling, who helped with the list and served
as the Department's liaison to the White House, has resigned.
Mike Battle, who was ordered to fire seven U.S. Attorneys last
December 7th, has resigned. And, of course, now the Deputy
Attorney General himself has decided to resign.
I heard today that Attorney General Gonzales was trying to
assign blame to Paul McNulty for the firings of the U.S.
Attorneys, saying that he relied on McNulty's advice. That is
ironic, because Paul McNulty came clean with this Committee and
gave us some valuable information, while the Attorney General
stonewalled.
The Attorney General is trying to make Mr. McNulty into the
next Scooter Libby, but we all know the buck stops with the
Attorney General. Mr. Gonzales said in this hearing room that
he accepts responsibility for the firings. Well, he should live
up to his words and not keep pointing the finger today at Mr.
McNulty.
There has long been reason to be concerned about Attorney
General Gonzales. Given his close connection with the White
House and his apparent misconception of his current role, he
seems to many in this country to embody a disrespect for the
rule of law and intolerance of independence at the Justice
Department. He has presided over a Department where being a
``loyal Bushie'' seems to be more important than being a
seasoned professional, where what the White House wants is more
important than what the law requires or what prudence dictates.
The current scandal merely crystallizes this problem,
namely, that loyalty to the White House trumps allegiance to
the law, the truth, and common sense. For example, Attorney
General Gonzales's former chief of staff has testified that one
of the principal reasons the AG was upset after listening to
Mr. McNulty's testimony on February 6th was that Mr. McNulty
had talked too much about the White House's role in appointing
Karl Rove's deputy as U.S. Attorney in Arkansas. Specifically,
Mr. Sampson said Gonzales was upset that McNulty had ``put so
much emphasis on the White House's role in Griffin being
promoted in favor of Cummins.'' Gonzales was upset because Mr.
McNulty ``had really brought the White House's role in Griffin
into the public sphere.''
So it appears that the Attorney General was apparently not
upset that Mr. McNulty had overstated the White House's role or
misstated that role. He was only upset that he had exposed it.
And now it appears that Mr. McNulty is gone because of it.
We have only begun to understand the White House's role in
the firings and the Attorney General's role in accomplishing
the White House's bidding. So far, however, we know this at
least: It was the White House that initially raised the
prospect of firing all 93 U.S. Attorneys. It was the White
House that promoted the idea of removing Bud Cummins in favor
of a former aid to Karl Rove. It was the White House that was
upset at the Department's belated rejection of a plan to bypass
home-State Senators in Arkansas to keep Tim Griffin installed
indefinitely as U.S. Attorney. It was the White House that had
the best opportunity to correct the record of its own
involvement in the firing in a March 5th meeting attended by
Karl Rove before Mr. Moschella gave incomplete testimony to
Congress. It was the White House that entertained complaints
from Republican Party officials about David Iglesias which
apparently led to his ouster. It was the White House that had
brought overblown complaints about voter fraud prosecutions to
the attention of the Justice Department.
There will be time for us to hear from those White House
witnesses who can shed light on what transpired here, and I
hope the day comes soon.
Senator Specter.
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Senator Specter. Well, thank you, Mr. Chairman.
I join in the welcome of you, Mr. Comey. It is ironic in a
sense that the former Deputy Attorney General should be with
the Judiciary Committee today on the same day that we learn of
the resignation of the present Deputy Attorney General.
Earlier today, I wrote to Deputy Attorney General Paul
McNulty congratulating him on his service to the Department of
Justice and wishing him well in his new career. I did not say
in the note to him what I am about to say, that I think he
found it difficult, really impossible, to continue to serve in
the Department of Justice as a professional, which Paul McNulty
is, because it is embarrassing for a professional to work for
the Department of Justice today.
We had the Attorney General before at a hearing. The
testimony he gave was hard to understand, incredible in a
sense, to say that he was not involved in discussions and not
involved in deliberations when his three top Deputies said he
was and the documentary evidence supported that. It is the
decision of Mr. Gonzales as to whether he stays or goes, but it
is hard to see how the Department of Justice can function and
perform its important duties with Mr. Gonzales remaining where
he is. And beyond Mr. Gonzales' decision, it is a matter for
the President as to whether the President will retain the
Attorney General or not.
I think that the operation of the executive branch is the
decision of the President, and I do not want him telling me how
to vote in the Senate on separation of powers, and I am not
going to tell him or make a recommendation to him as to what he
ought to do with Mr. Gonzales. But I think the resignation of
Mr. McNulty is another significant step and evidence that the
Department really cannot function with the continued leadership
or lack of leadership of Attorney General Gonzales.
As I view the situation, we really do not know yet what has
happened, whether it is politicization, whether it is an
ideological bent, or what. There is no doubt that the President
has the authority to fire all the Attorneys General--pardon
me--authority to fire the Attorney General. The Freudian slips
are sometimes more revealing than the planned statements. The
President does have the authority to replace all of the 93 U.S.
Attorneys, as President Clinton did when he took office. And
prosecutions for voter fraud are very, very important. When I
was district attorney of Philadelphia, I prosecuted both
Republicans and Democrats for voter fraud. They have a lot of
it in Philadelphia.
In 1972, the Democrats and Republicans made a deal in South
Philadelphia, a spot where many deals are made, to give the
Republicans the top of the ticket, President Nixon running for
re-election, and the Democrats the rest of the ticket. A common
pleas judge signed in at City Hall at 6 a.m. that morning, as
evidenced by the registry roll, issuing injunctions barring all
of the McGovern poll watchers from the polling places. He was
prosecuted, as were many other top city officials.
So voter fraud prosecutions are very, very important, but
you cannot bring a prosecution unless you have a case. And now
we have to determine if there was chicanery, whether there were
efforts that vote fraud prosecutions or investigations were
brought when there was no basis for doing so.
It may well be that when we get to the end of the rainbow,
we will find the explanation may be as simple as outright
incompetence. Outright incompetence. To consider firing Peter
Fitzgerald, which is what Kyle Sampson testified to, is
patently ridiculous.
It is my hope that we will finish these investigations soon
because the continuing investigations are a harm to the--we
have to do our job. The sooner we finish, the sooner the
Department of Justice can return to its work. If we had a new
Attorney General and concluded this investigation and made our
findings public, it would be very important because those U.S.
Attorneys perform enormously important functions of fighting
drugs and crime and terrorism and the administration of both
civil and criminal justice in this country.
I am glad to see you here today, Mr. Comey, because I know
you can shed some additional light on this important subject.
Thank you, Mr. Chairman.
Senator Schumer. Thank you, Senator Specter.
It is now my privilege to introduce our witness today,
James B. Comey. He is almost a man who needs no introduction.
He is well known to this Committee, which has twice favorably
considered his nomination for important offices--first for the
U.S. Attorney in the Southern District of New York in 2002,
then as Deputy Attorney General of the United States in 2003.
Mr. Comey was educated at the College of William and Mary and
the University of Chicago Law School. After law school, he
served as a law clerk for then U.S. District Judge John M.
Walker, Jr., in Manhattan. After that, he spent most of the
next 20 years as a dedicated public servant in the Justice
Department.
Besides serving ably as U.S. Attorney and Deputy Attorney
General, Mr. Comey earned a reputation as a hard-nosed
prosecutor in a number of high-profile and important cases,
including the Khobar Towers terrorist bombing case arising out
of the June 1996 attack on a U.S. military facility in Saudi
Arabia in which 19 airmen were killed. Mr. Comey is currently
the Senior Vice President and General Counsel of the Lockheed
Martin Corporation.
Now, I know it is not easy for you, Mr. Comey, to be here
and talk about some of the recent travails of the Department
which you hold so dear. I especially appreciate Mr. Comey's
coming to testify here without the formality of a subpoena. In
order to secure Mr. Comey's presence, I would have moved for
consideration of a subpoena by the Committee, but I am glad
that was not necessary because of your cooperation.
As far as I am concerned, when the Justice Department lost
Jim Comey, it lost a towering figure, and I do not say that
because he stands 6 feet, 8 inches tall. When Jim left the
Department, we lost a public servant of the first order, a man
of unimpeachable integrity, honesty, character, and
independence.
Now I would like to administer the oath of office. Would
you please rise? Oh, sorry. I wish we were administering the
oath of office.
[Laughter.]
Senator Schumer. The oath. 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?
Mr. Comey. I do.
Senator Schumer. Thank you. OK. We are going to get right
into the questioning because Mr. Comey does not have an opening
statement.
As I said in my opening remarks, many have been concerned
that Alberto Gonzales has made the Justice Department a mere
extension of the White House, where independence takes a back
seat to service to the White House, where the rule of law takes
a back seat to the political needs of the President's party.
Before we get to the other issues, I want to go back to an
incident from the time that Mr. Gonzales served as White House
Counsel. There have been media reports describing a dramatic
visit by Alberto Gonzales and Chief of Staff Andrew Card to the
hospital bed of John Ashcroft in March 2004, after you, as
Acting Attorney General, decided not to authorize a classified
program.
First, can you confirm that a nighttime hospital visit took
place?
Mr. Comey. Yes, I can.
Senator Schumer. OK. Can you remember the date and the day?
Mr. Comey. Yes, sir; very well. It was Wednesday, March the
10th, 2004.
Senator Schumer. And how do you remember that date so well?
Mr. Comey. This was a very memorable period in my life,
probably the most difficult time in my entire professional
life, and that night was probably the most difficult night of
my professional life. So it is not something I forget.
Senator Schumer. OK. Were you present when Alberto Gonzales
visited Attorney General Ashcroft's bedside?
Mr. Comey. Yes.
Senator Schumer. And am I correct that the conduct of Mr.
Gonzales and Mr. Card on that evening troubled you greatly?
Mr. Comey. Yes.
Senator Schumer. OK. Let me go back and take it from the
top. You rushed to the hospital that evening. Why?
Mr. Comey. I am only hesitating because I need to explain
why.
Senator Schumer. Please. I will give you all the time you
need, sir.
Mr. Comey. I have actually thought quite a bit over the
last 3 years about how I would answer that question if it was
ever asked, because I assumed that at some point I would have
to testify about it.
The one thing I am not going to do and be very, very
careful about is because this involved a classified program, I
am not going to get anywhere near classified information. I
also am very leery of and will not reveal the content of advice
I gave as a lawyer or deliberations I engaged in. I think it is
very important for the Department of Justice that someone who
held my position not to do that.
Senator Schumer. In terms of privilege.
Mr. Comey. Yes.
Senator Schumer. Understood.
Mr. Comey. Subject to that, I--and I am uncomfortable
talking about this, but I--
Senator Schumer. I understand.
Mr. Comey.--will answer the question. To understand what
happened that night, I kind of have got to back up about a
week.
Senator Schumer. Please.
Mr. Comey. In the early part of 2004, the Department of
Justice was engaged--the Office of Legal Counsel under my
supervision--in a re-evaluation, both factually and legally, of
a particular classified program. And it was a program that was
renewed on a regular basis and required a signature by the
Attorney General certifying to its legality. And I remember the
precise date. The program had to be renewed by March the 11th,
which was a Thursday, of 2004. And we were engaged in a very
intensive re-evaluation of the matter, and a week before that
March 11th deadline, I had a private meeting with the Attorney
General for an hour, just the two of us, and I laid out for him
what we had learned and what our analysis was of this
particular matter. And at the end of that hour-long private
session, he and I agreed on a course of action, and within
hours he was stricken and taken very, very ill.
Senator Schumer. You thought something was wrong with how
it was being operated or administered or overseen.
Mr. Comey. Yes, we had concerns as to our ability to
certify its legality, and which was our obligation for the
program to be renewed. The Attorney General was taken that very
afternoon to George Washington Hospital where he went into
intensive care and remained there for over a week, and I became
the Acting Attorney General. And over the next week,
particularly the following week, on Tuesday we communicated to
the relevant parties, at the White House and elsewhere, our
decision that as Acting Attorney General I would not certify
the program as to its legality and explained our reasoning in
detail, which I will not go into here, nor am I confirming it's
any particular program.
That was Tuesday that we communicated that. The next day
was Wednesday, March the 10th, the night of the hospital
incident, and I was headed home at about 8 o'clock that
evening. My security detail was driving me, and I remember
exactly where I was, on Constitution Avenue, and got a call
from Attorney General Ashcroft's chief of staff telling me that
he had gotten a call--
Senator Schumer. What is his name?
Mr. Comey. David Ayres. That he had gotten a call from Mrs.
Ashcroft from the hospital. She had banned all visitors and all
phone calls, so I had not seen him or talked to him because he
was very ill. And Mrs. Ashcroft reported that a call had come
through, and that as a result of that call, Mr. Card and Mr.
Gonzales were on their way to the hospital to see Mr. Ashcroft.
Senator Schumer. Do you have any idea who that call was
from?
Mr. Comey. I have some recollection that the call was from
the President himself, but I don't know that for sure. It came
from the White House, and it came through, and the call was
taken in the hospital. So I hung up the phone, immediately
called my chief of staff, told him to get as many of my people
as possible to the hospital immediately. I hung up, called
Director Mueller, with whom I had been discussing this
particular matter and who had been a great help to me over that
week and told him what was happening. He said, ``I will meet
you at the hospital right now.'' Told my security detail that I
needed to get to George Washington Hospital immediately. They
turned on the emergency equipment and drove very quickly to the
hospital.
I got out of the car and ran up--literally ran up the
stairs with my security detail--
Senator Schumer. What was your concern? You were in
obviously, a huge hurry.
Mr. Comey. I was concerned that, given how ill I knew the
Attorney General, there might be an effort to ask him to
overrule me when he was in no condition to do that.
Senator Schumer. Right. OK.
Mr. Comey. I was worried about him, frankly. So I raced to
the hospital room, entered, and Mrs. Ashcroft was standing by
the hospital bed. Mr. Ashcroft was lying down in the bed. The
room was darkened. And I immediately began speaking to him,
trying to orient him as to time and place, and tried to see if
he could focus on what was happening. And it wasn't clear to me
that he could. He seemed pretty bad off.
Senator Schumer. At that point it was you, Mrs. Ashcroft,
and the Attorney General, and maybe medical personnel in the
room, no other Justice Department government officials.
Mr. Comey. Just the three of us at that point. I tried to
see if I could help him get oriented. As I said, it was not
clear that I had succeeded. I went out in the hallway, spoke to
Director Mueller by phone. He was on his way. I handed the
phone to the head of the security detail, and Director Mueller
instructed the FBI agents present not to allow me to be removed
from the room under any circumstances. And I went back in the
room. I was shortly joined by the head of the Office of Legal
Counsel, Assistant Attorney General Jack Goldsmith, and a
senior staffer of mine who had worked on this matter, and the
Associate Deputy Attorney General. So the three of us Justice
Department people went in the room. I sat down--
Senator Schumer. Can you just give us the names of the two
other people?
Mr. Comey. Jack Goldsmith, who was the Assistant Attorney
General, and Patrick Philbin, who was Associate Deputy Attorney
General. I sat down in an armchair by the head of the Attorney
General's bed. The two other Justice Department people stood
behind me. Mrs. Ashcroft stood by the bed holding her husband's
arm, and we waited. And it was only a matter of minutes that
the door opened and in walked Mr. Gonzales, carrying an
envelope, and Mr. Card. They came over and stood by the bed,
greeted the Attorney General very briefly, and then Mr.
Gonzales began to discuss why they were there, to seek his
approval for a matter, and explained what the matter was, which
I will not do.
And Attorney General Ashcroft then stunned me. He lifted
his head off the pillow and, in very strong terms, expressed
his view of the matter, rich in both substance and fact, which
stunned me, drawn from the hour-long meeting we had had a week
earlier, and in very strong terms expressed himself, and then
laid his head back down on the pillow, seemed spent, and said
to them, ``But that doesn't matter''--and then--
Senator Schumer. But he expressed his reluctance or that he
would not sign the statement that they give the authorization
that they had asked. Is that right?
Mr. Comey. Yes. And as he laid back down, he said, ``But
that doesn't matter because I'm not the Attorney General.
There's the Attorney General.'' And he pointed to me. I was
just to his left.
The two men did not acknowledge me. They turned and walked
from the room. And within just a few moments after that,
Director Mueller arrived. I told him quickly what had happened.
He had a brief--memorable, brief exchange with the Attorney
General, and then we went outside in the hallway.
Senator Schumer. OK. Now, just a few more points on that
meeting. First, am I correct that it was Mr. Gonzales who did
just about all of the talking, Mr. Card said very little?
Mr. Comey. Yes, sir.
Senator Schumer. OK. And they made it clear that there was
in this envelope an authorization that they hoped Mr. Ashcroft,
Attorney General Ashcroft, would sign?
Mr. Comey. In substance. I don't know exactly the words,
but it was clear that's what the envelope was.
Senator Schumer. And the Attorney General was--what was his
condition? I mean, he had--as I understand it, he had
pancreatitis; he was very, very ill, in critical condition, in
fact?
Mr. Comey. He was very ill. I don't know how the doctors
graded his condition. This was--this would have been his sixth
day in intensive care. And as I said, I was shocked when I
walked in the room, and very concerned, as I tried to get him
to focus.
Senator Schumer. Right. OK. Let's continue. What happened
after Mr. Gonzales and Mr. Card left? Did you have any contact
with them in the next little while?
Mr. Comey. While I was talking to Director Mueller, an
agent came up to us and said that I had an urgent call in the
command center, which was right next door. They had Attorney
General Ashcroft in the hallway by himself, and it was an empty
room next door that was the command center. They said it was
Mr. Card wanting to speak to me.
I took the call. Mr. Card was very upset and demanded that
I come to the White House immediately. I responded that after
the conduct I had just witnessed, I would not meet with him
without a witness present. He replied, ``What conduct? We were
just there to wish him well.'' I said again, ``After what I
just witnessed, I will not meet with you without a witness, and
I intend that witness to be the Solicitor General of the United
States.''
Senator Schumer. That would be Mr. Olson.
Mr. Comey. Yes, sir. Ted Olson. And, ``Until I can connect
with Mr. Olson, I am not going to meet with you.'' He asked
whether I was refusing to come to the White House. I said,
``No, sir, I'm not. I'll be there. I need to go back to the
Department of Justice first.'' And then I reached out through
the command center for Mr. Olson, who was at a dinner party.
And Mr. Olson and the other leadership of the Department of
Justice immediately went to the Department, where we sat down
together in a conference room.
Senator Schumer. Keep going.
Mr. Comey. And talked about what we were going to do, and
at about 11 o'clock that night--this evening had started at
about 8 o'clock when I was on my way home. At 11 o'clock that
night, Mr. Olson and I went to the White House together.
Senator Schumer. Just before you get there, you told Mr.
Card that you were very troubled by the conduct from the White
House and that is why you wanted Mr. Olson to accompany you.
Without giving any of the details, which we totally respect in
terms of substance, just tell me why. What did you tell him
that so upset you? Or if you did not tell him, just tell us.
Mr. Comey. I was very upset. I was angry. I thought I had
just witnessed an effort to take advantage of a very sick man
who did not have the powers of the Attorney General because
they had been transferred to me. I thought he had conducted
himself, and I said to the Attorney General, in a way that
demonstrated a strength I had never seen before, but still I
thought it was improper. And it was for that reason I thought
there ought to be somebody with me if I am going to meet with
Mr. Card.
Senator Schumer. All right. Can you tell us a little bit
about the discussion at the Justice Department when all of you
convened? I guess it was that night.
Mr. Comey. Yes, I don't think it's appropriate for me to go
into the substance of it. We discussed what to do. I recall the
Associate Attorney General being there, the Solicitor General,
the Assistant Attorney General in charge of the Office of Legal
Counsel, senior staff of the Attorney General, senior staff of
mine, and we just--I don't want to reveal the substance of
those discussions.
Senator Schumer. We don't want you to reveal the substance.
They all thought what you were doing was the right thing, I
presume.
Mr. Comey. I presume. I didn't ask people, but I felt like
we were a team. We all understood what was going on, and we
were trying to do what was best for the country and the
Department of Justice. But it was a very hard night.
Senator Schumer. OK. And then did you meet with Mr. Card?
Mr. Comey. I did. I went with Mr. Olson, driving--my
security detail drove us to the White House. We went into the
West Wing. Mr. Card would not allow Mr. Olson to enter his
office. He asked Mr. Olson to please sit outside in his sitting
area. I relented and went in to meet with Mr. Card alone. We
met, had a discussion, which was much more--much calmer than
the discussion on the telephone. After I don't remember how
long, 10 or 15 minutes, Mr. Gonzales arrived and brought Mr.
Olson into the room, and the four of us had a discussion.
Senator Schumer. OK. And were you and Mr. Card still in a
state of anger at one another at that meeting, or was it a
little calmer, and why?
Mr. Comey. Not that we showed. It was much more civil than
our phone conversation. Much calmer.
Senator Schumer. Why do you think?
Mr. Comey. I don't know. I mean, I had calmed down a little
bit. I'd had a chance to talk to the people I respected. Ted
Olson I respect enormously.
Senator Schumer. Right. OK. Was there any discussion of
resignations with Mr. Card?
Mr. Comey. Mr. Card was concerned that he had heard reports
that there were to be a large number of resignations at the
Department of Justice.
Senator Schumer. OK. And the conversations, the issue,
whatever it was, was not resolved.
Mr. Comey. Correct. We communicated about it. I
communicated against the Department of Justice's view on the
matter. And that was it.
Senator Schumer. Right. And you stated that the next day,
Thursday, was the deadline for reauthorization of the program.
Is that right?
Mr. Comey. Yes, sir.
Senator Schumer. OK. Can you tell us what happened the next
day?
Mr. Comey. The program was reauthorized without us, without
a signature from the Department of Justice attesting as to its
legality. And I prepared a letter of resignation intending to
resign the next day, Friday, March the 12th.
Senator Schumer. And that was the day, as I understand it,
of the Madrid train bombings.
Mr. Comey. Thursday, March 11th, was the morning of the
Madrid train bombings.
Senator Schumer. And so obviously people were very
concerned with all of that.
Mr. Comey. Yes. It was a very busy day in the
counterterrorism aspect.
Senator Schumer. And yet, even in light of that, you still
felt so strongly that you drafted a letter of resignation.
Mr. Comey. Yes.
Senator Schumer. OK. And why did you decide to resign?
Mr. Comey. I just believed--
Senator Schumer. Or to offer your resignation, is a better
way to put it.
Mr. Comey. I believed that I couldn't--I couldn't stay if
the administration was going to engage in conduct that the
Department of Justice had said had no legal basis. I just
simply couldn't stay.
Senator Schumer. All right. OK. Now, let me just ask you
this, and this obviously is all troubling. As I understand it,
you believed that others were also prepared to resign, not just
you. Is that correct?
Mr. Comey. Yes.
Senator Schumer. OK. Was one of those Director Mueller?
Mr. Comey. I believe so. You'd have to ask him, but I
believe so.
Senator Schumer. You had conversations with him about it?
Mr. Comey. Yes.
Senator Schumer. OK. How about the Associate Attorney
General, Robert McCallum?
Mr. Comey. I don't know. We didn't discuss it.
Senator Schumer. How about your chief of staff?
Mr. Comey. Yes. He was certainly going to go when I went.
Senator Schumer. Right. How about Mr. Ashcroft's chief of
staff?
Mr. Comey. My understanding was that he would go as well. I
should say, to make sure I'm accurate--
Senator Schumer. This is your surmise, not--
Mr. Comey. Yes. I ended up agreeing--Mr. Ashcroft's chief
of staff asked me something that meant a great deal to him, and
that is that I not resign until Mr. Ashcroft was well enough to
resign with me. He was very concerned that Mr. Ashcroft was not
well enough to understand fully what was going on, and he
begged me to wait until--this was Thursday that I was making
this decision--to wait until Monday to give him the weekend to
get oriented enough so that I wouldn't leave him behind, was
his concern.
Senator Schumer. And it was his view that Mr. Ashcroft was
likely to resign as well?
Mr. Comey. Yes.
Senator Schumer. So what did you do when you heard that?
Mr. Comey. I agreed to wait. I said that what I would do is
that Friday would be my last day and Monday morning I would
resign.
Senator Schumer. OK. Anything else of significance relevant
to this line of questioning occur on Thursday, the 11th, that
you can recall?
Mr. Comey. No, not that I recall.
Senator Schumer. Thank you. Now, let's go to the next day,
which was March 12th. Can you tell us what happened then?
Mr. Comey. I went to the Oval Office, as I did every
morning as Acting Attorney General, with Director Mueller to
brief the President and the Vice President on what was going
on, on Justice Department's counterterrorism work. We had the
briefing, and as I was leaving, the President asked to speak to
me, took me in his study, and we had a one-on-one meeting for
about 15 minutes, again, which I will not go into the substance
of. There was a very full exchange, and at the end of that
meeting, at my urging, he met with Director Mueller, who was
waiting for me downstairs. He met with Director Mueller again
privately, just the two of them. And then after those two
sessions, we had his direction to do the right thing, to do
what we--
Senator Schumer. You had the President's direction to do
the right thing.
Mr. Comey. Right. We had the President's direction to do
what we believed, what the Justice Department believed was
necessary to put this matter on a footing where we could
certify to its legality. And so we then set out to do that, and
we did that.
Senator Schumer. OK. So let me just--a few of these--this
is an amazing story, an amazing pattern of fact that you
recall.
Senator Specter. Mr. Chairman, could you give us some idea
when your first round will conclude?
Senator Schumer. As soon as I ask a few questions here.
Fairly soon. Yes, and, Senator Specter, you will get the same
amount of time. I thought with Mr. Comey's telling what
happened, although I think I might just--
Senator Specter. Just may the record show that you are now
16 minutes and 35 seconds over the 5 minutes, and--
Senator Schumer. I think the record will show it.
Senator Specter. Well, it does now.
Senator Schumer. OK. Thank you. And I think most people
would think that those 16:35 minutes were worth hearing.
Senator Specter. Well, Mr. Chairman, we do have such a
thing as a second round, and there are a lot of Senators
waiting.
Senator Schumer. Yes, OK.
Let me ask you these few questions--
Senator Specter. Including a Republican.
Senator Schumer. I am glad you are here, Senator Specter. I
know you are concerned with this issue.
Senator Specter. Alone, but here.
[Laughter.]
Senator Schumer. Let me ask you this: So, in sum, it was
your belief that Mr. Gonzales and Mr. Card were trying to take
advantage of an ill and maybe disoriented man to try and get
him to do something that many at least in the Justice
Department thought was against the law. Is that a correct
summation?
Mr. Comey. I was concerned that this was an effort to do an
end run around the Acting Attorney General and to get a very
sick man to approve something that the Department of Justice
had already concluded, the Department as a whole, was unable to
be certified as to its legality. And that was my concern.
Senator Schumer. OK. And you also believe--and you had
later conversations with Attorney General Ashcroft when he
recuperated, and he backed your view.
Mr. Comey. Yes, sir.
Senator Schumer. Did you ever ask him explicitly if he
would have resigned had it not come--had it come to that?
Mr. Comey. No.
Senator Schumer. OK. But he backed your view that what was
being done or what was attempting to being done, going around
what you had recommended, was wrong, against the law?
Mr. Comey. Yes, and I already knew his view from the hour
we had spent together going over it in great detail a week
before the hospital incident.
Senator Schumer. And the FBI Director Mueller backed your
view over that of Mr. Gonzales as well. Is that right? In terms
of the--in terms of whether the program could continue to be
implemented the way Counsel Gonzales wanted it to be.
Mr. Comey. The only reason I hesitate is it was never
Director Mueller's job or position to be drawing a legal
conclusion about the program.
Senator Schumer. Right.
Mr. Comey. That he was very supportive to me personally. He
is one of the finest people I have ever met and was a great
help to me when I felt a tremendous amount of pressure and felt
a bit alone at the Department of Justice. But it was not his
role to opine on the legality.
Senator Schumer. How about Jack Goldsmith, the head of the
Office of Legal Counsel? Did he opine on the legality?
Mr. Comey. Yes. He had done a substantial amount of work on
that issue, and it was largely OLC, the Office of Legal
Counsel's work that I was relying upon in drawing my--in making
my decision.
Senator Schumer. OK. Just two other questions. Have you
ever had the opportunity to recall these events on the record
in any other forum?
Mr. Comey. No.
Senator Schumer. OK. And after--
Mr. Comey. I should--
Senator Schumer. Go ahead.
Mr. Comey. I was interviewed by the FBI and discussed these
events in connection with a leak investigation the FBI was
conducting.
Senator Schumer. And you gave them these details then?
Mr. Comey. Yes.
Senator Schumer. Thank you.
Mr. Comey. But not by forum, I've never testified about it.
Senator Schumer. And after you stood your ground in March
of 2004, did you suffer any recriminations or other problems at
the Department?
Mr. Comey. I didn't. I--yeah, I mean, not that I'm aware
of.
Senator Schumer. OK. Well, let me just say this, and then I
will call on Senator Specter, who can have as much time as he
thinks is appropriate. The story is a shocking one, makes you
almost gulp, and I just want to say, speaking for myself, I
appreciate your integrity and fidelity to the rule of law. And
I also appreciate Attorney General Ashcroft's fidelity to the
rule of law as well, as well as the men and women who worked
with you and stuck by you in this.
When we have a situation where the laws of this country,
the rules of law of this country are not respected because
somebody thinks there is a higher goal, we run askew of the
very purpose of what democracy and rule of law are about. And,
again, the story makes me gulp.
Senator Specter.
Senator Specter. May the record now show that we are 21
minutes and 22 seconds beyond the 5-minute allocation, and I
raise it not to in any way suggest that the questioning has not
been very important, but only to suggest that we have a
practice for having a 5-minute round, and it is exceeded on
some occasions. I have only been here 27 years. I cannot
remember it being exceeded by 23 minutes. And we do have second
rounds, and we do have seven Democrats here. It is now 10:48,
and at the start of this hearing, I asked my colleagues among
the Republicans to join me here. I repeat that request now
since it is televised internally, at least, and my colleagues
should know that there are seven Democrats here who will all
have turns asking questions, and it would be appropriate to
have a little balance here if some Republicans would show up to
participate in this hearing. It would be helpful if we had some
balance if some other Republicans would show up to participate
in this hearing.
Mr. Comey, I join Senator Schumer in commending you for
what you did here. The Terrorist Surveillance Program has been
the subject of quite a number of hearings in this Committee,
strenuous efforts to bring the issue before the Foreign
Intelligence Surveillance Court, efforts at changing
legislation. Some of it is now pending, cosponsored by Senator
Feinstein and myself. The matter is wending its way through the
Federal courts and is in the Sixth Circuit now. So this is a
very important substantive matter. And as the Acting Attorney
General, you were doing exactly what you should do in standing
up for your authority and to stand by your guns and to do what
you thought was right.
It has some characteristics of the Saturday Night Massacre
when other officials stood up and they had to be fired in order
to find someone who would--the Deputy Attorney General and
others would not fire the Special Prosecutor. So that was
commendable.
When you finally got to the place where the buck does not
stop, when you got to the President, as I understand your
testimony, the President told you to do what you thought was
right. Is that correct?
Mr. Comey. Yes, sir.
Senator Specter. So the President backed you up and it was
necessary to make changes in the Terrorist Surveillance Program
to get the requisite certification by the Acting Attorney
General, that is, you?
Mr. Comey. I may be being overly cautious, but I am not
comfortable confirming what program it was that this related
to, and it should be clear. The direction--as I said, I met
with the President first, then Director Mueller did, and it was
Director Mueller who carried to me the President's direction to
do what the Department of Justice thinks is right to get this
where the Department believes it ought to be, and we acted on
that direction--
Senator Specter. Director Mueller told you the President
said to do what you thought was right?
Mr. Comey. Correct.
Senator Specter. How about what the President himself told
you?
Mr. Comey. I don't want to get into what--the reason I
hesitate, Senator Specter, is the right thing was done here, in
part--in large part because the President let somebody like me
and Bob Mueller meet with him alone. And if I talk about that
meeting, I worry that the next President who encounters this is
not going to let the next me get close to them to talk about
something this important. So I want to be very careful that I
don't talk about what the President and I talked about.
I met with the President. We had a full and frank
discussion, very informed. He was very focused. Then Director
Mueller met with the President alone. I wasn't there. Director
Mueller carried to me the President's direction that we do what
the Department of Justice wanted done to put this on a sound
legal footing.
Senator Specter. So you met first with the President alone
for 15 minutes?
Mr. Comey. Yes, sir.
Senator Specter. And then Director Mueller met separately
with the President for 15 minutes?
Mr. Comey. I don't remember exactly how long it was. It was
about the same length as my meeting. I went down and waited for
him as he--
Senator Specter. And then Director Mueller, as you have
testified, said to you the President told Director Mueller to
tell you to do what the Department of Justice thought was
right.
Mr. Comey. Correct.
Senator Specter. Well, but you won't say whether the
President told you to do what the Department of Justice said
was right?
Mr. Comey. Yeah, I--
Senator Specter. You are not slicing hair. There is no hair
there.
Mr. Comey. You are a good examiner, and that--
Senator Specter. Well, thank you.
Mr. Comey. Yeah, I--the--the President and I--I don't think
the conversation was finished. We discussed the matter in some
detail, and then I urged him to talk to Bob Mueller about it.
And I don't know the content of Director Mueller's
communications with him except that Director Mueller--the
President didn't give me that--I can answer that question. The
President didn't give me that direction at the end of our 15
minutes.
Senator Specter. He did not?
Mr. Comey. He did not. Instead he said, ``I'll talk to
Director Mueller,'' as I had suggested. Director Mueller came
and met with him. Then Director Mueller came to me and said
that, ``The President told me that the Department of Justice
should get this where it wants to be to do what the Department
thinks is right.'' And I took that mandate and set about to do
that and accomplish that.
Senator Specter. I thought you testified in response to
Senator Schumer's questions that after meeting with the
President for 15 minutes, he told you to do what you thought
was right.
Mr. Comey. If I did, I misspoke, because that direction
came from the President to Director Mueller to me.
Senator Specter. Well, when you had the discussions with
Chief of Staff Card, what did he say to you by way of trying to
pressure you--if, in fact, he did try to pressure you--to give
the requisite certification?
Mr. Comey. Again, I'm reluctant to talk about the substance
of those kinds of deliberative discussions. We discussed--
Senator Specter. I am not asking about the substance,
carefully not. I am going to, but not yet. What did he say
which constituted what you thought was pressure?
Mr. Comey. I don't know that he tried to pressure me other
than to engage me on the merits and to make clear his strong
disagreement with my conclusion.
Senator Specter. So then Mr. Card ultimately left it up to
you to decide whether to give the certification or not?
Mr. Comey. I don't know that he left it up to me. I had
already made a decision and communicated it on that Tuesday
that I was not going to, and that didn't change in the course
of my discussions with Mr. Card.
Senator Specter. Did not change.
Mr. Comey. Did not change.
Senator Specter. Well, he did not threaten to fire you, did
he? I am going to have to lead the witness now, Mr. Comey. I
have not led yet until now. Now I am going to have to lead you.
He did not threaten to fire you.
Mr. Comey. No, he didn't. And Mr. Card, as I said, was very
civil to me in our face-to-face meeting. The only point--
Senator Specter. Well, you can suggest being fired and be
civil about it.
Mr. Comey. Right. Either civilly or uncivilly, he never
suggested that to me.
Senator Specter. Attorney General Gonzales could be fired
in a civil way. No incivility in suggesting you are going to be
replaced as Acting Attorney General.
Well, all right. Then that substance--I do not want to
question you as long as Senator Schumer did, notwithstanding my
rights here. But the long and short of it was he did not
threaten you.
Mr. Comey. No, sir. I didn't feel threatened, nor did he
say anything that I thought could reasonably be read--
Senator Specter. And when you talked to White House Counsel
Gonzales, did he try to pressure you to reverse your judgment?
Mr. Comey. No. He disagreed, again, on the merits of the
decision, and we had engaged on that, had full discussions
about that. But he never tried to pressure me other than to
convince me that I was wrong.
Senator Specter. Well, Mr. Comey, did you have discussions
with anybody else in the administration who disagreed with your
conclusions?
Mr. Comey. Yes, sir.
Senator Specter. Who else?
Mr. Comey. The Vice President.
Senator Specter. Anybody else?
Mr. Comey. Members of his staff.
Senator Specter. Who on his staff?
Mr. Comey. Mr. Addington disagreed with the conclusion, and
I'm sure there are others who disagreed. But--
Senator Specter. Well, I don't want to know who disagreed.
I want to know who told you they disagreed. Addington?
Mr. Comey. Mr. Addington. The Vice President told me that
he disagreed. I don't remember any other White House officials
telling me they disagreed.
Senator Specter. OK. So you have got Card, Gonzales, Vice
President Cheney, and Addington who told you they disagreed
with you.
Mr. Comey. Yes, sir.
Senator Specter. Did the Vice President threaten you?
Mr. Comey. No, sir.
Senator Specter. Did Addington threaten you?
Mr. Comey. No, sir.
Senator Specter. So all these people told you they
disagreed with you. Well, why in this context, when they say
they disagreed with you, and you are standing by your judgment,
would you consider resigning? You were Acting Attorney General.
They could fire you if they wanted to. The President could
replace you. But why consider resigning? You had faced up to
Card and Gonzales and Vice President Cheney and Addington. It
was a difference of opinion. You were the Acting Attorney
General, and that was that. Why consider resigning?
Mr. Comey. Not because of the way I was treated, but
because I didn't believe that as the chief law enforcement
officer in the country I could stay when they had gone ahead
and done something that I had said I could find no legal basis
for.
Senator Specter. When they said you could find no legal
basis for?
Mr. Comey. I had reached a conclusion that I could not
certify--
Senator Specter. Well, all right. So you could not certify
it, so you did not certify it. But why resign? You are standing
up to those men. You are not going to certify it. You are the
Acting Attorney General. That is that.
Mr. Comey. Well, a key fact is that they went ahead and did
it without--the program was reauthorized without my signature
and without the Department of Justice, and so I believed that I
couldn't stay--
Senator Specter. Was the program reauthorized without the
requisite certification by the Attorney General or Acting
Attorney General?
Mr. Comey. Yes.
Senator Specter. So it went forward illegally?
Mr. Comey. Well, that is a complicated question. It went
forward without certification from the Department of Justice as
to its legality.
Senator Specter. But the certification by the Department of
Justice as to legality was indispensable as a matter of law for
the program to go forward. Correct?
Mr. Comey. I believed so.
Senator Specter. Then it was going forward illegally.
Mr. Comey. Well, the only reason I hesitate is--and I'm no
Presidential scholar, but if the determination was made by the
head of the executive branch that some conduct was appropriate,
that determination--and lawful, that determination was binding
upon me, even though I was the Acting Attorney General, as I
understand the law. And so I either had to go along with that
or leave. And I believed that I couldn't stay, and I think
others felt this way as well, that given that something was
going forward that we had said we could not certify as to its
legality.
Senator Specter. Well, I can understand why you would feel
compelled to resign in that context, once there had been made a
decision by the executive branch, presumably by the President,
or by the President because he was personally involved in the
conversations, that you would resign, because something was
going forward which was illegal. The point that I am trying to
determine here is that it was going forward even though it was
illegal.
Mr. Comey. And I know I sound like I'm splitting hairs,
but--
Senator Specter. No, I don't think there is a hair there.
Mr. Comey. Well, something was going forward without the
Department of Justice's certification as to its legality. It's
a very complicated matter, and I am not going to go into what
the program was or what the dimensions of the program--
Senator Specter. Well, you don't have to. If the
certification by the Department of Justice as to the legality
is required as a matter of law, and that is not done and the
program goes forward, it is illegal. How could you contest
that, Mr. Comey?
Mr. Comey. The reason I hesitate is I don't know that the
Department of Justice's certification was required by statute--
in fact, it was not, as far as I know--or by regulation, but
that it was the practice in this particular program when it was
renewed that the Attorney General sign off as to its legality.
There was a signature line for that, and that was the signature
line on which it was adapted for me as the Acting Attorney
General and that I would not sign.
So it wasn't going forward in violation of any, so far as I
know, statutory requirement that I sign off, but it was going
forward even though I had communicated I cannot approve this as
to its legality. And given that, I just couldn't in good
conscience stay.
Senator Specter. Well, Mr. Comey, on a matter of this
importance, didn't you feel it necessary to find out if there
was a statute which required your certification or a regulation
which required your certification of something more than just a
custom?
Mr. Comey. Yes, Senator, and I--
Senator Specter. Did you make that determination?
Mr. Comey. Yes, and I may have understated my knowledge.
I'm quite certain that there wasn't a statute or regulation
that required it, but that it was the way in which this matter
had operated since the beginning. I don't--I think the
administration had sought the Department of Justice, the
Attorney General's certification as to form and legality, but
that I didn't know and still don't know of a source for that
required in statute or regulation.
Senator Specter. OK. Then it wasn't illegal.
Mr. Comey. That's why I hesitated when you used the word
``illegal.'' I--
Senator Specter. Well, OK. Now I want your legal judgment.
You are not testifying that it was illegal. Now, as you have
explained that there is no statute or regulation but only a
matter of custom, the conclusion is that even though it
violated custom, it is not illegal. It is not illegal to
violate custom, is it?
Mr. Comey. Not so far as I'm aware.
Senator Specter. OK. So what the administration, executive
branch, the President did was not illegal.
Mr. Comey. I'm not saying--again, that's why I kept
avoiding using that term. I have not reached a conclusion that
it was. The only conclusion I reached is that I could not,
after a whole lot of hard work, find an adequate legal basis
for the program.
Senator Specter. OK. Well, now I understand why you didn't
say it was illegal. What I don't understand is why you now
won't say it was legal.
Mr. Comey. Well, I suppose as an argument--as I said, I'm
not a Presidential scholar--that because the head of the
executive branch determined that it was appropriate to do, that
that meant for purposes of those in the executive branch it was
legal. I disagreed with that conclusion. Our legal analysis was
that we couldn't find an adequate legal basis for aspects of
this matter, and for that reason I couldn't certify it to its
legality.
Senator Specter. Well, OK. I will not ask you--I have a
rule never to ask the same question more than four times, so I
will not ask you again whether necessarily from your testimony
the conclusion is that what the President did was legal, not
illegal.
Let me move on. I only have 35 minutes left.
[Laughter.]
Senator Specter. How long did you continue to serve as
Deputy Attorney General after this incident?
Mr. Comey. Until August of 2005, so almost a year and a
half, 16 months.
Senator Specter. And during the course of that continued
service, you got along OK with the President and the Vice
President and Card and Addington and all the rest of those
fellows in the White House?
Mr. Comey. I think so. I mean, we didn't have much contact
with them other than professional matters, but I think so.
Senator Specter. But they weren't out to get you because
you stood up to them.
Mr. Comey. I hope not. I don't have any reason to--
Senator Specter. Well, never mind hoping. They didn't do
anything to be out to get you or to make your life
uncomfortable or make it difficult for you to perform your
duties as Deputy Attorney General.
Mr. Comey. No.
Senator Specter. There was some speculation that--well, I
will eliminate the word ``speculation.'' Did you have any sense
that you were not considered to be permanent Attorney General
on Mr. Ashcroft's departure because of your having stood up to
the White House on this issue?
Mr. Comey. No, I don't have any reason to believe I was
ever considered, but I certainly have no reason to believe that
there was any connection between consideration of who would be
the next Attorney General and this matter.
Senator Specter. Well, on this issue, Mr. Comey, I commend
you again. You did exactly the right thing. And I think the
President did the right thing. In effect, he overruled Card and
he overruled Vice President Cheney and he overruled Addington
and he overruled Gonzales, and when it came to him, when it
came to the President's desk where the buck stops, he said to
Mueller to tell you follow your conscience, do the right thing,
and that was done.
Mr. Comey, it is my hope that we will have a closed session
with you to pursue the substance of this matter further,
because your standing up to them is very important, but it is
also very important what you found on the legal issue on this
unnamed subject, which I infer was the Terrorist Surveillance
Program, and you are not going to comment about it. I think you
could. I think you could even tell us what the legalisms were.
It does not involve a matter of your advice or what the
President told you, et cetera. But I am going to discuss with
Senator Leahy later and see about pursuing that question to try
to find out about it.
Now, Mr. Comey, on to the subject of the hearing. You have
been reported as commenting on a number of U.S. Attorneys who
were asked to resign that you thought they were doing a good
job. One was U.S. Attorney Daniel Bogden of Nevada. What
judgment do you have as to his capabilities as U.S. Attorney?
Mr. Comey. Dan Bogden was an excellent U.S. Attorney. He
was a career guy who had become U.S. Attorney, and I thought
very highly of him.
Senator Specter. Do you have any insights as to why he was
asked to resign?
Mr. Comey. I don't. I have read things in the paper, but I
certainly have no personal knowledge of why he was asked to
resign. When I left in August of 2005, I couldn't have thought
of a reason why he should be asked to resign.
Senator Specter. And as to John McKay, do you have a
judgment as to the quality, the competency of his performance?
Mr. Comey. Yes. I thought, again, it was excellent in my
experience. I had worked with him, as with the others, as a
peer when I was U.S. Attorney in Manhattan and then as the
Deputy Attorney General. So I had a very positive sense of John
McKay.
Senator Specter. And as to Paul Charlton, Arizona U.S.
Attorney, what is your view as to his competency?
Mr. Comey. The same. I don't want to make it sound like I
love everybody, but I did like him a great deal. He was very
strong.
Senator Specter. Well, since you don't want to sound like
you love everybody, anybody you didn't love who you thought
should have been replaced?
[Laughter.]
Chairman Leahy. Outside of members of the Committee.
Mr. Comey. There was one U.S. Attorney--
Senator Specter. I would like to ask you about that now
that Senator Leahy has opened the door. Which members of the
Committee don't you love?
[Laughter.]
Mr. Comey. You are asking Senator Leahy, I hope.
Senator Specter. Start with the Chairman.
Chairman Leahy. Careful. We may be running the clock back
again.
Senator Specter. What did you think of Charlton?
Mr. Comey. Very strong. Very strong U.S. Attorney.
Senator Specter. And David Iglesias, U.S. Attorney for New
Mexico?
Mr. Comey. Same thing. I had dealt with him quite a bit,
both as a peer and as his supervisor and had a high opinion of
him. I thought he did a very good job.
Senator Specter. What did you make of Kyle Sampson's
testimony that he had recommended calling for the resignation
of Peter Fitzgerald.
Mr. Comey. Patrick Fitzgerald.
Senator Specter. Patrick Fitzgerald. Peter Fitzgerald was
the Senator.
Chairman Leahy. No relation.
Senator Specter. No relation.
Mr. Comey. I only know about that what I read in the
newspaper. I was surprised by it, would be a fair description.
Senator Specter. What did you think of the competency of
Kyle Sampson?
Mr. Comey. I thought Kyle was very smart. My dealings with
him had always been pleasant, seemed to work very, very hard.
Senator Specter. What did you think of the competency or
smarts of Kyle Sampson after you heard he wanted to ask for the
resignation of Patrick Fitzgerald?
Mr. Comey. Well, I don't think that was an exercise of good
judgment if it's something he really meant. It--
Senator Specter. Can you give us an illustration of an
exercise of good judgment by Kyle Sampson?
I withdraw that question. Could you give us an example of
an exercise of good judgment by Alberto Gonzales?
Let the record show a very long pause.
Mr. Comey. It's hard--I mean, I'm sure there are examples.
I'll think of some. I mean, it's hard when you look back. We
worked together for 8 months.
Senator Specter. That is the famous statement of President
Eisenhower about Vice President Nixon. Say something good. Give
me 2 weeks.
Mr. Comey. In my experience with Attorney General Gonzales,
he was smart and engaged, and I had no reason to question his
judgment during our time together at the Department of Justice.
We had a good working relationship. He seemed to get issues. I
would make a recommendation to him. He would discuss it with me
and make a decision.
As I sit here today, I will probably 5 minutes from now
think of an example, but I did not have reason to question his
judgment as Attorney General.
Senator Specter. Are you sufficiently familiar with what
happened in the issue of the U.S. Attorneys' resignations to
give an evaluation of Attorney General Gonzales' statement that
he was not involved in discussions or deliberations in the
context of being contradicted by three of his top Deputies and
the documentary evidence on the e-mails?
Mr. Comey. I am probably more versed in this than the
average person because I've read what's in the newspaper and
looked at some of the documents online. But I gather he's
corrected that statement that he originally made about not
being involved in deliberations or discussions. But I'm not--I
don't know the facts as well as members of this Committee and
haven't studied it. So I don't think I have a--
Senator Specter. No, I do not think he has corrected that.
I think he continues to say that he was involved in--his words
are ``limited.'' ``Limited.'' That is what he has said. I think
that--and I have said this to Mr. Gonzales privately and
publicly--that if he would tell us what the reasons were for
asking these U.S. Attorneys to resign, that it would shed
considerable light on what is going on here and how the program
got started and what the aims of the program were and what his
involvement was. That can all be--this proceeding is still in
midstream. He can recant all of what he said and come forward.
Well, Mr. Chairman, I am going to yield back the balance of
my 8 minutes. Thank you.
Senator Schumer. Thank you, Mr. Chairman, and you went
about I think a minute more than I did. But it was well spent.
Senator Specter. Oh, no, I did not. I am at 21:35.
Chairman Leahy. So we can get on to others--
Senator Schumer. OK. I just--
Chairman Leahy. I am also--as a member of this Committee,
let me just go back to the time. I am not going to use a great
deal of time so that colleagues--
Senator Specter. Senator Schumer and I did not either,
Senator Leahy.
Chairman Leahy. So that--God love you--so that others here
can.
Just one question comes to mind. Senator Specter spoke to
you about legal or illegal. Did it comply with the FISA law?
Mr. Comey. I have tried, Senator, not to confirm that I am
talking about any particular program. I just don't feel
comfortable in open forum--
Chairman Leahy. OK. Then on that, with that answer, I think
I agree with--if I could have Senator Specter's attention just
for a moment. With that answer--and I can understand. I am well
aware of the program, well aware of what happened, and I can
understand your reluctance, very appropriately, your reluctance
to answer that specifically. We will have a closed-door hearing
on this. Senator Specter and I are about to have a briefing on
aspects of this. I am very, very troubled by what the
Department of Justice is doing today--not on your watch, Mr.
Comey, but what they are doing today. We have several members
of the Intelligence Committee on this Committee on both sides,
and they will also be looking at it.
Mr. Comey, I have a lot of respect for you, but I have less
and less respect for the way the Department of Justice is being
handled today. This is a dysfunctional Department of Justice.
It is being run like a political arm of the White House. That
is highly inappropriate.
I have been here for 32 years. I have seen good Attorneys
General and poor Attorneys General. But I have always thought
that there would at least be the understanding that the
professionals in the Department of Justice have to be allowed
to do a professional job. And I see them being overridden time
and time again.
Now, I realize there are some things you cannot go into in
this session, but you know and I know that the overriding of
the professional judgment of good men and women in that
Department to do things that are not proper. And I think this
is wrong.
One of my first experiences in the Department of Justice
was as a young law clerk working while a student at Georgetown
here, meeting with the then-Attorney General. The then-Attorney
General was as close to the President as anyone could be. It
was his brother. It was Attorney General Robert Kennedy. But I
remember what he said to several of the students who were
there, because he was hoping we were a cadre, because we had
grades and whatnot, he wanted to recruit for the Department of
Justice, and he emphasized over and over again on significant
matters--civil rights, criminal areas, and whatnot--that
neither the White House nor his brother would be allowed to
influence the professional judgment. That always stuck in my
mind, and I have seen that happen over and over again. We saw
it with Elliot Richardson, with Archibald Cox, we saw it with
you. And I am very, very frustrated.
I will not go into further questions because the questions
I do want to ask you will be in closed session. But I hope
somebody will wake up in the White House. It is a terrible,
terrible precedent they are starting. It has started. And I
hope whoever the next President is will make a solemn vow
never--never, never--to allow this politicization of the
Department of Justice because it hurts every one of us. It is
not the Secretary of Justice. It is not a member of the
President's staff that should be running that. It is the
Attorney General of the United States, and this Attorney
General is doing an abysmal job.
Senator Schumer. Thank you, Mr. Chairman.
Senator Kohl--Senator Feinstein was next. I apologize.
Senator Feinstein. Thank you very much, Mr. Chairman, and
thank you very much, Mr. Comey. I read the transcript of your
testimony before the House, and it is clear that you are a very
straight shooter and very well respected. And I for one really
appreciate your point of view.
If I can, I would like to go back to the event in the
hospital room for just a minute. You felt and you were
presented with something that you had to sign to certify a
certain program. That program was initially done outside of the
existing law, which is the Foreign Intelligence Surveillance
Act, which says it is the exclusive authority for all
electronic surveillance.
The President used his Article II powers, he said. He used
the Authorization to Use Military Force as the definitive basis
for his action to essentially move outside the law.
The President said when this all came to light that he
asked that the program be authorized every 45 days or certified
by the Attorney General.
What did you actually have to sign to certify it? What were
you confronted with?
Mr. Comey. Senator, I want to be careful in this forum,
again, that I am not confirming the existence of any particular
program or that this--
Senator Feinstein. I am not asking you to. I am asking you
what piece of paper did you have to sign.
Mr. Comey. It was a signature line on a Presidential order.
Senator Feinstein. All right. And you said that the program
was later changed so that it could be signed, but it went ahead
at that time without your certification on it.
Mr. Comey. Yes.
Senator Feinstein. And what was the elapsed period of time
from that meeting, the denial of DOJ to certify the program,
and the time when it was essentially certified?
Mr. Comey. It was reauthorized on Thursday, March the 11th,
without the Department's--without my signature, without the
Department's approval, and it was the next day, so less than 24
hours later that we received the direction from the President
to make it right. And then we set about--I don't know how
exactly how long it was, over the next few weeks--making
changes so that it accorded with our judgment about what could
be certified as to legality. And so it was really only that
period from Thursday when it was reauthorized until I got the
direction from the President the next day that it operated
outside of the Department of Justice's approval.
Senator Feinstein. So approximately 2 weeks?
Mr. Comey. I don't remember exactly. It was 2 or 3 weeks, I
think, that it took us to get the analysis done and make the
changes that needed to be made.
Senator Feinstein. And then who signed for DOJ?
Mr. Comey. It was either Attorney General Ashcroft or
myself who signed. I may have signed that first one after the
hospital incident.
Senator Feinstein. OK. And you then became satisfied that
the program conformed with what, essentially?
Mr. Comey. That it was operated consistently with the
Office of Legal Counsel's judgment about what was lawful, and
so we were in a position, given OLC's opinion--the Attorney
General and I were in the position to certify the program as to
its legality.
Senator Feinstein. Mr. Chairman, it would be very
interesting if we could obtain those legal opinions, because
the program we are talking about was originally done outside of
law. The Executive order of the President was really the
prevailing authority, but even so, I am a little puzzled
because the program was changed. And I would be very interested
in what the legal advice on that program was, if that would be
possible for us to request.
Senator Schumer. Well, I am sure if the Senator makes the
request, we can make it part of the record.
Senator Feinstein. Fine. I would make that request.
Senator Schumer. I think to the Office of Legal Counsel,
which had already stated its opinion on this particular issue.
Senator Feinstein. Thank you.
If I can, I would like to move on to the United States
Attorneys. To the best of your knowledge, has there been any
time in the history of our country when as many U.S. Attorneys
have been fired at one time?
Mr. Comey. The only other incident I know of was during the
change of administrations from Bush I to President Clinton's
administration.
Senator Feinstein. Which is fairly typical--
Mr. Comey. Right. It was a change-out in--
Senator Feinstein.--with the change, but I am talking
during the term of a President. Has there been any time when a
number of U.S. Attorneys have been selected and summarily fired
without cause?
Mr. Comey. I'm not aware of a similar size removal of U.S.
Attorneys.
Senator Feinstein. Thank you very much.
As you know, we have had the EARS reports. Are you familiar
with those reports?
Mr. Comey. Yes.
Senator Feinstein. And they have described the performance
of U.S. Attorneys, and I gather there is a panel of people that
go in and put these reports together. They have subsequently
been--we have been told that they are very perfunctory. Are
they, in fact, a document that is utilized within DOJ?
Mr. Comey. Oh, yes. They are not perfunctory. They come, a
big team of people--when I was U.S. Attorney in New York, I
think 30 or more people came from all over the country,
experienced people, civil lawyers and prosecutors, and they
basically live with you and your office for a couple of weeks
and go stem to stern, inspect the whole place. There is an out-
briefing. It is very much like an audit by a big accounting
firm except they audit not just your numbers but your conduct
of cases and your priorities. So it is from top to bottom, and
then they issue a detailed report.
Senator Feinstein. Well, let me ask you this question: How
then could they be fired for performance reasons if at least
seven--excuse me, six out of the seven terminated on December
7th had excellent EARS reports?
Mr. Comey. I don't know how--I was not aware at the time I
left in August of 2005 of performance-related issues with most
of these U.S. Attorneys.
Senator Feinstein. And you have said that. You said that
today. You said that in your testimony before the House, and I
appreciate it.
Can you ever remember any discussion where an individual
U.S. Attorney's loyalty or political instincts were questioned?
Mr. Comey. I don't remember ever discussing or having it
discussed in my presence the loyalty or political instincts of
a U.S. Attorney, no.
Senator Feinstein. Now, there was apparently a list put
together, and Mr. Sampson had indicated that he was the
aggregator of the list. He put the list together. But everyone
that we have asked in the higher levels of the Department has
said they did not put the names on the list. Mr. Battle, Mr.
Elston, Mr. Sampson--virtually everyone we have asked has
denied placing a name on that list.
If that is, in fact, the case, where would you surmise the
list would come from?
Mr. Comey. I wouldn't know. I mean, it came from someplace,
but I don't know from where.
Senator Feinstein. I would like to just clear the air with
one thing. You had two meetings with Carol Lam, I believe--one
about the Project Neighborhood program, the other about gun
cases. Were you satisfied with her responses to your questions?
Mr. Comey. Yes. I think I had one meeting that was about
Project Safe Neighborhoods, which was the name given to our gun
program, and I think it was on the telephone. I spoke, I think
by telephone, to each of the ten U.S. Attorneys whose districts
on a per capita basis were at the bottom end of our gun
prosecutions. And I thought she understood. Again, I wasn't
telling her do cases for the sake of doing cases. I was saying
this is important, I think this saves lives, if there is a
difference you can make that the local prosecutors are not
making in your jurisdiction, look for an opportunity to make
it. And she said she got it, and that was the end of it.
Senator Feinstein. Were any of the other ten people with
whom you communicated fired?
Mr. Comey. No. Not to my knowledge.
Senator Feinstein. So if someone had an excellent
performance report, it is very difficult for me to figure out a
reason, other than dissatisfaction with a case they were either
going to file or not file, that the severance is not
performance related. Would that be a fair assumption on my
part?
Mr. Comey. I suppose so. If there's no reasons that are
apparent, performance-related reasons, it's hard to understand
why.
Senator Feinstein. Thank you very much, Mr. Comey. I
appreciate it.
Senator Schumer. Senator Kohl.
Senator Kohl. Thank you, Mr. Chairman.
Mr. Comey, you are a person, of course, who has been very
close to law enforcement in our country for many years, and
obviously you are here today as a person who was the second
ranking person in the Department from 2003 to 2005, and no
question about your concern for the fair administration of
justice in our country, and with the kind of experience you
have, your opinions matter more than the opinions of most
others. And I am sure you have thought about this. Would you
give us your opinion? Would our country be well served if we
could start fresh tomorrow with an Attorney General who is not
in any way as tainted as this present Attorney General? Would
we be better off as a country? You must have an opinion. Would
you care to share that opinion with us?
Mr. Comey. I would very much like not to.
[Laughter.]
Senator Kohl. But would you, please?
Mr. Comey. I would hope--there are a lot of things I miss
about Government. There are a lot of things I love about being
a private citizen. I would hope you wouldn't care what my
opinion is. I appreciate what you said, Senator. I am not here
to dump on Attorney General Gonzales. I--
Senator Kohl. It isn't a question of dumping on. We are
talking about our country and its future and the importance of
law, the importance of the Department of Justice. And you have
been closer than most, and you are here to serve your country.
That is why you are here today. And that is a very important
question, obviously, and your opinion matters much more than
most because of who you are and your experience. And I am
sure--or I presume you do have an opinion. Would you share that
opinion with us today?
Mr. Comey. I do have an opinion, and I would prefer not to
share it. I just am not sure that--it makes me very
uncomfortable to express my opinion about something, especially
now that I'm outside of Government. And I have not followed
this as closely as many people have. I have formulated an
opinion, but I would ask the Senator's indulgence not to make
me give it. I just--I just don't think that's my place.
Senator Kohl. Well, I am concluding--and correct me if I am
incorrect. I am concluding that your unwillingness to express
an opinion that you do--you say that you have is indication
that you believe we would be better served. I think that is a
clear inference from what you are saying.
Mr. Comey. I appreciate that, Senator. If I could, I would
like not to offer that.
Senator Kohl. To me, you have expressed an opinion--I mean,
without having expressed it, you have expressed it.
Mr. Comey, when you testified in the House a few weeks ago,
you were asked about the U.S. Attorney for the Eastern District
of Wisconsin, Steve Biskupic. At that time you said that Mr.
Biskupic was ``an absolutely straight guy.'' When you were
asked whether you knew that Mr. Biskupic was on a list of weak
performers and potentially slated for dismissal, you said, and
I quote, ``No, and I think very highly of him.'' Having had
time to reflect on your testimony, do you have anything to add
to what you said at that time? Do you know why he was put on a
list of weak performers and why he came off the list? Did it
have anything to do with the prosecution of voter fraud cases
that he was taken off the list or the prosecution of Georgia
Thompson, an employee of the Democratic Governor's
administration at that time?
Mr. Comey. I don't know--I don't know from firsthand
knowledge that he was on a list. I can't imagine why he would
be put on a list to be removed. I think very highly of him, as
you quoted. I think he is what you want in a U.S. Attorney. And
I'm not saying that because he is tall and skinny, but he is a
very solid person who is as honest as the day is long, cares
passionately about the independence of the Department of
Justice. I know this from talking to him.
So I can't imagine--I know he's gotten beat on because a
case he prosecuted was reversed in the Seventh Circuit Court of
Appeals. I tried to explain to somebody who asked me about
that, not in a hearing but a private citizen. I said, ``It
happens.'' And it's not an indictment of the good faith of the
prosecutor, of the district judge who denied a motion for a
directed verdict, or the jury that convicted. Sometimes appeals
courts disagree about the inferences to be drawn from the
evidence and reverse a conviction. That doesn't tell you that
the prosecutor is a bad guy. In fact, I know this one, and this
is a good guy.
Senator Kohl. Mr. Comey, yesterday's Washington Post
reported that White House and Republican Party concerns
regarding voter fraud prosecutions were the cause of many of
the U.S. Attorney dismissals. Can you confirm this? During the
time you served as Deputy Attorney General, were you aware of
concerns from the White House that U.S. Attorneys were not
active enough in prosecuting voter fraud cases? Did the White
House exert any effort to encourage the Justice Department to
remove U.S. Attorneys whom it believed were not prosecuting
voter fraud cases vigorously enough?
Mr. Comey. I'm not aware of any issue that came to my
attention regarding voter fraud when I was Deputy Attorney
General, complaints or otherwise.
Senator Kohl. While you served at the Justice Department,
were you aware of any pressure from the White House to bring
voter fraud cases?
Mr. Comey. No, sir.
Senator Kohl. Thank you so much.
Mr. Comey. Thank you, Senator.
Senator Kohl. Mr. Chairman, thank you.
Senator Schumer. Senator Feingold?
Senator Feingold. Mr. Chairman, first I want to praise you
for your questioning. It was very long. I hope you do not make
it a habit. But I will tell you something: I think it was some
of the most important and valuable questioning that I have
heard from a Senator in the years that I have been here, and I
just want to thank you for your leadership on this.
Mr. Comey, I want to commend you for your service, for your
courage, for your testimony, some of the most dramatic
testimony that I have heard in 25 years that I have been a
legislator. Your courage at the time, and today, in defense of
the rule of law is truly admirable. Let me add, your account of
Attorney General Ashcroft is the same. This has been my
experience with Mr. Ashcroft despite our fundamental
differences. And I have had many great disagreements with this
administration. But there is a difference in this
administration between people like you and Attorney General
Ashcroft who do fundamentally respect the rule of law, and many
others who have shown some of the most blatant disrespect for
the rule of law, I think, in American history.
I think it is only fair that we make these distinctions. I
know that is not your purpose in being here, but I simply want
it noted in the record that here is somebody who literally
stood tall for the rule of law, and I praise you for it.
I want to highlight one point you alluded to in answer to a
question from Senator Specter. This reauthorization process and
the need for a certification from the Attorney General was only
an internal control, not a statutory requirement. I think that
that testimony makes it all the more clear that this Committee
must pursue this issue and must be supplied with the relevant
documents. So, Mr. Comey, are you aware of any documents
produced by the White House Counsel's Office with regard to
this program?
Mr. Comey. Not specifically. Not specifically. I don't
remember--
Senator Feingold. You don't recall reviewing any--
Mr. Comey. I don't remember reviewing any from the White
House Counsel's Office that related to this. It is possible,
but I don't remember it.
Senator Feingold. What about documents from the Office of
the Vice President? Do you know if any such documents exist
regarding this program?
Mr. Comey. I don't know.
Senator Feingold. Did Mr. Gonzales or Mr. Card ever
indicate that they were acting on the direction or the
knowledge of the President when they came to see the Attorney
General in the hospital?
Mr. Comey. Not that I recall. I don't think so.
Senator Feingold. They never stated that, to your
recollection?
Mr. Comey. I don't think so.
Senator Feingold. Did something in particular occur that
led to this issue coming to a head in March of 2004? Why not at
an earlier point in connection with one of the earlier
reauthorizations?
Mr. Comey. It was simply the pace at which the work went on
in the Office of Legal Counsel. We had a new Assistant Attorney
General as of, I think, October--I think October of 2003, and
there were a number of issues that he was looking at, and this
re-evaluation of this particular program was among those
issues. And the work got done in the beginning part of 2004,
and that's what brought it to a head with this particular--
Senator Feingold. So it was at this point that the office
was able to get around to these concerns, these legal concerns
and these internal concerns?
Mr. Comey. I think that's right. Concerns had reached the
ears of the new Assistant Attorney General, and he undertook an
examination, with my approval and Attorney General Ashcroft's
approval, of this matter.
Senator Feingold. You made quite a moving farewell address
to your colleagues in the Department in August of 2005. In it
you thanked some of your colleagues for being ``people
committed to getting it right and to doing the right thing,
whatever the price,'' and stated that some of those people
``did pay a price for their commitment to right.'' What were
you referring to?
Mr. Comey. I had in mind one particular senior staffer of
mine who had been in the hospital room with me and had been
blocked from promotion, I believed as a result of this
particular matter.
Senator Feingold. So you were, in fact, referring to this
incident in the hospital and somebody who was there and
consequences that accrued to this person as a result of that?
Mr. Comey. Yes.
Senator Feingold. Is that Mr. Goldsmith?
Mr. Comey. No. It's Mr. Philbin.
Senator Feingold. Thank you, Mr. Chairman.
Senator Schumer. Senator Specter wants to make a concluding
statement.
Senator Specter. Well, I just wanted to confirm with you,
Mr. Chairman, that we are not going to have a second round.
Senator Schumer. We are not going to have--I have one
question, which I showed you, and that is it.
Senator Specter. There is a vote scheduled in 5 minutes, so
I am going to go to the floor at this point. And I conclude by
thanking you for your service, Mr. Comey, and I thank you for
standing up. That is in the finest tradition of the Department
of Justice, and I hope we can reinstate it.
Thank you.
Mr. Comey. Thank you, Senator.
Senator Schumer. Well said.
Senator Whitehouse?
Senator Whitehouse. Thank you, Chairman.
Mr. Comey, good morning. It is still morning.
Mr. Comey. Good morning, Senator.
Senator Whitehouse. I would like to ask you--you are
obviously a person who cares very deeply about the Department
of Justice and its institutions, and I worry about some of the
institutional legacy of what we have been through. In
particular, I would like to ask you for your thoughts on where
the standard should be of what is proper versus what is
improper in the context of bringing political influence or
partisan influence into the Department of Justice and why--that
is sort of the framing part of the question.
More specifically, I have been very concerned at some of
the statements that have come out of the Department of Justice
that have been the Department's effort to define that level of
impropriety, and I will tell you it began first with Kyle
Sampson, who told this Committee that the limited category of
improper reasons for these dismissals would include an effort
to interfere with or influence the investigation or prosecution
of a particular case for political or partisan advantage. And
then not too much later, Attorney General Gonzales came before
us, and in nearly verbatim words, he said that it would be
improper to ask for a resignation of any individual in order to
interfere with or influence a particular prosecution for
partisan political gain. And in the wake of the Attorney
General's testimony in the House, the Justice Department issued
a statement saying that it is clear that the Attorney General,
again, defining the standard of what is improper, did not ask
for the resignation of any individual in order to interfere
with or influence a particular prosecution for partisan
political gain.
Now, when I read those things, I harken back to the
elements of obstruction of justice, which I recall as being
three: one is the awareness of a particular case, two is the
effort to influence or interfere with it, and three is that
that be done for a corrupt or improper motive, such as partisan
political gain.
Let me ask it to you two ways. The first way would be: If
it became clear to you that somebody in the Department had
tried to interfere with or influence a particular prosecution
for partisan political gain, would you consider that to be the
basis for opening, at least opening an obstruction of justice
investigation? And if the facts were proven, would that not
even be the basis for a conviction for criminal obstruction of
justice?
Mr. Comey. I think it potentially could be, yes. Certainly
for looking at the matter.
Senator Whitehouse. In that context, do you think that is
where the bar should be set for what is improper versus not
improper in terms of political influence coming into the
Department of Justice? Is that the right standard?
Mr. Comey. No. If the standard is whether we are running
afoul of the obstruction of justice statute, I think it is set
way too low. Senator, as you know--
Senator Whitehouse. What should it be? You have had the
chance to think about this. You care about this Department
deeply. You have shown, through what is probably a difficult
experience for you, that you are willing to think about these
things without bias and really try to get to the right answer.
How would you phrase where the standard for what is improper
should be in terms of where and when the Department should
allow political influence to enter into its deliberations or
its conduct?
Mr. Comey. I think that you have to talk about it in two
pieces. One is Main Justice, and the other is the U.S.
Attorneys. And although both of those parts of the institution
are led by political appointees, I think they have to be
different in terms of what ``political'' means. I think it is
the job of the Department of Justice to be responsive to the
policy priorities of the President, who is elected and who has
appointed the folks to run the Department. But I think it is
Main Justice's job to see to it that U.S. Attorneys can operate
in an environment where there is little or no politics, big P
or little P, at all entering into their considerations.
I think once they walk through the door and become the U.S.
Attorney, although they are politically appointed, they have
got to call, as someone said, balls and strikes without regard
to whether the person in the dock in a Democrat or Republican
or a Green or who cares. They have to make the judgment on the
facts.
I think the job of the Department is, to the extent there
are complaints or there are political issues, to receive those
and to figure out what to do about them without polluting the
work of the U.S. Attorneys. That is why I think they are
different. I think it is a hard thing to define in the
abstract. It is certainly not obstruction of justice as the
standard.
I think the Department needs to make its decisions about
what to do with political interests or information by looking
at what is the mission of the Department of Justice. And--
Senator Whitehouse. Do you agree with me that the standard
that they have been articulating about efforts to interfere
with or influence a particular prosecution for partisan
political gain effectively restate the standard for criminal
obstruction of justice?
Mr. Comey. It sounds like it does, and that is certainly
something that should be avoided at all costs. But I think it
sets the bar a little too low in terms of what the Department's
mission is in protecting the historical autonomy of the entire
Department, especially the U.S. Attorneys.
Senator Whitehouse. Mr. Chairman, my time has expired.
Thank you, Mr. Comey.
Senator Schumer. Thank you, Senator Whitehouse.
Mr. Comey, I just want to followup on one final question. I
showed it to Senator Specter ahead of time because he had to
leave. But he was asking you about legality, illegality, within
law, not. The key point here is: Isn't it the Office of Legal
Counsel that makes a determination about whether something is
within the law or not, within the Justice Department?
Mr. Comey. Yes, and its opinions are binding throughout the
executive branch.
Senator Schumer. And didn't that office make a decision and
advise you that what was attempting to be done was not within
the law?
Mr. Comey. The conclusion was that they could not find an
adequate legal basis for--
Senator Schumer. OK. Let's put it that way.
Mr. Comey. Yes.
Senator Schumer. So they could not find an adequate legal
basis for doing it that way.
Mr. Comey. Correct.
Senator Schumer. And you felt that if they couldn't, you
couldn't preside over the Department of Justice if you were
going to be overruled by the White House to do it anyway.
Mr. Comey. Yes.
Senator Schumer. I think that is OK.
Let me conclude, then, by just thanking you. You are a
Profile in Courage. You are what our Government is all about.
In this case, it has nothing to do with Democrat, Republican,
liberal, conservative. It has to do with doing a job well and
caring about the rule of law. And I would say what happened in
that hospital room crystallized Mr. Gonzales' view about the
rule of law, that he holds it in minimum low regard. And it is
hard for me to understand--I am going to say something that you
will not say. It is hard to understand, after hearing this
story, how Attorney General Gonzales could remain as Attorney
General, how any President--Democrat, Republican, liberal,
conservative--could allow him to continue.
But I want to thank you for being here. I know it was not
easy. I know that if we did not have the power of subpoena, you
would not be here. I know you have a conscience that obviously
you have wrestled with in all this, and it is very difficult to
be here. But a Profile in Courage by definition is difficult,
and I think I speak on behalf of almost every American. We
thank you for being here and having the courage to speak the
truth.
The hearing record will remain open for 1 week, and the
Committee is now adjourned.
[Whereupon, at 11:50 a.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
PRESERVING PROSECUTORIAL INDEPENDENCE: IS THE DEPARTMENT OF JUSTICE
POLITICIZING THE HIRING AND FIRING OF U.S. ATTORNEYS?--PART V
----------
TUESDAY, JUNE 5, 2007
U.S. Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, Pursuant to notice, at 2:34 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Feinstein, Feingold, Schumer, and
Whitehouse.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Good afternoon. The Committee today will
continue its investigation into political influences affecting
the Justice Department. We have seen a lot of stonewalling by
this administration, a lot of conflicts in testimony and
failures of memory--failures of memory. Over and over again
failures of memory by the Attorney General and others have
greatly hampered our efforts to get to the bottom of these
matters.
Now, when the President complained in a press conference--
and I will use his words--that these matters are being ``drug
out,'' he need look no farther than his own White House and the
Justice Department leadership he appointed for the reasons this
continues to fester.
Trying to get them to answer questions, there seems to be a
delay for the sake of delay, perhaps thinking that we might
forget about this matter. We will not. The administration
should come clean. They should quit hiding the truth. They
should own up to their misdeeds.
The functions of the Department of Justice should be above
politics. Law enforcement, civil rights enforcement, and voting
rights are all too important to be enmeshed in partisan
political operations.
Despite the testimony of officials from this
administration, we are learning through press accounts that
many more than seven U.S. Attorneys were replaced and that
perhaps a dozen or two dozen or even three dozen were
considered for firing.
And it was only through press accounts--through press
accounts, and I compliment the press on this, because not from
the testimony of Department employees or the few selective
documents the Department has so far produced--that the public
learned that one of our witnesses today, Todd Graves, the
former U.S. Attorney for the Western District of Missouri, was
on those lists and asked to resign. He is from an earlier wave
of replacements in 2006.
We have also learned in recent weeks about apparently
extensive efforts by operatives of this administration to
screen the political allegiances of applicants for career law
enforcement positions.
Former Deputy Attorney General Jim Comey has said such
efforts to apply a partisan litmus test strike ``at the core of
what the Department of Justice is.'' And we know from her
guarded admissions before the House Judiciary Committee that
Monica Goodling, who was given immunity for everything except
perjury, had to admit that she ``crossed the line'' in engaging
in this conduct.
So who else at the Department was involved? Who knew this
was going on? Who acquiesced or approved it? Who directed it?
What did they know and when did they know it? These are all
questions that the Department of Justice has refused to answer
or explain.
We have been notified that the Inspector General has
expanded his investigation to include some of these matters.
And so I will be writing him and asking him whether he is also
expanding his investigation to include the meeting in which
Attorney General Gonzales made Ms. Goodling, by her words
``uncomfortable'' by inappropriately communicating with her
about matters under investigation in what appears to be an
effort to influence her testimony.
Our first witness today is Bradley Schlozman, the first
interim U.S. Attorney appointed by Attorney General Gonzales
pursuant to the authority granted in the PATRIOT Act
reauthorization, an authority that was so misused that
Republicans and Democrats joined in overwhelmingly to vote to
repeal that authority, and it has been repealed by this
Congress.
We hope to learn the unvarnished facts from him about these
unprecedented U.S. Attorney replacements and the use of
partisan considerations in career hiring. We also have
questions about his role as the interim U.S. Attorney and while
at the Civil Rights Divisions in pressing certain cases in
connection with recent elections.
I am deeply troubled by what appears to be an effort by the
White House to manipulate the Department into its own political
arm. You know, actually, the White House cannot have it both
ways. It cannot withhold documents and witnesses and thus
stonewall the investigation and at the same time claim that the
facts about White House influence over Federal law enforcement
have not been revealed in detail.
They cannot have it both ways. Because the White House has
continued its refusal to provide information to the Senate
Judiciary Committee on a voluntary basis, I will have no choice
but to issue subpoenas, and I will.
Today I hope we can begin to better understand the role
that efforts to influence elections in the name of pursuing
``voter fraud'' may have played a role in the dismissal of
Federal prosecutors. Every week seems to bring new revelations
about the erosion of independence at the Justice Department.
This administration was willing, in the U.S. Attorney
firings and in the vetting of career hires for political
allegiance, to sacrifice the independence of law enforcement
and the rule of law for loyalty to the White House.
The obligations of the Justice Department are to the
Constitution, the rule of law, and to the American people, not
to the political considerations of this White House. It is,
after all, the Department of Justice of the United States.
Mr. Schlozman, please stand and raise your right hand.
[Whereupon, the witness was duly sworn.]
Chairman Leahy. In April, you were the Associate Counsel to
the Director at the Executive Office for U.S. Attorneys. Until
April, you were the interim U.S. Attorney for the Western
District of Missouri.
You were the first interim U.S. Attorney appointed by
Attorney General Gonzales pursuant to the authority which the
Congress has now repealed in the PATRIOT Act reauthorization.
You received your Bachelor of Arts magna cum laude from the
University of Pennsylvania in 1993, J.D. from George Washington
School of Law in 1996. You clerked for Judge Thomas VanBebber,
U.S. District Court for the District of Kansas, Judge Mary Beck
Briscoe in the Tenth Circuit, 2 years in private practice
before moving to the Justice Department in 2001, 2 years as
counsel to the Deputy Attorney General, and so on.
Please go ahead. We have your testimony. The full testimony
will be placed in the record.
STATEMENT OF BRADLEY J. SCHLOZMAN, ASSOCIATE COUNSEL TO THE
DIRECTOR, EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS, FORMER
INTERIM U.S. ATTORNEY FOR THE WESTERN DISTRICT OF MISSOURI,
FORMER PRINCIPAL DEPUTY ASSISTANT ATTORNEY GENERAL AND ACTING
ASSISTANT ATTORNEY GENERAL FOR THE CIVIL RIGHTS DIVISION,
DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Mr. Schlozman. Thank you very much, Chairman Leahy.
Chairman Leahy, distinguished members of the Committee,
thank you for the opportunity to testify today.
My service in the United States Attorney's Office for the
Western District of Missouri was the highlight of my
professional career. Although my 13 months in office was
relatively brief, I believe that the outstanding Assistant U.S.
Attorneys and staff in that district accomplished an
extraordinary amount in that time.
During my time there, for example, the district was ranked
first in the country in the Justice Department's Project Safe
Neighborhood Program, charging more felon defendants with
unlawfully possessing a firearm than any other district in the
entire country.
The district also maintained its position as one of the top
offices in the country in prosecuting child exploitation cases.
Indeed, many components of our Project Safe Childhood
Initiative that we launched in the district have served as
models for other districts throughout the entire country.
In a related vein, I introduced the Human Trafficking Task
Force shortly after my arrival, which in less than a year led
to the indictments of numerous individuals and multiple
prosecutions.
All of these successes were due to the incredible team of
prosecutors and staff in the Western District of Missouri, and
I continue to be grateful for the honor of having served with
them.
I am also very proud of my approximately 3 years in the
Civil Rights Division, where I was privileged to work with many
brilliant and dedicated attorneys who cared passionately about
ensuring equal justice.
I served as a Deputy Assistant Attorney General from May of
2003 until June of 2005, and then as the Principal Deputy from
June of 2005 until March of 2006, and during a 5-month period
during that I was also the Acting Assistant AG.
During this slightly less than 3-year period, the Division
was able to achieve unprecedented results. The accomplishments
of the Voting Section, for example, were legion. In the
slightly less than 3 years I spent supervising that section,
for example, the Division filed 10 objections on behalf of
African American voters; 13 minority language cases under
Section 203, which was nearly half of all cases that had been
filed in the history of that provision of the Voting Rights
Act; a voter assistance case under Section 208; the first case
ever to protect Filipino voters; the first case ever to protect
Vietnamese voters; the first case under the intimidation
provision of the Voting Rights Act since 1992; four cases under
the Uniformed and Overseas Citizen Absentee Voting Act; three
cases under the National Voter Registration Act; and four cases
under the Help America Vote Act.
In fact, during just my 5 months as Acting Assistant
Attorney General, we filed six Voting Rights Act cases, which
is an average of more than one per month. And to put that
number in perspective, consider that the Division's 31-year
average is just six Voting Rights Act cases per year. We did
that in just 5 months.
The work of the Division's Special Litigation Section,
which I also supervised, was similarly impressive. From 2001
through 2005, the Special Litigation Section increased the
number of investigations pursuant to the Civil Rights for
Institutionalized Persons Act by more than 28 percent.
By the time I left, we had CRIPA matters involving over 175
facilities in 34 States and Territories, and those
investigations ensure that all too vulnerable residents of
State mental health facilities, geriatric centers, juvenile
facilities, and correctional institutions are afforded the
Federal, constitutional, and statutory rights to which they are
due.
Meanwhile, in the Employment Litigation Section, I either
authorized, reviewed, or oversaw the initiation of
investigations, the filing of complaints, or the course of
litigation in some of the Division's most important employment
discrimination cases in a decade.
Among the more prominent examples is a pattern-of-practice
suit that was--the investigation that I authorized was recently
filed against the New York Fire Department following a lengthy
investigation.
Finally, the Division's efforts to combat trafficking in
persons, which was really one of my prides and joys, has been
one of the Department's great success stories. Addressing an
evil that really is nothing less than modern-day slavery, the
Civil Rights Division launched a major initiative to educate
law enforcement, victim advocates, and the overall community
about human trafficking and how best to eradicate it. Task
forces were formed around the country, and the results have
been spectacular. In fiscal years 2001 through 2006, the Civil
Rights Division and U.S. Attorneys' Offices prosecuted 360
defendants, a more than 300-percent increase from the prior 6-
year period. In addition, the number of convictions and guilty
pleas during that time period increased by 250 percent when
compared to the prior 6-year period.
And nearly 1,200 trafficking victims from 75 countries were
assisted by the Division and other law enforcement personnel
for refugee type benefits under the Trafficking Victims
Protection Act. Few accomplishments have brought greater pride
to my heart.
Ultimately, none of these incredible successes of the
Division over the last 5 years would have been possible without
the tireless efforts of so many fine attorneys and staff in the
Division. I congratulate them and reiterate what a genuine
pleasure it was to work with them.
Thank you very much, Senator.
[The prepared statement of Mr. Schlozman appears as a
submission for the record.]
Chairman Leahy. Well, thank you, and I am glad to hear how
spectacular you were and the people you worked with. It makes
you sometimes wonder why we ever have to worry about with the
Department of Justice when you have such a spectacular record.
But let me ask you a couple of questions.
When you were the Attorney General's interim appointment as
U.S. Attorney for the Western District of Missouri and as a
high-ranking official in the Department's Civil Rights
Division, you did pursue voter fraud, as you said. You are
aware of the Justice Department's guidebook on Federal
prosecution of election offenses, the so-called Red Book,
aren't you?
Mr. Schlozman. I am somewhat familiar with it. In fact, the
Department today announced that they are issuing a new book
that will--
Chairman Leahy. Did they have--never mind what they are
doing today. Did they have this book at the time you were the
interim U.S. Attorney?
Mr. Schlozman. Yes, they did, Senator.
Chairman Leahy. And you are somewhat familiar with it?
Mr. Schlozman. Well, I was--in the Civil Rights Division,
we focused--
Chairman Leahy. When you were U.S. Attorney, were you
somewhat familiar with it or were you familiar? Because my
understanding is that all U.S. Attorneys are supposed to be
familiar with it?
Mr. Schlozman. I was--
Chairman Leahy. Were you or weren't you?
Mr. Schlozman. I was familiar with it, Senator, yes.
Chairman Leahy. That is a little bit better. Thank you.
On the eve of last year's closely contested midterm
election in Missouri, you brought four indictments against
individuals who filed some false voter registration
applications. Now, I read this book--and I was not a U.S.
Attorney, but I read this book, and they talk about the long
tradition--they actually use those words--against criminal
investigations on the eve of elections. The general policy
against criminal pursuit of individuals accused of election
misconduct in favor of going after larger conspiracies.
Wouldn't the timing of your action on the eve of it, filing
criminal charges not against a large conspiracy but against a
few individuals, wouldn't that be contrary to the policies that
are right here in the book?
Mr. Schlozman. No, Senator, they would not be. The--
Chairman Leahy. Is there another book besides this that I
should be aware of?
Mr. Schlozman. I am not aware of any other books on that
issue.
Chairman Leahy. I am not either, and I have looked
carefully. But it says, ``Since the Federal prosecutor's
function in the area of election crimes is not primarily
preventative, any criminal investigation by the Department must
be conducted in a way that eliminates or at least minimizes the
possibility that the investigation itself becomes a factor in
the election. With very few exceptions, no overt investigation
should occur until after the election.''
ACORN had been investigated, had itself referred the
incidents to the county prosecutor's office, so there is no
threat that prosecution was needed. At the time you filed the
indictments, the people involved had already been terminated.
Registration activities for the election had ceased. Is that
not true?
Mr. Schlozman. Yes, it is true, Senator, that they had
ceased.
Chairman Leahy. Well, then, did you go to anybody in the
Justice Department to approve what you were doing insofar as it
apparently goes against what is the prosecutor's handbook?
Mr. Schlozman. Yes, Senator. At my direction, the
prosecutor, the Assistant U.S. Attorney assigned to this case,
who is a 27-year veteran of the Department, contacted the head
of the Election Crimes Branch, which is a unit within the
Public Integrity Section--
Chairman Leahy. Who did you contact?
Mr. Schlozman. The head of the Election Crimes Branch.
Chairman Leahy. Who?
Mr. Schlozman. Craig Donsanto.
Chairman Leahy. Is he still there?
Mr. Schlozman. Yes, he is.
Chairman Leahy. And you contacted him or the Assistant--
Mr. Schlozman. My Assistant U.S. Attorney contacted him.
Chairman Leahy. At your direction?
Mr. Schlozman. At my direction, yes.
Chairman Leahy. And what was the response?
Mr. Schlozman. The response was when we explained the
nature of the investigation and the indictments, we
specifically asked whether we should be able to go forward or
he wanted us to delay. And his response was, ``Go ahead. If you
have got the investigation ready to go, go ahead and indict.
There is no need to wait until after the election.''
Chairman Leahy. Even though the manual says--and they
actually underline it in the manual--``Thus, most, if not all,
investigations related to election crime must await the end of
the election to which the allegation relates.''
Mr. Schlozman. His explanation was--
Chairman Leahy. And these people were no longer involved in
the election at the time you brought the charges. It seems so
extraordinary and so different from what is normally done. Did
they ask you is there a reason why they should not follow their
normal policy?
Mr. Schlozman. The Director's explanation was that this
case did not implicate any of the DOJ informal policies
because, as he said, there was no need to actually interview
any voters in this case. And because of that, there was no--the
purpose of that policy is designed to ensure that no
investigation ensues where a voter might actually have to be
interviewed prior to the election, which could chill potential
electoral activity. And because that was not necessary here, he
said, ``Feel free to go forward. No policy is implicated.''
Chairman Leahy. In your testimony you said there was
nothing unusual, irregular, or improper about the substance or
timing of these indictments. Is that your position today?
Mr. Schlozman. It is, and that is based on the express
direction and guidance that I received from the Elections
Crimes Branch of the Public Integrity Section.
Chairman Leahy. But why did you even seek--why didn't you
just wait a couple weeks more? I mean, wasn't this obvious to
you that just simply bringing the charges, especially when
there is nothing that you had to bring to stop somebody before
the election, just that bringing of the charges could have an
effect on the election? Did that thought ever occur to you?
Mr. Schlozman. Well, a couple points there. No. 1, I
didn't--the reason I contacted the Public Integrity Section is
that that is explicitly required under the U.S. Attorney's
manual. In terms of--I mean, I didn't think that this was going
to have any impact on any election. I mean, these were
individuals who were filling out false voter registration
cards. So there was no--
Chairman Leahy. And it had been stopped because they had
been self-referred to the county prosecutor, but you did not
think that when the U.S. Justice Department stepped in that it
would have any effect whatsoever that close to an election?
Mr. Schlozman. Well, there was no individual who was
possibly going to be disenfranchised or who was--
Chairman Leahy. That is not my question at all, Mr.
Schlozman, and you know it. Did you really think that having
the Department of Justice bring a charge like that, that close
to the election, would have no effect on the election? I am not
talking about an individual being stopped from voting. It would
have no effect on the election?
Mr. Schlozman. I did not think it was going to have any
effect on the election in this case. No, Senator.
Chairman Leahy. You are amazing. Do you read the papers at
all?
Mr. Schlozman. I do.
Chairman Leahy. Do you watch the news at all?
Mr. Schlozman. Occasionally, yes.
Chairman Leahy. Did you ever watch it before an election?
Mr. Schlozman. Senator, I have watched the news on
occasion.
Chairman Leahy. OK. Have you ever made a remark suggesting
to anybody that helping a particular candidate or political
party played a role in your decision about filing this lawsuit
as interim U.S. Attorney?
Mr. Schlozman. I can't imagine having made any comments
like that.
Chairman Leahy. So your answer is no?
Mr. Schlozman. My answer is no.
Chairman Leahy. If anyone said otherwise, they would be
mistaken?
Mr. Schlozman. I do not have any recollection. It would be
completely inconsistent with my--with my--
Chairman Leahy. What about any role in the timing of the
filing or prosecution of any lawsuit? Did you ever talk to
anybody that this may affect an election one way or the other?
Mr. Schlozman. I don't recall making any comment, and,
again, I got--I did what I did at the direction of the Public
Integrity Section.
Chairman Leahy. Well, at your instigation. You could have
also just followed the manual and waited a couple weeks, could
you not have?
Mr. Schlozman. Well, I--
Chairman Leahy. Would it have affected the prosecution?
Would it have affected your ability to bring the prosecution if
you just waited a few weeks until the election was over?
Mr. Schlozman. The Department of Justice does not time
prosecutions to elections.
Chairman Leahy. Well, yes, they do. That is what the manual
says. And you, rather reluctantly, I felt, admitted you
actually did read it when you became the interim U.S. Attorney.
The fact is, would it have changed the outcome of your
prosecution had you waited a few weeks to bring it?
Mr. Schlozman. I don't know--I doubt there would have been
any impact on the actual prosecution. Again, I asked the
Department's Public Integrity--
Chairman Leahy. That is my conclusion, too. My time is up.
I think, Senator Schumer, you--who is next?
Senator Feinstein. Are you using early bird? Early bird, he
was next.
Chairman Leahy. Go ahead.
Senator Schumer. It looks like I caught the worm. Thank
you, Mr. Chairman, and I thank my colleague from California.
Mr. Schlozman, is the policy against considering political
and ideological affiliations in the hiring of career Department
employees formal or informal?
Mr. Schlozman. I think it is pursuant to a civil service
statute for career employees.
Senator Schumer. So it is formal?
Mr. Schlozman. The Hatch Act, yes.
Senator Schumer. Did you ever violate it?
Mr. Schlozman. I did not.
Senator Schumer. Did you ever ``cross the line,'' as Ms.
Goodling has admitted doing?
Mr. Schlozman. I did not.
Senator Schumer. Did you know whether anyone else ever
violated those rules? Had you heard anyone ask the kinds of
questions that Ms. Goodling--did you hear Ms. Goodling ever ask
those questions about anybody to your or anyone else?
Mr. Schlozman. I did not personally hear her ask any of
those kinds of questions.
Senator Schumer. Did you ever hear anyone else ask those
questions--``Is this person a Republican?'' ``Is this person a
conservative?''
Mr. Schlozman. I did not hear that, no.
Senator Schumer. OK. As interim U.S. Attorney, did you have
to get clearance from Main Justice to hire line-level AUSAs?
Mr. Schlozman. I did, yes.
Senator Schumer. From whom did you have to get such
clearance?
Mr. Schlozman. From the Executive Office for U.S.
Attorneys.
Senator Schumer. OK. Who? Who did you contact?
Mr. Schlozman. Oh, the names? I mean, usually it would be
the Director and the Principal Deputy Director, and I
understand that they actually did have to get approval from the
Attorney General's office.
Senator Schumer. How many AUSAs did you hire during your
tenure?
Mr. Schlozman. Two.
Senator Schumer. Were any rejected by the Department?
Mr. Schlozman. No.
Senator Schumer. When was the last hire you made into the
U.S. Attorney's Office?
Mr. Schlozman. Probably sometime in February or March of
2006--or 2007, I am sorry.
Senator Schumer. Did you ever consider political
affiliation or ideology?
Mr. Schlozman. I did not.
Senator Schumer. OK. And have you ever been interviewed by
the Office of Professional Responsibility or the Inspector
General's office in connection with their ongoing
investigations?
Mr. Schlozman. I have not.
Senator Schumer. If not, do you expect to be?
Mr. Schlozman. I assume I will be, yes.
Senator Schumer. You don't know when?
Mr. Schlozman. I don't know when.
Senator Schumer. OK. Let me just ask you these questions so
the record is clear. Are you aware of whether anyone at DOJ,
including yourself, asked applicants for careers positions
about or considered as factors any of the following, and I am
going to be very explicit here: Party affiliation?
Mr. Schlozman. I am not aware of that.
Senator Schumer. Loyalty to or support for the President?
Mr. Schlozman. For career positions? I am not aware of
that.
Senator Schumer. How they voted in any election?
Mr. Schlozman. I am not aware of that.
Senator Schumer. Positions on any public policy issues?
Mr. Schlozman. I don't know--I don't recall any questions
about public policy positions, where the individual stood.
Senator Schumer. People didn't ask, ``Are you pro-choice?
Pro-life?''
Mr. Schlozman. No.
Senator Schumer. This or that--OK. Membership in a
nonprofit organization?
Mr. Schlozman. Did people ask whether candidates were?
Senator Schumer. Yes.
Mr. Schlozman. I am not aware of any.
Senator Schumer. Like the Federalist Society or something
like that?
Mr. Schlozman. I mean, people might have it on their
resume, and it might be discussed at a--you know, during the
interview, but I don't remember--I am not aware of any
questions where someone asked that kind of question.
Senator Schumer. OK. Before Monica Goodling's admissions,
did you have any knowledge whatsoever that such questions were
ever asked or ever considered for applicants for career type
positions?
Mr. Schlozman. I was not aware--I knew that there was a
vetting process up in the Attorney General's office, but I
don't--I'd hear rumors, but I was not aware of any--
Senator Schumer. Let me ask you this one: Did you ever
suggest to anyone, an applicant for a position at the Justice
Department, to change his or her resume to hide a conservative
or Republican affiliation or connection?
Mr. Schlozman. What I did do was is I would--I mean, the
answer to that--it is not a matter of hiding it, but I did
encourage individuals on a couple of occasions to take
political background which was irrelevant to the hiring
decision for a career position and did not include that in the
resume that they submitted for a career position.
Senator Schumer. Well, did you say don't put something
conservative or Republican so they won't know your views or
your affiliation?
Mr. Schlozman. What I did do is we--on a couple of
occasions we had, like, Republican National Lawyers Association
and I would--when I would get a resume--what would end up
happening, Senator, is that I would get resumes from third
parties, usually for people being considered for either a
political or a career position in the Division. We had both.
So if it was a career position--if it was a political
position, I would send it up to the Attorney General's office
for the White House liaison. If it was a career position and
there was some kind of--obviously, people in this city have
both political and non-political resumes, and if I would see
some sort of political background that was irrelevant to the
hiring decision, I would encourage them not to include that.
Senator Schumer. On how many occasions did you do that?
Mr. Schlozman. Perhaps a handful. I mean, three to four, I
would assume.
Senator Schumer. Can you name some of the people and what
affiliations you told them to take off their resume?
Mr. Schlozman. Senator, I don't remember specific names.
Senator Schumer. But you did do it?
Mr. Schlozman. Yes. I mean, I did do that, yes.
Senator Schumer. OK.
Chairman Leahy. You can't remember any of them?
Mr. Schlozman. Well, one has come out--one has apparently
come out and made the allegation, the one individual that has
been in the press, but I don't remember any of the names of any
specific individuals, no.
Senator Schumer. But you did it on several occasions?
Mr. Schlozman. Probably, yes.
Senator Schumer. And it wasn't just Republican or
conservative affiliations that they should do?
Mr. Schlozman. If it was purely political background--the
fact that there might have been some organization that is
perceived as political, that is not what I was telling them to
remove. It would have been something like--
Senator Schumer. And you never told people for the purpose
of hiding what your views are so you could get in or whatever?
Mr. Schlozman. It wasn't a matter of--
Senator Schumer. Did you ever tell people that, yes or no?
Mr. Schlozman. As a matter of hiding it? No. I don't recall
making any--
Senator Schumer. Or something to that effect?
Mr. Schlozman. I don't recall making any kind of comment
like that.
Senator Schumer. OK. At any time did you receive
recommendations for the hiring of career lawyers from the
Republican National Lawyers Association?
Mr. Schlozman. I don't recall getting any recommendations
from the RNLA.
Senator Schumer. Did Michael Thielen--he was head of it--
refer candidates to you?
Mr. Schlozman. I don't recall. I don't even know Michael
Thielen.
Senator Schumer. OK. So you have no recollection of that
happening?
Mr. Schlozman. I have no recollection.
Senator Schumer. OK. Did you ever boast to anyone that you
had hired a certain number of Republicans or conservatives for
any division or section at the Department of Justice?
Mr. Schlozman. I mean, I don't remember. What I probably--I
mean, I have made statements, you know, that we have in one
section brought more perhaps individuals who were more
professional and--
Senator Schumer. No, I did not ask professional. You have
got to answer my question.
Mr. Schlozman. OK. I mean--
Senator Schumer. I know you may associate Republican or
conservative with professional, but that is not my question.
Mr. Schlozman. Senator, I mean, I may have made
statements--
Senator Schumer. This is a--I am asking these questions,
you know, for a reason.
Mr. Schlozman. Yes.
Senator Schumer. OK. Did you ever boast to anyone that you
hired a certain number of Republicans or conservatives for any
division or section at the Justice Department?
Mr. Schlozman. I mean, I probably have made statements like
that and--
Senator Schumer. Thank you. OK. Why did you do it if you
just said a few minutes ago that it wasn't relevant to have
that on their resumes because it wasn't political?
Mr. Schlozman. These individuals, Senator, were not hired
because they were Republican or--
Senator Schumer. I didn't ask that. If you said it was
irrelevant at one point, now you are boasting to people that,
well, we hired Republicans, is there a contradiction there?
Mr. Schlozman. No, Senator. I mean, I--when I inherited the
Voting Section of the Division, I was aware of the significant
problems that had been--that had afflicted the Division and the
administration having been hit with more than $4.1 million
dollars in sanctions, and that's taxpayer dollars, and I wanted
to make sure that we weren't going to have those kind of abuses
repeat themselves.
Senator Schumer. Mr. Schlozman, it sure seems a
contradiction to me, and I will pursue this in the second
round, if we are going to have one, Mr. Chairman. Thank you.
Chairman Leahy. Thank you, Senator Schumer.
Normally we would go to Senator Feinstein next, but she has
been gracious enough, knowing Senator Whitehouse is supposed to
be at a meeting with the Leader, and--
Senator Whitehouse. Thank you, Senator Feinstein. I
appreciate it. Thank you, Chairman.
Mr. Schlozman, other than your internship as a law student
in the Western District of Missouri, had you ever been to the
Western District of Missouri before you came in as the U.S.
Attorney?
Mr. Schlozman. Yes, I mean, I'm from Kansas City. I'm
actually from Overland Park, Kansas, but I'm from Kansas City,
so I spent my entire childhood in the Kansas City area.
Senator Whitehouse. OK. And you are admitted in Missouri?
Mr. Schlozman. Yes.
Senator Whitehouse. OK. In testimony before a House
Judiciary Subcommittee, Joe Rich, who worked at DOJ Civil
Rights Division for, I believe, 37 years, the last 6 of which
he served as the Chief of the Voting Section, testified as
follows, that he was--and here begins the quote, ``ordered to
change''--``ordered to change the standard performance
evaluations of attorneys under my supervision to include
critical comments of those who had made recommendations that
were counter to the political will of the front office and to
improve evaluations of those who were politically favored. In
my 32 years of management in the Division before this
administration, I was never asked to alter my performance
evaluations.''
Was it you who ordered him to make those changes in
performance evaluations?
Mr. Schlozman. On a number of occasions, I believe I did
order him to--and it's actually--on evaluations, Senator, there
is a rating official and a reviewing official. Usually, the
career section chief is the rating official, and the Deputy
Assistant Attorney General was the reviewing official.
So I would get Mr. Rich's evaluations, and then I would be
required to review it for whatever I felt. And so if I felt
that there were inaccuracies or omissions or need for anything,
any kind of changes to the evaluation, it was my responsibility
to do it as the reviewing official.
Senator Whitehouse. And so for the past 32 years in that
section which it had never been done before, that was just,
reviewing officials sort of falling down on their duties?
Mr. Schlozman. Senator, I can't speak for anybody other
than myself, and if I didn't change what I felt to be an
inaccurate evaluation, I'd be shirking my own responsibility.
Senator Whitehouse. Why is it that he testified that there
was a political difference between those evaluations you sought
to improve because they were, and I quote, ``politically
favored'' versus those who you sought to criticize because they
were not?
Mr. Schlozman. Senator, I don't--I can't characterize Mr.
Rich's testimony or get into his head.
Senator Whitehouse. Did you also require changes in
performance evaluations of attorneys in the Appellate Section?
Mr. Schlozman. You know, I just don't remember. I don't
remember if Appellate Section was--
Senator Whitehouse. Isn't it true that the section chief of
the Appellate Section actually refused to clear and sign the
evaluations that you had ordered to be changed and that as a
result people went without evaluations for a while? Were you
aware of that?
Mr. Schlozman. I don't recall anything like that, no. I
mean, I just--remember, Senator, it also has been--I mean, I
have been out of the Division for 15 months, and only--
actually, I only supervised the Appellate--I didn't supervise
the Appellate Section even during my first 2 years of the
administration. I may have supervised it during my last--while
I was Acting, but I don't recall any incident like that.
Senator Whitehouse. Thank you. No further questions.
Chairman Leahy. Senator Feinstein?
Senator Feinstein. Thank you very much, Mr. Chairman.
Good afternoon, Mr. Schlozman. I would like to followup on
what Senator Whitehouse asked. At that same time Mr. Rich also
testified that four section chiefs, two deputy chiefs, and a
special counsel--this is the Civil Rights Division--were either
removed or marginalized because they were disfavored for
political reasons or perceived as disloyal. Did you ever order
the removal of a section chief while serving in the Civil
Rights Division?
Mr. Schlozman. Did I order the removal of a section chief?
Senator Feinstein. Order it, suggest it, or carry it out.
Mr. Schlozman. I believe I did, yes.
Senator Feinstein. And whose dismissal or whose removal did
you order?
Mr. Schlozman. We made some personnel changes in a number
of different sections, and I believe in the Voting Section and
in the Criminal Section.
Senator Feinstein. Could you give me a number?
Mr. Schlozman. I think that there were a couple of changes,
a few changes. I just--
Senator Feinstein. I am going to ask you if you would
refresh your memory and in writing, submit to the Committee--
Mr. Schlozman. Absolutely. I would be happy to, Senator.
Senator Feinstein.--exactly who it was.
Mr. Schlozman. Sure.
Senator Feinstein. Did you ever order the transfer of a
section chief while serving in the Civil Rights Division?
Mr. Schlozman. Yes. One time.
Senator Feinstein. And who was that?
Mr. Schlozman. That was the chief of the Criminal Section.
Senator Feinstein. Did you order the transfer of the deputy
section chief of the Voting Rights Section, Bob Berman, out of
the section in January 2006?
Mr. Schlozman. At the time that he was moved, I was no
longer the Acting Assistant Attorney General.
Senator Feinstein. So is your answer no?
Mr. Schlozman. I did not order that, no.
Senator Feinstein. Do you know what the basis for that
transfer was?
Mr. Schlozman. I do.
Senator Feinstein. And what was it?
Mr. Schlozman. Well, Senator, Mr. Berman had gone on a
detail as part of a Senior Executive Service training program,
and I believe had just come back in January of 2006, and Mr.
Kim, Assistant Attorney General, had just started a
professional development office, the new training office, which
is considered one of his signature initiatives, and he thought
that Mr. Berman would be an ideal fit for that office.
Senator Feinstein. OK. Did you ever order the transfer of a
career attorney out of the Appellate Section of the Civil
Rights Division?
Mr. Schlozman. I did, yes.
Senator Feinstein. And who was that?
Mr. Schlozman. Senator, those individuals are still within
the Division, and I would be very reluctant to start naming
individuals by name.
Chairman Leahy. It is a legitimate question.
Mr. Schlozman. I am sorry?
Chairman Leahy. It is a legitimate question.
Mr. Schlozman. It is, and I would be happy to do it in
writing so perhaps, Senator, we would not have to publicly
identify--
Senator Feinstein. That is acceptable to me. May we get it
within 48 hours?
Mr. Schlozman. I mean, I am--sure.
Senator Feinstein. Thank you.
Was any transfer that you ordered of a career attorney out
of the Appellate Section later reversed?
Mr. Schlozman. I believe that at least one of the attorneys
who I had transferred out of the section was allowed to return
to that section--two of the attorneys who had--
Senator Feinstein. Alright. I would ask you for those names
as well.
Did you ever instruct the section chief of the Appellate
Division to remain silent about your role in ordering the
transfers of career attorneys out of the Appellate Section?
Mr. Schlozman. I don't recall saying that I should be--that
he should remain silent about my role. I mean, I believe that
when we made those personnel moves, I explained to him that he
was the section chief and so he should be carrying out
personnel moves. But I don't recall that I said remain silent
regarding my role. And as far as I know, he didn't, and he made
clear that I was involved in those decisions.
Senator Feinstein. In late 2005, you overruled the
recommendation of then-U.S. Attorney Todd Graves and authorized
a lawsuit to be filed against the Missouri Secretary of State.
The Chairman referred to it, and the suit alleged that Missouri
was not making a reasonable effort to remove ineligible voters
from its voter rolls. In early 2006, Mr. Graves was told to
resign, and you became the interim U.S. Attorney. Why was Mr.
Graves told to resign?
Mr. Schlozman. Senator, I have no idea. In fact, I did not
know that he had resigned until I read about it in the Kansas
City Star.
Senator Feinstein. So you had no involvement in the
decision?
Mr. Schlozman. None whatsoever.
Senator Feinstein. Do you know who made that decision?
Mr. Schlozman. I do not. I mean, all I know is what I've
read in the newspaper, which is that he was apparently advised
of the decision by the Director of Executive Office for U.S.
Attorneys. But I know no information on it at all.
Senator Feinstein. Did you not talk to anybody about who
made the decision?
Mr. Schlozman. Not only did I not talk to anyone about it,
but I didn't know that he--about the resignation. I mean, I
didn't know about the latest revelations until I read about it
in the Washington Post.
Senator Feinstein. OK. I wanted to ask a few followup
questions on the ACORN indictments. Senator Leahy asked you
about them. As you know, the four workers voluntarily turned
over evidence to investigators, and they were cooperating fully
with the investigation. And yet you went ahead, and shortly
before that election, you brought these indictments. And on
page 61 of this book, it is rather clear that that is
effectively a no-no.
Why did you do that?
Mr. Schlozman. Senator, I acted at the direction of the
Director of the Election Crimes Branch in the Public Integrity
Section. We asked whether he wanted us to go forward or delay
until after the election, and he said go forward in e-mail
traffic.
Senator Feinstein. And who was that that ordered you to go
forward?
Mr. Schlozman. Craig Donsanto, the head of the Election
Crimes Branch.
Senator Feinstein. This is puzzling. This volume, that you
admitted U.S. Attorneys must be familiar with, states very
clearly, ``Thus, most, if not all, investigation of an alleged
election crime must await the end of the election to which the
allegation relates.''
This involved four people who were cooperating with the
local district attorney. The matter was being taken care of
locally. And yet the U.S. Attorney then files a case right
before the election. I have a hard time understanding that if
it isn't for political reasons.
Mr. Schlozman. Senator, first of all, the cooperation was
not by the four individuals. The cooperation was by the ACORN
organization. That is the first point.
Second, although ACORN wrote to the local county prosecutor
on--I believe it was October 11th, the next day we got a letter
from the bipartisan election commission in Kansas City urging--
then that was sent to the U.S. Attorney's Office the FBI,
urging us to investigate.
And at that point, again, we completed our investigation
very quickly because ACORN was so cooperative in that matter,
and when we asked the Public Integrity Section if they wanted
us to go forward or wait until after the election, they said go
ahead and go forward.
Senator Feinstein. I think my time is up. I will wait.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Before we turn to Senator Feingold, you said there was e-
mail traffic on that. Where is that e-mail traffic now?
Mr. Schlozman. The Department would have that.
Chairman Leahy. Do you have it?
Mr. Schlozman. I have some of those e-mails, yes.
Chairman Leahy. Will you provide those for this Committee?
Mr. Schlozman. That would be up to the Department whether
they would release those kind of e-mails. I am a Department
employee, and so I assume that it may be deliberative process,
and I can take it back to the Department.
Senator Feinstein. Mr. Chairman, if you would excuse me,
that is rather strange. I mean, you raised them. I did not
raise--
Chairman Leahy. No, you did.
Senator Feinstein. You raised them.
Chairman Leahy. You are raising them. I don't know how you
could refuse to provide them.
Mr. Schlozman. Senator, I will be happy to take that back
to the Department and--
Chairman Leahy. Well, we are asking for them. If not, we
will subpoena you and the e-mails, just so there will be no
question about it.
Senator Feingold?
Senator Feingold. Thank you, Mr. Chairman.
Let me first followup on Senator Schumer's questions with
respect to Schedule A appointments to trial attorney positions
in the Civil Rights Division. Sir, did you ever ask anyone to
help you find conservative and/or Republican lawyers to
interview? Or did you ever receive recommendations of
individuals who were identified by the recommending person as
Republican or conservatives?
Mr. Schlozman. I received resumes from all kinds of
organizations, conservative organizations and non-conservative
organizations, for career attorneys.
Senator Feingold. Did you ask anyone to help you find
conservative and/or Republican lawyers?
Mr. Schlozman. We did outreach with organizations all over.
I mean, I was not saying I want conservatives, but I would go
do outreach at organizations across the spectrum. We did
outreach at conservative organizations. We did outreach at non-
conservative organizations.
Senator Feingold. You never said, ``I would like to find
some conservative and/or Republican''--
Mr. Schlozman. I don't recall making a statement like that.
Senator Feingold. Well, I am going to read you a list of
names and ask you in each case to state whether the person
recommended a candidate for a career position at the Department
or forwarded you a resume to consider. Leonard Leo, the
Executive Vice President of the Federalist Society.
Mr. Schlozman. I don't recall getting any resumes from Mr.
Leo.
Senator Feingold. Or did he recommend?
Mr. Schlozman. I am sorry?
Senator Feingold. Or did he recommend a candidate? In each
of these cases, I am asking you whether the person either
forwarded you a resume or recommended a candidate.
Mr. Schlozman. I think I may have gotten a recommendation
from him for a candidate.
Senator Feingold. It sound like you think you probably did.
Mr. Schlozman. Yeah, I think I probably did.
Senator Feingold. All right. Michael Thielen, Executive
Director of the Republican National Lawyers Association?
Mr. Schlozman. No. I don't even known Michael Thielen.
Senator Feingold. Scott Bloch, the special counsel at the
U.S. Office of Special Counsel, either recommendation or
forwarded you a resume?
Mr. Schlozman. I do believe I got a recommendation for
someone for a Special Assistant U.S. Attorney position in
Kansas City from Mr. Bloch. We did not hire that individual,
but I did get--
Senator Feingold. Is that all you recall with regard to Mr.
Bloch?
Mr. Schlozman. That's all I recall.
Senator Feingold. Jan Williams during her 2001-to-2004
tenure at the White House Office of Presidential Personnel or
during her tenure as the DOJ White House liaison in 2005?
Mr. Schlozman. I don't recall getting any recommendations
or resumes from her. I just--I don't recall.
Senator Feingold. Monica Goodling?
Mr. Schlozman. I don't recall, again, getting any
recommendation--
Senator Feingold. Getting either one?
Mr. Schlozman. I don't recall getting any.
Senator Feingold. Kyle Sampson?
Mr. Schlozman. Not for an attorney, I didn't get--I don't
recall getting any--I do believe I got a recommendation for a
non-attorney position, kind of just a staff position, kind of a
summer worker, but I don't believe I ever got any attorney
recommendations or referrals from Mr. Sampson.
Senator Feingold. Or resumes.
Mr. Schlozman. Or resumes, right.
Senator Feingold. Alex Acosta?
Mr. Schlozman. Well, Alex was my boss as the Assistant
Attorney General in the Civil Rights Division, so I'm sure I
received plenty of recommendations and referrals from him.
Senator Feingold. Hans von Spakovsky?
Mr. Schlozman. Yes, Hans von Spakovsky was the Voting
Counsel in the Civil Rights Division, and I'm sure I received a
number of resumes that Hans gave to me.
Senator Feingold. Thank you. Let's go to some of the issues
being raised about ACORN again and the four indictments you
served up. You did confirm already, in answer to Senator
Feinstein, that ACORN itself provided officials with the names
of the three or four people you indicted, correct?
Mr. Schlozman. Yes.
Senator Feingold. And so it is true that these indictments
were not the result of an ongoing national investigation but,
rather, of ACORN's self-reporting, right?
Mr. Schlozman. Senator, the national investigation is not
something that I am able to talk about it. I can tell you that
any statements in that regard were made at the direction of the
Public Integrity Section at the Department of Justice, and I
can't go into any more detail on that.
Senator Feingold. But you have indicated how this ACORN
thing happened, and it was a self-reporting act. It was not a
result of a national investigation. Isn't that right?
Mr. Schlozman. Senator, I mean, in terms of any broader
investigation, I simply can't talk about that.
Senator Feingold. I don't think it is necessary. You
indicated that in this case it came because ACORN self-
reported.
Mr. Schlozman. On those four cases, that is correct.
Senator Feingold. So how could it be part of a national
investigation if they simply self-reported?
Mr. Schlozman. Senator, I just--I can't talk about any
broader part of--again, the statement that I made in the media
was made at the direction of the Public Integrity Section.
Senator Feingold. Did you find any evidence of a conspiracy
by ACORN to commit voter fraud in Missouri or elsewhere in the
country?
Mr. Schlozman. My office did not, no.
Senator Feingold. Your office apparently named the wrong
person in one of the indictments, suggesting that at least one
and possibly all of the defendants were not interviewed pre-
indictment. Is that true?
Mr. Schlozman. Senator, I am not sure that I'm able to talk
about that kind of information. That may be Rule 6(e) material,
grand jury, in terms of the nature of our investigation. I can
tell you that the individual who we amended to--you know, one
individual was dismissed, and we then ended up charging a
fourth individual. And I can tell you that that individual was
also charged with identity theft.
Senator Feingold. I know you testified similarly to Senator
Feinstein and also when I was not here to Senator Leahy's
question on the ACORN indictments, ``I didn't think they would
have any effect on the election.'' And Senator Leahy expressed
some surprise at the testimony, with pretty good reason.
I just want to read you an excerpt from a Missouri
Republican Party press release from November 2, 2006. `` `It is
very disturbing that members of this left-leaning group have
been indicted for engaging in serious voter fraud designed to
cause chaos and controversy at the polls in order to help
Democrats to try to steal next week's election,' said Paul
Sloca, communications director for the Missouri Republican
Party. `This illegal assault on our election system should
concern every voter in this State who deserves to know that
their legitimate ballots won't be canceled out by fraudulent
ones. It also raises serious questions about the Democratic
Party and Claire McCaskill's involvement with ACORN.' ''
Would you say this statement was intended to affect voters'
decisions?
Mr. Schlozman. Senator, I can't speak for anybody else. I
mean, I--
Senator Feingold. Well, you certainly--
Mr. Schlozman. I don't know why he made that--
Senator Feingold. You know how to read a statement. And you
hear something like that, doesn't that sound to you like
something that is trying to persuade people to make a decision
about an election?
Mr. Schlozman. Senator, it is probably improper for me to
characterize his testimony. I mean, I don't know why he said
what he said.
Senator Feingold. Well, I think you do. I think clearly it
was intended to affect the outcome of the election. The timing
is obvious. But I thank you for your answers.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
You know, I tend to think that perhaps you use this more as
a doorstop than as something you actually had to follow. I read
from it: ``It should also be kept in mind that any
investigation undertaken during the final stages of a political
contest may cause the investigation itself to become a campaign
issue. Many, if not most, allegations during this period come
from political partisans who are actively involved in the
election.'' And on and on.
Mr. Schlozman, it is interesting. I have been on this
Committee for about 30 years. You are the first person I can
remember from the Department of Justice invited at a specific
time to come here to testify and we were told no, you were not
available. And that was about 3 weeks ago.
And after I put your name on the list for subpoenas, you
suddenly found the time. But during that 3 weeks, you had
plenty of time to prepare for this hearing, but I think you are
trying to break Attorney General Gonzales' record of saying you
don't recall or you don't remember. I have lost count of the
number of times you have said that to questions you would think
during that 3 weeks you would have been prepared for.
Who did you discuss your testimony with today?
Mr. Schlozman. In preparation for this hearing, I met with
representatives of the Office of Legislative Affairs--
Chairman Leahy. Who?
Mr. Schlozman. I am not sure that we typically identify
specific--
Chairman Leahy. Who did you meet with?
Mr. Schlozman. The different individuals in that office who
work for the Assistant Attorney General, staff.
Chairman Leahy. Who?
Mr. Schlozman. Nancy Scott-Finan from the Office of
Legislative Affairs; Richard Hertling from the Office of
Legislative Affairs; John Gillis from the Civil Rights
Division; Paul Colborn from the Office of Legal Counsel; I
think Greg Katsis from the Associate Attorney General was
there--from the Associate Attorney General's office. I think
that's pretty much the list of individuals who--
Chairman Leahy. Anyone from the White House?
Mr. Schlozman. No.
Chairman Leahy. Did you discuss it with the Attorney
General?
Mr. Schlozman. No.
Chairman Leahy. So that long list of people, how much time
did you spend preparing your testimony?
Mr. Schlozman. I think we did some looking over past
information and documents and--
Chairman Leahy. How much time?
Mr. Schlozman. Oh, I don't know. Twenty-five or 30 hours, I
guess.
Chairman Leahy. Did you find as you prepared for the
testimony that there was anything you remembered?
Mr. Schlozman. Yeah, I mean, there were documents that,
looking at, allowed me to refresh my recollection, and I mean,
I thought that that--I had been--when I got to--when I got the
Committee's invitation, I mean, again, it had been 15 months
since I had been--almost 15 months since I had been in the
Civil Rights Division, so--
Chairman Leahy. I understand. And I hope that when you go
over your testimony from today you will find in some of those
areas where you don't recall that perhaps you do.
Now, according to a recent press report, Tom Heffelfinger,
who I am told is a widely respected U.S. Attorney, former U.S.
Attorney in Minnesota, wanted to investigate possible voting
rights discrimination against Native Americans in his district.
At that time you were serving in the Civil Rights Division and
may have played a role in quashing this voter protection
investigation.
But then when you were interim U.S. Attorney--and I am
going to give you plenty of time to tell me if you disagree
with any of this. When you were interim U.S. Attorney, you
filed the ACORN suit against four individuals on the eve of an
election. You explained what you did, even though it seems to
go contrary to what is in the election offenses guidebook.
But despite the express priority in the guidebook for
protecting the voting rights of minorities, you prevented the
U.S. Attorney in Minnesota from taking action, and according to
the May 31st Los Angeles Times, you effectively quashed the
investigation into possible voter discrimination against Native
Americans. Joe Rich, who is the career head of the DOJ's Voting
Right Section, recommended such an investigation.
What was your motivation in not pursuing that
recommendation?
Mr. Schlozman. Senator, Mr. Rich's report is completely
inaccurate. We were getting in the October 2004 time period, I
mean, literally dozens of complaints every day. In fact, we
were getting so many that we had assigned--
Senator Feingold. You read that article in the Los
Angeles--
Mr. Schlozman. I have, Senator, yes.
Chairman Leahy. And you disagree with it?
Mr. Schlozman. Yes, I do.
Chairman Leahy. Tell me.
Mr. Schlozman. We were getting so many complaints that we
were literally assigning extra staff and attorneys to handle
the complaints, and because we were getting so many complaints,
we wanted to be able to properly triage how we were going to
handle each of these matters.
Chairman Leahy. Well, let's go into that. The Los Angeles
Times reported that you told Mr. Rich not to do anything on the
Minnesota Native American issue without your approval because
of the special sensitivity of this matter. Is that correct?
Mr. Schlozman. That was, I believe, what he was instructed
to do on all investigations, so yes.
Chairman Leahy. OK. What was the special sensitivity about
this?
Mr. Schlozman. Well, anytime we are dealing in a pre-
election period and anytime the Civil Rights Division is going
to be going in and making inquiries on phone calls, it
immediately alerts the--I mean, those things make the
newspaper. It gets the attention, and we wanted to make sure
that we were not going off half-cocked in any jurisdiction.
So--
Chairman Leahy. Apparently that was not the case in
Missouri, however.
Mr. Schlozman. Well, Senator, I mean, again, that is a
completely different case that was 2 years later after the
election of--
Chairman Leahy. Let's go back to Minnesota. Let's go back
to Minnesota. Did you restrict the Minnesota officials with
whom Rich could speak in conducting his investigation? Did you
tell him there were certain Minnesota officials he could not
speak with?
Mr. Schlozman. I instructed my voting counsel to, once I
got the allegation in, that this was something that we should
be looking into. The Secretary of State is the State's chief
election official, and so the allegation, as I understand it,
was that she had come up with some kind of interpretation that
was going to be potentially discriminatory with regards to
Native Americans using tribal ID. And so the natural first
person to go to would be the Secretary of State to figure out
what the interpretation is. Nobody killed any investigation.
Chairman Leahy. Well, what Justice Department employees
were involved in the decision not to go forward at that point?
Mr. Schlozman. I don't know who would have been responsible
for not going forward, because I certainly did not give any
kind of instruction to not pursue the investigation.
The instruction that came from my voting counsel was to go
ahead and contact the chief election official, which is the
Secretary of State. If there was information there that proved
valuable, then any investigation could be followed up.
So I have been perplexed at the suggestion that somehow the
direction to contact the Secretary of State killed the
investigation. I don't know why that would be. I mean, that was
the first step.
Chairman Leahy. Did you ever discuss anything about former
U.S. Attorney Heffelfinger with Monica Goodling?
Mr. Schlozman. No, Senator.
Chairman Leahy. Flat no.
Mr. Schlozman. Flat no.
Chairman Leahy. Kyle Sampson?
Mr. Schlozman. No. I can--
Chairman Leahy. No, you did not?
Mr. Schlozman. I can cut this off by saying I didn't talk
about Mr. Heffelfinger with anyone.
Chairman Leahy. So nobody at the Justice Department or the
White House?
Mr. Schlozman. That's correct.
Chairman Leahy. And you didn't discuss with anybody there
about his investigation?
Mr. Schlozman. No.
Chairman Leahy. Or his role in it?
Mr. Schlozman. No.
Chairman Leahy. My time is up. I will yield to Senator
Feinstein, and I will have further questions.
Senator Feinstein. Thank you very much, Mr. Chairman.
I wanted to ask you about Arizona, if I might. In April of
2005, the Justice Department informed Arizona that the Help
America Vote Act allowed the State to require photo IDs when
issuing provisional ballots to voters.
Chairman Leahy. Excuse me, Senator. A vote has started. I
am going to go to vote, but finish your questions.
Senator Feinstein. Alright.
Chairman Leahy. And would you please recess subject to the
call of the Chair?
Senator Feinstein. Yes, I will. Thank you.
Chairman Leahy. I will be right back.
Senator Feinstein. [Presiding.] The Elections Assistance
Commission disagreed with DOJ, and in September of 2005, you
signed a letter to Arizona stating that the Act does not allow
the State to require IDs when voters cast provisional ballots.
Were you involved in the drafting of the initial letter in
April of 2005?
Mr. Schlozman. I don't believe that I was involved in that.
I think that that was--I mean, it was signed by my superior,
and I don't believe that I was involved in the drafting. I may
have looked at it, but I don't--
Senator Feinstein. Do you know who was involved in that
letter?
Mr. Schlozman. It would have been probably--I mean, the
voting counsel in the front office.
Senator Feinstein. Was anyone from the White House involved
in drafting that initial letter?
Mr. Schlozman. No.
Senator Feinstein. Did Hans von Spakovsky object to the
interpretation that was spelled out in the second letter?
Mr. Schlozman. I don't recall him objecting. I mean, we
were going over the facts of the HAVA statute and clarified
what I thought my interpretation was, and I think he concurred
in that.
Senator Feinstein. Alright. Let me go, as others have, to
Mr. Heffelfinger. What role, if any, did Tom Heffelfinger's
efforts to protect the voting rights of Minnesota's Native
American communities have to do with placing him on the
Department's termination list?
Mr. Schlozman. Senator, I have no idea.
Senator Feinstein. Did you ever talk to Kyle Sampson or
Monica Goodling about him?
Mr. Schlozman. No.
Senator Feinstein. Did you talk to anyone else in the
Attorney General's or Deputy Attorney General's office about
his performance?
Mr. Schlozman. No.
Senator Feinstein. Did you ever talk to anyone in the
Attorney General or the office about his request that DOJ look
into possible election-related discrimination against Native
Americans in Minnesota?
Mr. Schlozman. Did I speak with anyone in the AG's office
or the DAG's office? Is that your question?
Senator Feinstein. Yes.
Mr. Schlozman. No. The answer is on.
Senator Feinstein. Did you speak with anybody about it?
Mr. Schlozman. I mean, presumably my voting counsel, but, I
mean--and, you know, the chief of the Voting Section.
Senator Feinstein. Well, is it true that Mr. Heffelfinger
made a request?
Mr. Schlozman. These requests were coming usually directly
into the Voting Section, and based on that article it sounds
like--from the Los Angeles Times, it sounds like that is the
same thing that happened in that case.
Senator Feinstein. No, but when you have a U.S. Attorney in
an area who says, ``Whoa, I think we have a problem here, we
should look into it,'' don't you look at that?
Mr. Schlozman. Well, and, Senator, it sounds like we did
look into it. We directed the Voting Section chief to contact
the Secretary of State to launch an investigation, and
contacted the Secretary of State.
Senator Feinstein. But DOJ didn't launch an investigation.
Mr. Schlozman. I don't know what happened--
Senator Feinstein. I just find it a little--you know, you
have ACORN in one State where it is being solved by the locals,
and yet, boom, you move in and you put forward indictments, one
of which was wrong. And here you have Native Americans who are
going to be denied their right to vote, quite possibly, because
of a certain ID, and you say, ``Well, it is up to the Secretary
of State.''
Mr. Schlozman. Senator, the investigation to figure out
what this alleged interpretation was that was going to
potentially disenfranchise Native American voters is what the
allegation was, and my voting counsel instructed the chief of
the Voting Section to contact the Secretary of State, who
apparently was responsible for this interpretation, and figure
out what was going on. I mean, I think that was the
commencement of an investigation.
Senator Feinstein. Well, I accept that as your answer. I
just find it strange.
Now, Monica Goodling testified last month before the House
that there were issues with Tom Heffelfinger's performance
because, at least in her view, he was spending an excessive
amount of time on Native American issues. How would she know
that?
Mr. Schlozman. I have no idea.
Senator Feinstein. You have no idea. And yet this was your
Department, and you had Heffelfinger calling you. And you say
you never talked to Monica Goodling about it.
Mr. Schlozman. One, Mr. Heffelfinger did not call me at any
point.
Senator Feinstein. Well, who did he call?
Mr. Schlozman. According to the Los Angeles Times, he
apparently--
Senator Feinstein. No, I am asking--
Mr. Schlozman.--called the Voting Section.
Senator Feinstein. I am asking you according to your
knowledge.
Mr. Schlozman. I mean, I don't know. You know, I did not
remember this incident at all, and still actually don't
remember all the specifics. I'm basing my statements on the
article from the Los Angeles Times.
Senator Feinstein. So you are saying essentially you knew
nothing about that?
Mr. Schlozman. That the--I'm saying that today, I mean, do
I recall this conversation that I apparently had with Mr. Rich?
No. I mean, I can't tell you that I recall that conversation. I
have no reason to doubt it, but, I mean, I can't recall a
conversation that occurred almost 3 years ago when, you know,
it was one of probably a thousands complaints that we got from
the Division--into the Division in October of 2004.
Senator Feinstein. I am very puzzled by this indictment of
the four workers, when the State was already into it and taking
care of it, and yet in other instances the Department didn't.
Mr. Schlozman. I am not sure where the suggestion that the
State is--
Senator Feinstein. You can understand how some of us might
feel that it is politically directed.
Mr. Schlozman. Senator, I am not aware that the State was
ever--I mean, these are violations of a Federal statute, the
anti-fraud provision of the National Voter Registration Act. So
I'm not aware that the county prosecutor's office was ever even
looking at this.
ACORN certainly did send a letter to the county prosecutor,
and then the next day, the Kansas City Board of Election
Commissioner sent a letter to the FBI, to the U.S. Attorney's
Office, and I think also to the county prosecutor. But I'm not
aware that the county was ever even looking at this.
Senator Feinstein. So you are saying then, the only
decision you made was the decision to file an indictment prior
to the election.
Mr. Schlozman. At the direction of the Public Integrity
Section, yes.
Senator Feinstein. OK. I am glad we cleared that up. Thank
you very much.
I am going to recess the hearing now, and please, you take
a break, and I am not excusing you because I think members of
the panel will be back. So thank you very much.
Mr. Schlozman. Thank you.
[Whereupon, at 3:41 p.m. the hearing was recessed.]
AFTER RECESS [4:07 p.m.]
Chairman Leahy. We can be in order.
Incidentally, Mr. Schlozman, during the Missouri case there
were all kinds of leaks that came out to the press from the
Department of Justice, talking about--or at least the press
treated them as being leaks from your office, and others. And
as a result, people were calling in and saying, am I going to
be prosecuted if I go to vote? Are there going to be mass
arrests?
Do you know anything--are you aware of any--any, any
scintilla--of information leaked from the U.S. Attorney's
Office or the Department of Justice to the press in regards to
the Missouri case?
Mr. Schlozman. I am not aware of any--
Chairman Leahy. Turn your microphone on, please.
Mr. Schlozman. I am not aware of any leaks, Senator, at
all.
Chairman Leahy. None whatsoever?
Mr. Schlozman. None.
Chairman Leahy. Are you aware the press indicated that some
of those leaks were coming either from the U.S. Attorney's
Office or the Department of Justice?
Mr. Schlozman. Candidly, Senator, today is the first time
I'm ever hearing about any press reports of leaks.
Chairman Leahy. OK. Thank you.
Were you aware of press reports suggesting that a number of
people were going to be indicted beyond the ones we've
discussed?
Mr. Schlozman. I'm not aware of any of those reports, and
certainly my office had no intentions of expanding that
investigation.
Chairman Leahy. Well, you were serving as Acting Attorney
General for Civil Rights. You approved the pre-clearance under
Section 5 of the Voting Rights Act of a voter photo
identification provision from the State of Georgia.
Now, you know that decision became the focus of extensive
criticism about the management of the Voting Section. According
to a memorandum that was obtained by the press and has now been
made public, four of the five career attorneys were tasked with
reviewing that law, found it had a negative impact on the
voting rights of Georgia's minorities, predominantly African-
Americans. Four out of five.
As a consequence, these career--career--attorneys
recommended that the Department refuse to approve the change.
The only attorney who recommended approving the pre-clearance
is someone you hired. Is that correct?
Mr. Schlozman. No, that is not correct.
Chairman Leahy. OK. Who did hire the one person who
approved it?
Mr. Schlozman. The person who recommended pre-clearance was
the chief of the Section, John Tanner, and I'm the one who
promoted him to chief of the Section. And the chief of the
Section recommended pre-clearance in the Georgia ID.
Chairman Leahy. So he was promoted by you to be chief?
Mr. Schlozman. He was. Actually, his--he was--his promotion
occurred the day before I took over as the Acting, but he was
promoted during my tenure as--as--in the Division to Chief of
the Voting Section. Correct.
Chairman Leahy. So promoted by you or not?
Mr. Schlozman. I guess, as a technical matter, he was not
technically promoted by me. I mean, I didn't have the final
decisionmaking authority on hiring decisions.
Chairman Leahy. Who did?
Mr. Schlozman. I'm sorry?
Chairman Leahy. Who did?
Mr. Schlozman. I guess it would have been Assistant
Attorney General Acosta.
Chairman Leahy. Now, in 1994 the Voting Section considered
a voter identification requirement in Louisiana that was less
restrictive. They found it violated the Voting Rights Act. Your
pre-clearance of the law in Georgia came on August 27th, just a
day after the career staff recommended objecting to the law. Is
that correct?
Mr. Schlozman. Again, Senator, the career Section chief
recommended that the matter be pre-cleared.
Chairman Leahy. Now, what about the other four? There's
five people: four recommended against it, one recommended for
it. You went ahead and OKed it even though a less restrictive
one had been turned down in Louisiana a few years before. Is
that correct?
Mr. Schlozman. I pre-cleared--I--well, actually that's not
correct. The--under the regulations governing Section 5, the
chief of the Voting Section is delegated responsibility to pre-
clear things. I--I--he sent it up to me for approval and I
approved it, but it was his actual decision under the
regulations that govern Section 5 submissions.
Chairman Leahy. And you're aware of the fact that the
reason that four of the five had objected to it is that they
felt it suppressed African-American voting in Georgia. Is that
correct?
Mr. Schlozman. I was aware of their recommendations and--
Chairman Leahy. OK.
Mr. Schlozman. Yes.
Chairman Leahy. Now, how much experience did you have in
enforcing or litigating under the Voting Rights Act at that
point?
Mr. Schlozman. At that point, probably a little over 2
years.
Chairman Leahy. Had you litigated at all under it?
Mr. Schlozman. No. I mean, I'd supervised the Voting
Section in my role as a Deputy.
Chairman Leahy. OK. And the one staffer who agreed with
you. How long had he been working in the Section, the Chief of
the Section? How long had he been in that Section?
Mr. Schlozman. Oh, probably, I don't know, 15, 20 years. I
mean, I don't know. I think he'd spent time outside of the
Voting Section in other sections as well, but I--
Chairman Leahy. And the four who recommended objecting to
it. How many were with the Section when you left in March of
2006?
Mr. Schlozman. I--I don't know. I mean--
Chairman Leahy. Let me ask you this.
Mr. Schlozman. Yeah.
Chairman Leahy. Did you or anyone from the Civil Rights
Division of the Judicial Committee have contact with proponents
of the Georgia voter ID law before it was passed?
Mr. Schlozman. I mean, I didn't. I don't know what other
contacts other people might have had.
Chairman Leahy. Are you aware of anybody else having
contacts with them?
Mr. Schlozman. I was not aware of other people having had
contacts, no.
Chairman Leahy. You sure?
Mr. Schlozman. Yes.
Chairman Leahy. Did you or anyone from the Justice
Department have contact with proponents of the Missouri voter
ID law?
Mr. Schlozman. I'm not aware of any, no.
Chairman Leahy. And are you aware that there's been a
complaint filed with the Justice Department's Office of
Professional Responsibility complaining about the Georgia pre-
clearance evaluation process and the pressure placed on career
staff during the Georgia pre-clearance process?
Mr. Schlozman. I am aware that there was a complaint raised
by the individuals involved, yes.
Chairman Leahy. And then following the filing of that
complaint, you filed your own complaint. Is that correct?
Mr. Schlozman. On the Georgia ID?
Chairman Leahy. Uh-huh. The OPR complaint against one of
the career professionals involved in the recommendation to
reject the Georgia voter ID.
Mr. Schlozman. The complaint that I filed had nothing to do
with the Georgia ID submission. It was for--
Chairman Leahy. But it was against one of the career
professionals you had objected to the Georgia voter ID. Is that
correct?
Mr. Schlozman. There was an allegation of unprofessional
conduct, yes, that I did forward to the Office of Professional
Responsibility.
Chairman Leahy. OK. And you had--based on an e-mail that
you had seen of that--of that person's e-mail. Is that correct?
Mr. Schlozman. Yeah. At the direction of OPR, I was looking
at the e-mails.
Chairman Leahy. OK. How did you obtain the e-mails?
Mr. Schlozman. Again, at the direction of OPR. They asked--
Chairman Leahy. Do you normally monitor other career civil
servants' e-mails?
Mr. Schlozman. No. Again, at the direction of OPR we were
looking at this after one of the attorneys involved in--a
former attorney in the Section had contacted a target that we
were suing while he was still employed in the Division, saying,
I'm going to be leaving soon, let me go ahead and represent you
upon my departure, and he did that while he was still in the
Division. And we discovered it, and so then we contacted OPR.
They said, go ahead and do an investigation.
Chairman Leahy. And how did OPR provide that direction? Did
they surprise you by doing it or had you asked them to provide
it?
Mr. Schlozman. They did it in a letter.
Chairman Leahy. No, I don't think that was quite my
question. And perhaps, you know, I'm just a lawyer from a small
town in Vermont. I may not have asked it adequately. So let me
ask it again: how did OPR come to provide you that direction?
Mr. Schlozman. We had referred the matter to OPR and asked
them, and told them, that we had had this e-mail that we had
gotten from the target, and OPR said, look, we don't have the
capacity to go back. You've got a much better indication of--
Chairman Leahy. Had you suggested to them that you monitor
the employees' e-mails?
Mr. Schlozman. I don't remember if it was my suggestion. I
think it was their suggestion, actually, that it would be much
more efficient if we took the first cut at taking a look at it.
Chairman Leahy. Do you have the letter that they sent you?
Mr. Schlozman. Not with me, no. I mean, I--I--I think it
may be in the file, Senator. And, you know, in terms of turning
that over, I mean, I would be happy to take that back to the
Department if they'll--
Chairman Leahy. Turn it over.
Mr. Schlozman. I'll be happy to.
Chairman Leahy. Take it back to the Department. Let me tell
you right now, all these things we're asking you for, the e-
mails, the letters, everything else, I guarantee you, you'll be
back up here with a subpoena with the material.
You can either do it--I'm giving you the choice. Just so
you know, you have a choice in the matter. The choice is to
provide it voluntarily or provide it with a subpoena. Either
way, I guarantee you it'll be provided.
Senator Schumer?
Mr. Schlozman. Thank you.
Senator Schumer. Thank you, Mr. Chairman.
OK. Before, you mentioned, Mr. Schlozman, that you did
outreach to organizations for hiring.
Mr. Schlozman. Yes.
Senator Schumer. Name all of the conservative ones.
Mr. Schlozman. I know that--
Senator Schumer. Did you reach out to the Federalist
Society?
Mr. Schlozman. I did, yes.
Senator Schumer. OK. Name some other ones of that type.
Mr. Schlozman. I believe I talked to an individual at the
Heritage Foundation.
Senator Schumer. Heritage. OK. Any others?
Mr. Schlozman. I'm not aware of any, no.
Senator Schumer. Those are just the two?
Mr. Schlozman. Yes.
Senator Schumer. No Republican organization?
Mr. Schlozman. That's correct.
Senator Schumer. OK. How about any liberal ones? Did you
reach out to any of them?
Mr. Schlozman. Yes.
Senator Schumer. Who?
Mr. Schlozman. I know I reached out to the--it's in
Arizona, New Mexico, to various Native American groups.
Senator Schumer. No, that's not a liberal group. That's a--
Mr. Schlozman. Well, I mean, I--and my--
Senator Schumer. Did you reach out to the equivalent of the
Federalist Society or--
Mr. Schlozman. At my direction, Senator, I had the chief of
my Voting Section reach out to a number of liberal
organizations.
Senator Schumer. No. I'm asking you: you reached out to the
Heritage Foundation, you reached out to the Federalist Society.
You reach out to Cato Institute, even though they're not a
legal organization?
Mr. Schlozman. No, Senator. No.
Senator Schumer. OK. So name some liberal ones.
Mr. Schlozman. Senator, I--
Senator Schumer. Right down the middle. If you're--
Mr. Schlozman. Most--most outreach at the Department was
done by the Office of Attorney Recruitment and Management.
Senator Schumer. I'm asking you. I'm not asking other
people, I'm asking you. You said before that you didn't
consider any of these issues. You have a glaring contradiction,
that on the one hand you're telling people, take their
political organizations off, but then, of course, was relevant
in other ways that you--you bragged about them. So did you
reach out? You, Brad Schlozman, reach out to any liberal
organizations?
Mr. Schlozman. I don't--I did not personally do it.
Senator Schumer. OK.
Mr. Schlozman. I had others do it on my behalf.
Senator Schumer. Yes. Thank you. OK.
You think that's--you think that was even-handed? You think
that was down the middle?
Mr. Schlozman. Yes, Senator. Because I--
Senator Schumer. Why did you reach out to the conservative
ones and you had others reach out to the liberal ones? And give
me the name of one liberal one that you ordered--asked--give me
the name of the person you told to call, and the organization
you told him to call.
Mr. Schlozman. John Tanner--
Senator Schumer. Yeah.
Mr. Schlozman.--the chief of the Voting Section. We had--I
had him reach out to--I know, to various organizations we work
with.
Senator Schumer. Like, give me a name of a liberal
organization. You just said that you--you were very
definitive--
Mr. Schlozman. Yes.
Senator Schumer.--that you had someone else reach out to
``liberal'' organizations. John Tanner. Name a liberal
organization he reached out to.
Mr. Schlozman. I believe he reached--I--my understanding is
that he reached out to MALDEF, to NAPABA, to--I mean, I don't
have the exact list of people who he reached. I mean, I said,
reach out to organizations with whom you work.
Senator Schumer. Yeah. But MALDEF is not the equivalent of
the Heritage Foundation. The Heritage Foundation and the
Federalist Society have an ideological view to them. These
others are Native American organizations, Hispanic-American
organizations. Those are different.
Mr. Schlozman. Yeah.
Senator Schumer. So you want to think about it? Did Mr.
Tanner reach out to liberal organizations that would be sort of
the mirror image, if you will, of the Heritage Foundation and
the Federalist Society?
Mr. Schlozman. Senator, I guess--and what my response would
be, I just don't recall, today, exactly what--I mean, I'm happy
to check what organizations he--
Senator Schumer. OK. All right.
Mr. Schlozman.--he reached out to.
Senator Schumer. Yeah. Again, I think the record here is
speaking for itself.
When Kyle Sampson came before this committee he testified
that ``in the end, eight,'' I'm emphasizing eight, ``total U.S.
Attorneys were selected for replacement: Bud Cummins in mid-
2006, and the other seven in a group in early December of
2006.'' Based on everything you know, was that a true or false
statement?
Mr. Schlozman. My understanding is--is that other U.S.
Attorneys--from what I've read in the newspapers, and that's
all I'm basing it on, that other U.S. Attorneys were also
fired.
Senator Schumer. Was Graves the ninth, for instance?
Mr. Schlozman. Based on the newspaper reports, which is all
I have to base that on.
Senator Schumer. You had no involvement in the Graves
situation?
Mr. Schlozman. That is absolutely correct.
Senator Schumer. OK. Next, did Monica Goodling play any
role in your becoming interim U.S. Attorney?
Mr. Schlozman. I believe she did, yes.
Senator Schumer. Can you describe it?
Mr. Schlozman. Yes. The--when I read about the opening for
the U.S. Attorney position, which I read about the day after
Mr. Graves resigned, I went to the three individuals who I
thought were responsible for the appointment of interim U.S.
Attorneys, and that would be Monica Goodling, Kyle Sampson, and
David Margolis, and I expressed my interest in the position.
And this would, again, be about 2 weeks before I was
selected, because at the time there was no even First Assistant
to assume the--the Acting U.S. Attorney role.
Senator Schumer. And at the time you went to these three
people, how many cases had you tried?
Mr. Schlozman. Zero.
Senator Schumer. Zero. No criminal cases?
Mr. Schlozman. I had--I had helped supervise the--
Senator Schumer. You hadn't tried a case?
Mr. Schlozman. That is correct, Senator.
Senator Schumer. And no civil cases?
Mr. Schlozman. Right. I mean, I'd been involved in civil
litigation but I had not been in trial.
Senator Schumer. Uh-huh. OK.
And you think that was--you think you deserve to be--with
that--with so little experience, and you were chosen so
quickly, do you want to explain that to people?
Mr. Schlozman. Well, at the initial matter, Senator, in
terms of the timing, I mean, they had to have someone on board
within 2 weeks--
Senator Schumer. Yeah.
Mr. Schlozman.--because there was not even a First
Assistant to assume the Acting U.S. Attorney role.
Senator Schumer. Right.
Mr. Schlozman. So that explains the prompt timing. But in
terms of the--my selection and experience, I mean, I think it's
not uncommon that the U.S. Attorney doesn't have a lot of
litigation experience. I mean, my job--
Senator Schumer. How old were you at that time?
Mr. Schlozman. I'm sorry?
Senator Schumer. How old were you at that time?
Mr. Schlozman. Thirty-five.
Senator Schumer. Got you. OK.
Let me ask you, in general, what's your relationship with
Ms. Goodling? Is it just--
Mr. Schlozman. I mean, she's a colleague and--you know.
Senator Schumer. Uh-huh.
How often did you speak to her while you were in your
position in the Justice Department?
Mr. Schlozman. I'd see her in the hallway and she and I
were both on the fifth floor, so I'd, you know, occasionally
even chat, stop in to say hello.
Senator Schumer. Uh-huh. OK.
But it was nothing--you didn't deal with her all the time
on different issues?
Mr. Schlozman. No. No.
Senator Schumer. OK. Got it. All right.
Now, in written testimony you say something that makes no
sense to me. As had already been mentioned, you made the
decision to indict a number of individuals within a week of
2006, even though DOJ policy seems to counsel against taking
such action: ``While the ACORN matter arose in October,
Department policy did not require a delay of this investigation
and the subsequent indictments because they pertained to voter
registration fraud, which examined conduct during voter
registration, not fraud during an ongoing or contested
election. Consequently, the Department's informal policy was
not implicated in this matter.''
And this is yours: ``In sum, there was nothing unusual,
irregular, or improper about the substance or timing of these
indictments.''
Now, here's what I don't understand. Matt Friedrich,
counselor to the Attorney General, has testified during a
committee interview that he understood the policy very well. He
testified that in 2006, October, Kyle Sampson gave him a
document from Karl Rove. It's right here. Karl Rove gave
Sampson this document that suggested there was voter
registration fraud going on in Wisconsin in October. Here's how
he reacted when asked what he did with that document.
This is Mr. Friedrich. He said: ``Not a darn thing. I
didn't disseminate it, I didn't copy it, I didn't communicate
it down the chain of command, in substance or in form. I did
not need to review it for a lengthy period of time to know what
I was going to do with it.''
When asked to explain why, Mr. Friedrich said it was his
clear understanding that, because this was shortly before an
election and the red manual--again, I'll read it again just to
refresh your recollection, says on page 61, right here: ``Thus,
most, if not all, investigation of an alleged election crime
must await the end of the election to which the allegation
relates,'' and, as Senator Leahy pointed out, that is
underlined.
So let me ask you, was Mr. Friedrich, who was very well
respected, completely off-base?
Mr. Schlozman. Senator, again, I--
Senator Schumer. He didn't have any doubt. He just went
ahead and said, absolutely not, this is against Department
policy? It wasn't if, maybe, deterring voters from voting. It
was absolutely against policy. Was he off-base?
Mr. Schlozman. I don't know what the specific facts of the
Wisconsin case are. All I can tell you is, is that in
Missouri--
Senator Schumer. Wait a minute.
Mr. Schlozman.--our case involved--
Senator Schumer. He didn't even read the document. All he
had to do was see that this was a few weeks before the election
and you don't do it. Those of us--I'm not a U.S. Attorney, but
those of us who are around elections and the system of justice
know that that--those are the rules.
And no one before, I heard, has come up with the tortured
explanation that you did to Senator Leahy, that this isn't
going to deter a voter from voting. That's not the point of
this. The point of it is, it might influence an election. Isn't
that right?
Mr. Schlozman. Senator, I did not think it was going to
influence the election at all. And I contacted--
Senator Schumer. But that's not your judgment. You used
your own judgment, being 35 years of age, not having a wide
range of experience here, and you overruled something that is
very explicit in the--in the book, in the manual. Right?
Mr. Schlozman. I got my--
Senator Schumer. Isn't that what you did?
Mr. Schlozman. I got my direction from the Public Integrity
Section at the Department of Justice.
Senator Schumer. Yeah, I know. But, you know, you have to
make some of your own decisions here, too.
Did you know of this sentence in the--in the book?
Mr. Schlozman. I mean, I believe I was probably aware of
it, yes.
Senator Schumer. Yeah. And did you--you believe?
Mr. Schlozman. Well, I mean, Senator, I--I suppose I was
responsible for being aware of the--the Elections Crime Manual.
Again, I checked with the Public Integrity Section, which I was
required to do under the U.S. Attorney Manual, and sought
direction--
Senator Schumer. Uh-huh.
Mr. Schlozman.--on whether I was to wait. And we had a
grand jury that was going to be--
Senator Schumer. And Mr.--what was his name? DeSantos?
Mr. Schlozman. Donsanto. Yes.
Senator Schumer. He will state, if we ask him, explicitly,
with no reservation, he ordered you to do it or told you it was
OK to go ahead and do it?
Mr. Schlozman. That is correct.
Senator Schumer. OK.
Let me ask you this. Why do you think Mr. Friedrich
recoiled from even reading a document about a voter
registration fraud while you rushed to indict just before an
election? Is the law and the rules of the Department that
vague?
Mr. Schlozman. Well, I do know that we had a grand jury
session that I believe was meeting on October 31st to November
1st, and that's the grand jury to whom we'd been--we were going
to be presenting the information. It would have been, I
believe, in the return of information, so you can't use
different grand juries.
Senator Schumer. But you don't think it would have affected
the case to wait a week or two?
Mr. Schlozman. Well, it would have--it would have been
basically 8 weeks till that grand jury--
Senator Schumer. Would it have affected the case?
Mr. Schlozman. I don't think it would have affected the
case, no.
Senator Schumer. No. Of course not.
Let me say this. You say that ACORN indictments were not
unusual or irregular. How many cases that are similar can you
identify that have been brought within a week of an election
over the last 10 years?
Mr. Schlozman. Senator, I'm not able to give you any
specifics like that.
Senator Schumer. Well, then how can you say they weren't
unusual or irregular?
Mr. Schlozman. I was referring--attempting to refer to the
policy, and perhaps I stated it in--
Senator Schumer. Well, wait a minute.
Mr. Schlozman.--didn't state it very well.
Senator Schumer. Wait a minute.
Mr. Schlozman. Yeah.
Senator Schumer. Here you are, you're overruling a pretty
clear rule in this manual, and you say that's because they're
not unusual or irregular. And yet, when asked, you have no
evidence that they were or were not unusual or irregular. Isn't
that right?
Don't you think a conscientious lawyer, a conscientious
public servant would have gone and checked? Did you check? Did
you check and see if there were other cases that were brought
in a similar amount of time before an election?
Mr. Schlozman. Senator, I was told that there was no policy
implicated here and that was why I went forward.
Senator Schumer. Uh-huh. I'm asking you: did you go check
and see if there were any other cases?
Mr. Schlozman. That had been filed in that time period?
Senator Schumer. Yeah. Election cases.
Mr. Schlozman. No. No. The answer is no.
Senator Schumer. You did not check?
Mr. Schlozman. I did not check.
Senator Schumer. OK.
And let me ask you this: then how can you say they're
unusual or irregular? You said you prepared for 25 to 30 hours.
All right. Do you always choose your words so carelessly?
Mr. Schlozman. Senator, in this case perhaps I did choose
carelessly.
Senator Schumer. OK.
Now, you dismissively refer to the Department's policy as
``informal''. Policy was written, right?
Mr. Schlozman. It has been described to me, on the timing
issue, as an informal policy. And that's the--
Senator Schumer. I see. So--
Mr. Schlozman.--the phrase that the Public Integrity
Section used.
Senator Schumer.--this is--this book is a book of informal
policies? Let me see here. I don't see that on the cover here.
Mr. Schlozman. Senator--
Senator Schumer. It doesn't say ``Informal Policies of the
Justice Department--choose to follow them or not as you wish.''
I don't see that written here.
Mr. Schlozman. Senator, it has been described by the Public
Integrity Section as an informal policy.
Senator Schumer. Uh-huh.
To you verbally?
Mr. Schlozman. Yes.
Senator Schumer. Is there any indication in writing that
they regarded this as informal?
Mr. Schlozman. I--I mean, there may be. I don't know.
Senator Schumer. OK.
So can you tell me what the difference is between a formal
policy and an informal policy?
Mr. Schlozman. My understanding of it is, is that the
Department, again, as had been described to me as, is the
Department does not time indictments to an election. So a
formal policy has been described to me as, if they said there
will absolutely be no indictments prior to the election, that
would be something more formalistic.
Senator Schumer. Right. OK. Uh-huh. All right.
Let me ask you this. And I appreciate my colleague. I just
asked him if I might go on, since I'm over my time.
Who approved the ACORN indictments? Name names.
Mr. Schlozman. Craig Donsanto in the Public Integrity
Section.
Senator Schumer. And you. No one else?
Mr. Schlozman. Well, there's a Department review process,
but I don't know what--I mean, if there--
Senator Schumer. Who did you talk to about the indictments,
other than the--other than Mr. Donsanto?
Mr. Schlozman. I spoke with individuals in the--in the
Deputy Attorney General's Office who advised--who asked me to--
Senator Schumer. Give me some names there, please.
Mr. Schlozman. Mike Ellston would be the only person with
whom I spoke, which is the Deputy Attorney General's Chief of
Staff.
Senator Schumer. What did he tell you?
Mr. Schlozman. He said, ``Wait till you hear from us.''
Senator Schumer. Uh-huh.
And did you?
Mr. Schlozman. Yes.
Senator Schumer. And they told you, ``Go ahead''?
Mr. Schlozman. Yes.
Senator Schumer. OK.
Who else?
Mr. Schlozman. That was it.
Senator Schumer. That was the only other person you spoke
to?
Mr. Schlozman. That is correct. That is correct.
Senator Schumer. And did anyone call you about these
particular indictments and urge you to move forward or not move
forward from either inside or outside the Justice Department?
Any other person?
Mr. Schlozman. No.
Senator Schumer. Not a one?
Mr. Schlozman. Not a one.
Senator Schumer. OK.
So, in other words there was no communication between you
and the White House in any way on this issue?
Mr. Schlozman. That is absolutely correct.
Senator Schumer. Or with any Justice Department official
and the White House, as far as you know.
Mr. Schlozman. As far as I know.
Senator Schumer. You don't know or you--
Mr. Schlozman. I don't know.
Senator Schumer. OK.
How about Republican Party officials from Georgia or
anywhere else? Any--any--did you speak to anyone of that--who
would meet that description?
Mr. Schlozman. I don't have--no.
Senator Schumer. No.
Mr. Schlozman. No.
Senator Schumer. OK.
Do you know of anyone who did in the Justice Department?
Mr. Schlozman. I do not.
Senator Schumer. OK.
How about elected officials in Georgia or anywhere else?
Mr. Schlozman. On--on the ACORN indictments?
Senator Schumer. Uh-huh.
Mr. Schlozman. No.
Senator Schumer. I'm sorry. I'm saying ``Georgia'' here. I
should be saying ``Missouri''. Sorry. So let me ask them again:
Any Republican Party officials from Missouri or anywhere else?
Mr. Schlozman. No.
Senator Schumer. OK.
And elected officials in Missouri or anywhere else?
Mr. Schlozman. No.
Senator Schumer. OK.
Any advocacy groups?
Mr. Schlozman. No.
Senator Schumer. So you spoke to no one, no one, no one?
Mr. Schlozman. Outside of my office and the individuals I
identified in the Public Integrity Section and the Deputy
Attorney General's Office.
Senator Schumer. OK. I think that finishes my questions.
So, Senator Whitehouse?
Senator Whitehouse. Thank you.
Just in terms of the volume that Senator Schumer's been
looking at, the preface says that the book is ``intended to
assist Federal prosecutors and investigators in performing this
important part of their mission, i.e., successful investigation
and prosecution of corruption in the election process.''
It says that it is ``intended as a reference tool for
personnel employed by the Department of Justice, including U.S.
Attorney's Offices and the Federal Bureau of Investigation.''
It says that ``the discussion in this book represents the views
and the policies of the Criminal Division.''
It says that it ``addresses how the Department handles all
forms of Federal election offenses.'' It says that it
``summarizes the Department's policies, as well as key legal
and investigation considerations related to the investigation
and prosecution of election crime.''
Did anybody, in the course of this discussion, ever stick
up for the clearly articulated policy not to indict,
immediately pre-election, an election offense? Did anybody
stick up for it? Clearly you didn't. Let me ask you this: were
you even aware of that at the time of the indictment?
Mr. Schlozman. I mean, I was aware of the general policy,
that the Department refrains from indicting certain election-
related crimes before an election, which is why--
Senator Whitehouse. Were you aware of this section of
this--
Mr. Schlozman. I mean, I don't remember. I don't recall
specifically looking at that pages--at those pages, but I did
contact the Election Crimes Branch within the Public Integrity
Section because I knew--
Senator Whitehouse. Well, you're obliged to do that by the
U.S. Attorney's manual, aren't you?
Mr. Schlozman. That's correct. Yes.
Senator Whitehouse. And you indicated that the--I forget
the name of the gentleman you spoke to. DeSanto?
Mr. Schlozman. Donsanto. Yes.
Senator Whitehouse. Donsanto. That you then went ahead to
announce the indictment at his ``direction'' was the word you
used twice.
Mr. Schlozman. Yeah. I mean, when I--we asked him if we
should go forward or if we should refrain from bringing the
case until afterwards, and he said if you've got an indictable
case, bring it.
Senator Whitehouse. The U.S. Attorney's manual doesn't give
him a directive role on this, does it? Doesn't it say that the
U.S. Attorney is obliged to consult?
Mr. Schlozman. I think, yes, it does say that we are
required to consult him.
Senator Whitehouse. To consult.
Mr. Schlozman. Yes.
Senator Whitehouse. OK.
Did anybody in the process anywhere--clearly he didn't
stick up for this guideline. He gave you a green light to go
ahead. You didn't stick up for the guideline. Did anybody in
your staff have any reservations about the timing of this?
Mr. Schlozman. Senator, my--no, as a matter of fact. And
we--we contacted the Public Integrity Section and they're the
ones who handled the Department's policy on this issue.
Senator Whitehouse. So up and down throughout the entire
Department of Justice, not one person stuck up for this rule in
the Federal Prosecution of Election Offenses Manual?
Mr. Schlozman. My--the Public Integrity Section--we
consulted with them and they're the ones who are the experts on
this issue. They said no policy was even implicated, and so we
went forward.
Senator Whitehouse. No policy was even implicated?
Mr. Schlozman. That's what Public Integrity Section said.
Senator Whitehouse. But--
Mr. Schlozman. They're the experts on this issue, Senator.
Senator Whitehouse. You said that you were aware that there
was a policy in the Department against these immediate pre-
election indictments.
Mr. Schlozman. Right. And--
Senator Whitehouse. If they said no policy was even
implicated, did you remind them that there was actually this
policy out there, or--
Mr. Schlozman. Senator, let me clarify. What they said was,
is the policy is that you do not do an investigation that would
require the interviewing of individual voters. And because our
case did not involve any specific election, it involved voter--
false voter registration forms and didn't require any
individual voters to be interviewed, that there was no policy
implicated. Now, that was their interpretation and they're
responsible for administering the Election Crimes Manual.
Senator Whitehouse. You also indicated to the media at the
time--pre-election--you had press conferences about this pre-
election, didn't you?
Mr. Schlozman. No, we did not.
Senator Whitehouse. Did you have a press statement?
Mr. Schlozman. Yes.
Senator Whitehouse. OK.
And you indicated that in the press statement that this was
a national investigation?
Mr. Schlozman. Yes, we did, at the direction of the Public
Integrity Section.
Senator Whitehouse. What was national about it?
Mr. Schlozman. Senator, I'm not able to talk about any of--
any part of that investigation.
Senator Whitehouse. What do you mean, you're not able to
talk about it? This was your investigation, wasn't it?
Mr. Schlozman. Senator, I'm just not able to talk about any
other parts of that criminal matter like that. I mean, that's--
that's prosecutorial--I mean, that's privileged information and
I'm just not able to go into any other parts of an ongoing
Department investigation.
Senator Whitehouse. OK.
But your testimony is that when you said that it was a
national investigation--you're the one who brought that up, not
me--that the reason for that is because it--because there are
ongoing, other investigative matters that are confidential.
Mr. Schlozman. I'm saying that I made that statement at the
direction of--of Public Integrity Section.
Senator Whitehouse. At the direction--the Public Integrity
Section is directing what you say in your press releases as a
U.S. Attorney?
Mr. Schlozman. Senator, I--I made--they strongly suggested
that I make that statement in response to any press inquiries,
and I--I followed their guidance.
Senator Whitehouse. OK.
And you have no idea why they would want you to mention
that it was a national investigation, and when I ask you how
it's a national investigation you say, oh, no, no, that's
confidential--why would they want to raise that confidential
aspect of the investigation to the press immediately before an
election?
Mr. Schlozman. Senator, I'll let them speak for themselves.
And to the extent that I have certain knowledge of--of other
parts of the investigation, I just can't talk about that.
Senator Whitehouse. What is ``ACORN''?
Mr. Schlozman. I forget the exact word that it stands--
Senator Whitehouse. Not what it stands for. What is it?
It's an organization?
Mr. Schlozman. It's an organization that, among--I think,
other things, it seeks to register individuals to vote. It may
have other functions, but that's certainly one of them.
Senator Whitehouse. One of their primary functions is to
seek to register individuals to vote. Correct?
Mr. Schlozman. Correct. Correct.
Senator Whitehouse. Do you have an opinion as to the
political affiliation or bent of the organization or the people
that they seek to organize to vote?
Mr. Schlozman. No.
Senator Whitehouse. You don't consider them to be, say, an
organization that would be more likely to register Democratic
voters?
Mr. Schlozman. Senator, my understanding is that they do
employ many individuals who are not wealthy. I mean, they're
poor individuals. But in terms of registration, I'm not sure
that--I certainly don't have any knowledge that they're
targeting individual--or not targeting other individuals. I
mean, they're registering individuals to vote.
Senator Whitehouse. You don't associate them as a Democrat-
leaning organization?
Mr. Schlozman. I mean, Senator, I--no. I mean--I mean, they
probably do have more Democrats and Republicans. I mean, maybe
they are. I mean, I--but I don't certainly discriminate in who
I target for a prosecution. And they were very cooperative in
this case. I mean, they were--they were actually the victims in
this case.
Senator Whitehouse. Well, I think at this point I have just
about had enough here. So I think at this point, Mr. Schlozman,
you are excused.
Shall we leave the record open at this point or should we
just proceed to the next? One week. OK.
Mr. Schlozman, if you'd like to add to your testimony in
any respect, the hearing will be--the record of this hearing
will be held open for another week so that you may do so.
Mr. Schlozman. Thank you.
Senator Whitehouse. Thank you. Thank you for your
testimony.
Mr. Schlozman. Thank you.
[Whereupon, at 4:44 p.m. the hearing was paused and resumed
back on the record at 4:45 p.m.]
Senator Whitehouse. Our second witness today is Todd
Graves, the former U.S. Attorney for the Western District of
Missouri, currently a lawyer in private practice with Graves,
Bartel & Marcus, LLC.
Mr. Graves was nominated by President Bush to be U.S.
Attorney for the Western District of Missouri in 2001 and
served in that position from October, 2001 until his
resignation in March, 2006.
Mr. Graves received a bachelor's degree summa cum laude in
agricultural economics from the University of Missouri in 1988,
and his law degree and a Master's degree in Public
Administration from the University of Virginia in 1991.
After law school, Mr. Graves was an Assistant U.S. Attorney
for the State of Missouri, and then in private practice with
the Bryant Cave law firm until his election as Platte County
Prosecuting Attorney in 1994. At the time of his election he
was the youngest full-time prosecuting attorney in Missouri and
he held that office until his appointment as U.S. Attorney in
2001.
As U.S. Attorney, Mr. Graves oversaw a staff of 60
attorneys and 60 non-attorney support personnel in Kansas City,
Jefferson City, and Springfield, Missouri. During Mr. Graves'
tenure as U.S. Attorney, felony filings in his district
doubled, rising from approximately 500 cases per year to 1,000.
I thank Mr. Graves for coming to appear before the
committee today and I look forward to his testimony.
Mr. Graves, would you please stand to be sworn?
Mr. Graves. I will.
[Whereupon, the witness was duly sworn.]
Senator Whitehouse. Thank you. Please be seated.
STATEMENT OF TODD GRAVES, FORMER U.S. ATTORNEY, WESTERN
DISTRICT OF MISSOURI, KANSAS CITY, MISSOURI
Mr. Graves. Mr. Chairman, thank you for the opportunity to
address this body. I don't know if you remember, but we served
together on the Executive Working Group when you were the
Attorney General of the State of, I believe it was, Rhode
Island.
From 2001 to March 2006, I had the honor of serving as the
U.S. Attorney for the Western District of Missouri. From
January 1995 to September of 2001, I was the elected State
prosecuting attorney for the Sixth Judicial Circuit, Platte
County, in Missouri. In total, I served nearly 12 years as a
public prosecutor. It was a privilege and I loved every minute
of it.
As a U.S. Attorney, I served at the pleasure of the
President. I will always be grateful for the opportunity
President Bush and my senior Senator, Kit Bond, gave me to
serve.
I believed in the goals of this administration. The number-
one criminal enforcement priority was the prosecution of felons
in possession of firearms, and my district rapidly climbed to
be number-one in the country in those cases.
In fact, it was just a few years ago that I sat before this
committee and testified about the success of that program in
our district and that is largely due to an Assistant U.S.
Attorney named Paul Becker.
From the first day--from my first day in office, long
before it was even a national priority, aggressively
prosecuting those who exploit children over the Internet was my
top local priority. From them to now, the Western District
continues to be a national leader in prosecuting Internet
predators.
Fair and sure enforcement of the death penalty was a
priority of this administration and we enforced the death
penalty. During my tenure, 10 percent of all those on Federal
Death Row had been sent there from my district. I personally
tried one of our death penalty cases and I was preparing to try
another when I left.
We doubled the number of felony cases filed per year from
500 to 1,000. We prosecuted corrupt officials and judges, major
drug traffickers, corporate thieves, cold-blooded killers, and
a pharmacist who, in the name of greed, watered down
chemotherapy drugs for thousands of cancer patients.
The Western District of Missouri is staffed by many
prosecutors who would rather try tough cases than sleep. We
had, and they continue to have, an exemplary record.
When I received a call from Mike Battle in January of 2006
telling me that I had ``served honorably and that I had
performed well, but that the decision had been made at the
highest levels of government that it was time to give another
person a chance to serve in my district'', I accepted that
without complaint.
In fact, I had previously made no secret among my U.S.
Attorney colleagues that I'd planned to leave office in 2006
and open my own law practice. I always assumed that the
administration knew that and wanted me to leave in time to
replace me before the 2006 elections and a possible change in
the Senate Majority and the Majority of this committee.
To this day, I bear no rancor or bitterness over that phone
call. I had long planned to go and it was the President's
prerogative. The private legal practice I started with my
partners in Kansas City has succeeded far beyond my hopes and I
am thankful, especially in light of current events, that I left
the Department of Justice over a year ago. I would have been
very happy to have stayed out of this situation altogether.
The public prosecutor in our system of justice bears a
tremendous responsibility. We delegate to the prosecutor vast
discretion in making decisions that can, with the full weight
and authority of the government, take a person's liberty,
property, reputation, and in some cases, their life. Those
decisions are not Democrat or Republican decisions.
Decisions of prosecutorial discretion--and I know that the
Chairman has been a prosecutor--are extremely difficult and
they cause good prosecutors to lie awake at night, grappling
for the right answer. But once a decision is made, the
prosecutor owns it. He or she bears the responsibility for that
decision.
Both as a State and Federal prosecutor, I acted as a
professional. If a decision came before me and there was clear
guidance, I followed it. On the other hand, if prosecutorial
discretion was required, I exercised my independent judgment:
no apologies and no excuses. I was responsible for my
decisions.
That is our system. Yet the system only works so long as
the people believe in the institution of public prosecutor. The
Department of Justice is a special place, with many talented
and motivated people. But each attorney who represents the
government bears a nearly sacred responsibility to uphold the
reputation and honor of that institution.
As I have heard former Deputy Attorney General Jim Comey
say, when an attorney appears in Federal court and announces
that he or she represents the United States of America, the
judge or jury accepts this as true and believes the next thing
that attorney says, not because of who they are, but because of
who they represent.
Although the reputation and honor of the Department of
Justice has been accumulated across many generations and many
fine prosecutors, it is easily lost. My hope and request from
this body, as an American citizen who no longer represents the
government, is that the politics of this situation can be set
aside and that all the parties in this process can work
together to quickly enhance and maintain the reputation and
honor of the Department of Justice to the benefit of our great
country.
[The prepared statement of Mr. Graves appears as a
submission for the record.]
Senator Whitehouse. Thank you, Mr. Graves. As somebody who
has served in a similar seat, I accept and agree with your
statements that it presents the prosecutor a nearly sacred
responsibility.
I think Deputy Attorney General Comey has, not only in the
statement that you quoted but in other statements he has made,
publicly and before these committees, set the bar where it
should be.
Let me go back to the call from Michael Battle. Did he,
when he indicated that they would be asking you to resign,
suggest that there was any performance-related reason?
Mr. Graves. He made it very clear that there weren't.
That's the first thing he said: there are no performance
issues. You have--he--I quoted from what he said: ``You've
served honorably and you've performed well, but the decision
has been made at the highest levels of government to give
another person a chance.''
Senator Whitehouse. And so no reference to misconduct
either?
Mr. Graves. None. None whatsoever.
Senator Whitehouse. So do you have any idea what Ms.
Goodling was getting at last month when she testified before
the House Judiciary Committee that the decision to remove you
as U.S. Attorney may have been related to an investigation by
the Department's Office of the Inspector General?
Mr. Graves. Yes. That--I know exactly what she was talking
about. I was immediately angry over that comment. I think it is
another example of those who have a bright spotlight cast on
them for their conduct, attempt to shift those things to the
people that--that were asked to leave.
I immediately contacted the Office of Inspector General. I
got a copy of that report. I released it to the press. What
that was, was in the context of an employment matter. We had
someone raise an allegation against me. And as you know, when
you're dealing with an employment matter, a whistle-blower is
something you have to deal with.
So we called the bluff of the person and I turned that in
to the Department of Justice. I initiated that investigation.
The investigation was conducted. It was about standing in a
picture line for a picture with the Vice President of the
United States.
The investigation found that I did nothing wrong.
Interestingly enough, another U.S. Attorney from another
district was standing next to me in the picture line. So, it
was--I think it was really a non-event.
I think the way that she offered that and left that sort of
laying out there without more meat on the bones was--I think it
was a slur against my reputation. I took it very personally.
That's why I immediately released the document.
The Office of Inspector General confirmed that they'd never
opened any other investigation against me. And I'd be happy to
have that investigation made a part of this record for
inclusion so that anybody can see it.
Senator Whitehouse. It will be done.
Mr. Graves. OK.
Senator Whitehouse. Were you, at the time, preparing to try
a death penalty case?
Mr. Graves. We had a case, a particular case, that has
still not been tried of a woman--I was a State prosecutor
before I was a Federal prosecutor and my expertise, if I ever
developed one, was sort of in the mental defense.
And we had a case where a woman was murdered, the
government alleged--it hasn't been tried yet--and her baby was
cut from her womb before she died. That case took place less
than 20 miles from where I was born in a rural part of the
State.
That was a very important case to me. That was literally
the only reason why I hadn't left the Department before,
because I--I had young kids and other things that I wanted to
do. But I wanted to stay around and try that case. We tried to
get it to go the previous fall. They'd postponed it. It was
supposed to go last year, and that is something that was left
undone.
Senator Whitehouse. Did you ask to stay on to pursue that
case at the time?
Mr. Graves. Yeah. I had very little contact with the
Department, other than Mr. Battle's call. I had some--a little
bit of back-and-forth from him. But I did contact my senior
Senator's office and I said I would like to stay to complete
this case.
Senator Whitehouse. And what signal did you get back from
the Department in respect to that?
Mr. Graves. And as I said to them, I'm perfectly willing--I
mean, I understand the objective and I'm perfectly willing, you
know, to move on. It's--it's--it's something that, you know,
doesn't--doesn't cause me a lot of concern, but that I'd like
to try this case. And the answer I got back is, we've
considered it and we want you to go ahead and go on.
Senator Whitehouse. And in terms of the decision, you were
informed that it came from the very highest levels of
government. Have you generated or become aware of any other
information more specifically where that decision came from?
Mr. Graves. No, I haven't. Frankly, it was something--
again, it did not--I just moved on. I accepted that. I didn't--
I didn't probe. I did sort of, you know, ask around if anyone
had heard anything just in general and nothing came back,
without even mentioning my situation. And I don't know any more
than that.
Senator Whitehouse. Did they ever tell you why?
Mr. Graves. They specifically told me--well, yes. They told
me it was because they wanted to give another person a chance
to serve. That's what they told me.
Senator Whitehouse. In 2005 when you were still the U.S.
Attorney, Mr. Schlozman, who's just testified here, was then
the Acting Assistant Attorney General in charge of the Civil
Rights Division.
Mr. Graves. Uh-huh.
Senator Whitehouse. He authorized a national Voter
Registration Act suit against the State of Missouri, and
Democratic Missouri Secretary of State Robin Carnahan. The
Department then filed this suit, accusing Missouri and Ms.
Carnahan of failing to eliminate ineligible people from lists
of registered voters. According to press accounts, the
Department did so over your reservations, that the case lacked
merit.
What were your reservations about the case? And did you
express reservations to the Department, and how were they
expressed?
Mr. Graves. Well, I had--I had had a run-in with the
Department that was very significant in 2003 over a cross
burning case. It was a case that had been mediated in front of
a Federal magistrate and there had been someone from the Civil
Rights Division at main Justice in the room when it had been
mediated and had authority. And as you know, Federal
magistrates don't do mediations unless everybody in the room
has authority to bind their parties, because they don't want to
waste their time.
It had been a very difficult mediation. It had--it had been
settled. And as one of--it was a civil mediation of a civil
rights case and it had followed a criminal prosecution for
these individuals that had burned these crosses, or burned a
cross in a person's yard.
And the Department came back--then the Acting Director--and
I honestly don't even remember that person's name--called me
and said, we're not going to go forward with this settlement.
And the way the Department works, civil rights has
authority to act without U.S. Attorneys in civil rights
matters, but U.S. Attorneys do not have authority to act
without Civil Rights. Our discussion got very heated and I
ended up hanging up the phone, telling them that I would not
participate in what they wanted to do.
Later, I got an e-mail and I drafted an e-mail back. They
wanted to remove some provisions from the settlement, some
punitive provisions against the defendant. And I--
Senator Whitehouse. Against the defendant who had burned
the cross?
Mr. Graves. Burned the cross. And he happened to be from a
rural part of the very county where I'd been the elected
prosecuting attorney. I knew this person. I knew that when he
got out that it was--there was a high likelihood that the same
sort of behavior would continue. And--
Senator Whitehouse. But they wanted to remove punitive
provisions that you had already negotiated--
Mr. Graves. Right.
Senator Whitehouse.--from the agreed civil remedies for
somebody who had burned a cross in somebody's yard.
Mr. Graves. Right. Because the criminal remedies--because
he'd been sentenced to prison, once he got out, that's over.
The only way to have sanctions controlling his behavior in the
future--
Senator Whitehouse. Yeah.
Mr. Graves.--was to have a civil settlement. And there was
a provision that he cannot drink alcohol, and I can't remember
what the other ones were. And someone at the Department didn't
think that was in accord with the theory of prosecution or the
theory of what civil--civil rights settlements should be. And I
was a lunch-pail prosecutor. I was just a guy out in Kansas
City who was trying to do my job. And--and because I had two
concerns about that.
One is, my reputation was on the line with the Federal
magistrate because we had committed to that. Two is, I wasn't
going to back up on this guy because I knew that, you know,
when he got in trouble again I would have to own that decision
and take responsibility for it, and I didn't think it was a
right decision.
So I sent a strongly worded e-mail. I no longer have that
e-mail because I'm not in the Department, but I went back
through my computer. And the language--sometimes, because the
computer system at the Department is sort of at the office, I
typed it up the night before. And the language of that e-mail I
have, and I also have submitted that and would be happy to have
that included in the record.
And the person that I was told was going to contact me to
mediate this after I--mediate it with the Department after I'd
thrown down the gauntlet, they told me that Brad Schlozman was
going to be the guy, the peacemaker in the matter.
So I had talked to him, maybe the next week, and as it
turned out I wouldn't back up, I wouldn't change my position.
My reputation in the legal community in Kansas City was more
important to me than my reputation in the halls and many
offices, you know, staff level at main Justice, and they--
they--they ended up doing what we wanted.
Senator Whitehouse. I'd stop you right there on that point.
Mr. Graves. OK.
Senator Whitehouse. To make the point to you that I think
that one of the reasons that we have locally appointed U.S.
Attorneys is so that they will make exactly that kind of call.
It's one of the concerns that I have about the, for want of a
better word, infiltration of the U.S. Attorney corps by people
who have limited contact with the home district--
Mr. Graves. Uh-huh.
Senator Whitehouse.--but are sent out as emissaries of the
operatives in main Justice.
In that context, how did you greet the arrival of Mr.
Schlozman as the next U.S. Attorney?
Mr. Graves. Well, I mean, I--I was--I was sort of
indifferent. I--I had made my plans. As you--I've left other
public offices before and the most important thing, I think, is
to sort of let the next person do whatever and just stay out of
their way.
Senator Whitehouse. Was he known in the Missouri legal
community at the time?
Mr. Graves. He was not known to the Missouri legal
community. I knew him because of this previous civil rights
case, and against that backdrop he was also involved in the
voting rights case, and so I knew that he had--he had mentioned
to me that he was a Kansas City guy and I knew that he had
contacts in the community, certainly at the high school level.
But as far as I knew, I mean, I--I'd never heard of him before
I'd talked to him on the phone.
Senator Whitehouse. And you presumably know your way around
the Missouri Bar and prosecutive world pretty well.
Mr. Graves. I've been--you know, it hasn't been that long,
but I've--I've been there for a while.
Senator Whitehouse. Yeah.
What was his role--what was your experience on him in the
cases in which you were directly engaged?
Mr. Graves. OK. The first one was a civil rights case and I
did not deal with him--or the first one was the cross burning
civil rights case. I did not really deal with him after that,
my assistant did. The Department, after, you know, some fairly
strongly worded things to me, eventually agreed with our
position and they entered into that--that settlement.
Then fast forward a few years. It came to my attention that
there was a letter that they wanted to send--I believe it was
the Secretary of State, the Attorney General, and some others--
on a voting rights lawsuit. And I read through it and thought
about it and I had some--I had some concerns about it.
If you've been a U.S. Attorney you understand that
sometimes components of main Justice want to do something and
it's not a good idea, but it's not really for you--they have
independent jurisdictional authority over you.
And I remember--what I remember--and again, this is several
years ago as I was dragging my feet on signing the letter. I
don't remember if a request was ever specifically asked that we
sign the letter, but I was voiding signing the letter. I
believe Mr. Schlozman signed that letter.
I thought at the time that this was a bad idea. I thought
there was sort of a main Justice rush on this and we--what I
would describe, is we started kind of slow-walking it in the
district.
I did not have any negative conversations with the
Assistant handling this for the local district because I didn't
think it was appropriate for me. I mean, you know, we were
going to do what we were going to do. I didn't think it was
appropriate for me to start poisoning the well because I knew
that they were going forward with this and I didn't think it
was a Rule 11 violation.
Again, it's about--it's just knowing where it's going to
end up and the responsibility for it, and I wasn't being asked,
you know, whether I thought they should proceed.
So I--how I would describe what I did, was I--we slow-
walked it. It was inevitable and I just sort of stepped aside
and absented myself from the situation. Wasn't involved in the
discussion of the case.
I got periodic e-mail updates from the AUSA who was acting
as local counsel, but I don't really even remember responding
to them and I was not part of--in the Department of Justice,
sort of the currency of the realm is the press release and I
was not part of the press release when they signed that--when
they filed that case.
So I don't--I don't see--first of all, I have no idea if
that has anything to do with me getting a phone call from Mike
Battle, and I want to be clear about that. But I don't see how
anyone could claim that no one noticed, with my prior
experience with Civil Rights, that I was not--I was not front
and center on that case.
Senator Whitehouse. That's a pretty bright red flag,
actually, if the U.S. Attorney won't sign the letter and
doesn't participate in the press releases. You said that's the
coin of the realm.
Mr. Graves. Yeah. Usually you're fighting over who's on the
press release and who's first, and who gets a quote, and--you
understand how that works.
Senator Whitehouse. Yeah.
In terms of the filing of these charges in the, literally,
days before an election at the time that you were the U.S.
Attorney, were you aware of the much-discussed policy that
we've been talking about here that suggests that election-
related charges should not be brought in the immediate run-up
to an election?
Mr. Graves. Yeah. I was--I had had some training. I had
that book. I'd had some training on it. But of course, all--all
the Department policies are--there's sort of a feel there. I
think election-related that would influence the election would
be the key.
For instance, I once filed a case fairly close to election
with the U.S. Attorney in Kansas where voters had been voting
on both sides of the line. It had been investigated from a
previous election.
We filed that, but there was no way that that would
influence--you know, I don't know whether those were Democrat
voters or Republican voters, and the public would have no way
of influencing that.
But something that clearly was an investigation about that
election and about something that would impact that election,
meaning that it was an identifiable group of one candidate or
the other, it would have been my understanding that you would
not--you would not do that.
Senator Whitehouse. In your judgment, if an organizing
group were actively registering voters the way ACORN does, in
my view, primarily for Democratic voters, and presumably they
had registered a considerable number of voters, if they were
being at all effective at what their intended task was, and
then the government, at the last minute, brought charges that
cast into question the legality of registrations that had been
brought by that organization, would you think that that might
have any kind of chilling effect on voters who had been
registered other than the immediate subjects of the charges?
Mr. Graves. Yeah. I'm somewhat hesitant to speculate on
that because I know there were good career prosecutors involved
in this in Missouri and I hate to--without--as someone who's
prosecuted cases I know that it's very contextual.
Senator Whitehouse. The testimony is that they didn't make
the call as to when the indictment--
Mr. Graves. Right.
Senator Whitehouse.--would be announced. The testimony
today was that that was made by the head of the Public
Integrity Section.
Mr. Graves. Right.
Senator Whitehouse. And so, as far as I'm concerned, if I
were the U.S. Attorney, my--the line assistance wouldn't really
have a horse in that race.
Mr. Graves. Right.
Senator Whitehouse. They would have done their job and it
would be my job to see to it that policy guidelines were met
and that I wasn't making announcements immediately before an
election.
Mr. Graves. My--when--I was out--I'd been out of the U.S.
Attorney's Office for a long period of time when that happened.
When I read about it in the paper, knowing--I have a--I still
have a copy of that.
Senator Whitehouse. Yeah.
Mr. Graves. I don't know if that violates a policy that I
still have a copy, but it surprised me.
Senator Whitehouse. Yeah.
Mr. Graves. It surprised me that they'd been filed that
close to an election.
Senator Whitehouse. After you left the U.S. Attorney's
Office you stated that, ``When I first interviewed with the
Department I was asked to give the panel one attribute that
describes me. I said `independent'. Apparently, that was the
wrong attitude.''
Could you explain why you now think that that was the wrong
attitude?
Mr. Graves. Well, that was--that was in response to--to so
much of what I've seen since I left there. That did happen.
There was an interview, and I don't remember who was there. I
can remember, David Margolis was there.
It was--you know, I thought of that question, sort of the
old question of, if you were a box of cereal, what kind of
cereal would you be, and why? They wanted that one question or
that one attribute, and that's the one I gave them. And I was
surprised at the reaction that I got, because it was sort of
like a lead balloon.
And I had come up as a State prosecutor and I had
colleagues that were Republicans and I had colleagues that were
Democrats, and that was sort of the--the--the ideal that we all
aspired to, was--I was elected as a Republican. I'm a--I'm a--
to this day, I mean, I'm a--I'm a committed Republican
conservative. When I--
Senator Whitehouse. But a lot of prosecutors are
prosecutors first and--
Mr. Graves. When you put the suit on, you really leave it
at the door. My First Assistant while I was at the State level
and while I was at the Federal level was a Democrat and I
didn't even know that till years after we started working
together. It's just not something that--you really try to set
that aside, because, as I said in my opening statement, I mean,
these are not Republican or Democrat decisions.
Senator Whitehouse. Would it be fair to describe you in
sort of the Bud Cummins category then?
Mr. Graves. I don't think anyone's in Bud Cummins'
category.
Senator Whitehouse. I know he's a special guy. But in terms
of being non-performance related and being told that they'd
like you seat vacated so they could put somebody else in and it
being the Department's call that this took place.
Mr. Graves. That was what was clearly communicated to me.
And, you know, like I say, that was--and it sounded like Mr.
Battle was sort of reading from a script, although it wasn't
that--but, you know, he made it clear that he was to tell me,
you know. By who, he wouldn't tell me--
Senator Whitehouse. Yeah.
Mr. Graves.--but that he was to tell me that there were no
performance issues. They wanted to give another guy a chance to
serve. We, as U.S. Attorneys, are not, you know, promised two
terms. That's not part of the deal. And I agree with--you know,
actually, I agree with all that. It is--we're not--you know,
public office is a privilege, it's not a right, and so I
accepted that.
Senator Whitehouse. When Kyle Sampson came before this
committee he testified as follows: ``In the end, eight total
U.S. Attorneys were selected for replacement: Bud Cummins, in
mid-2006, and the other seven in a group in early December of
2006.'' Based on everything you know about your situation, was
that a true statement or would you add yourself to that group?
Mr. Graves. You know, I have an active practice and I
don't--I actually have not seen all the hearings and followed--
I've caught some of them and I--I didn't see that, so I don't
know exactly what--what Kyle Sampson was referring to.
I mean, I clearly was a U.S. Attorney who was given a push
to leave the Department in early 2006. I don't know how he was
defining the categories, you know, to catch the numbers, but--
but I was given that call in early 2006.
Senator Whitehouse. OK.
Let me ask you one last question. I appreciate your time
with us this afternoon. This is something that has just
bothered me to no end, and I'd just like to get your two cents'
worth on it.
When Kyle Sampson came before this committee, one of the--
one of the things that he said in his testimony was that it
would be improper for any U.S. Attorney, any prosecutor,
himself, to attempt to influence or interfere with any
particular case for partisan or political improper purposes.
Mr. Graves. Uh-huh.
Senator Whitehouse. Which obviously I agree with. My point
isn't that the statement is wrong, my point is that the
statement is wildly under-inclusive of what would be improper.
Mr. Graves. Uh-huh.
Senator Whitehouse. Not long after that, the U.S. Attorney
himself came and testified before us, and in almost verbatim
language, which is interesting because Kyle had testified to us
that they didn't contact anybody when they prepared their
testimony.
He used almost exactly the same language, again, that it
would be ``improper to attempt to influence or interfere with a
particular case for partisan or improper purposes''. And then
just recently, Brian Rohrcasse used almost that exact same
phrase again in a press release that came out.
And I'm trying to figure out where that comes from. It
looks an awful lot to me like the elements of criminal
obstruction of justice, but criminal obstruction of justice, as
you'll recall, uses slightly differently terminology. You just
put the three pieces side by side and they're practically a
match.
Mr. Graves. Uh-huh.
Senator Whitehouse. I don't know if it comes out of some
OPR guideline. I've asked the Office of Inspector General to
look into it. Is that a phrase that rings a bell with you in
any respect?
Mr. Graves. No, it doesn't.
Senator Whitehouse. It's funny that it comes out all three
times, almost verbatim, from these very high-level sources.
In terms of your view that being a U.S. Attorney carries a
nearly sacred responsibility to do the right thing, do you
think that that is the right place to draw the line on what is
improper and what is not in terms of allowing political
influence to affect your judgment as a prosecutor?
Mr. Graves. You know, I think that--that you can't--one of
the things we spoke about earlier was, the U.S. Attorney should
be from a local--you know, should be from the local community,
for a lot of reasons. That's because he--he or she will bring
their sort of understanding of the community, common sense, and
will be able to make those decisions that we rely on
prosecutors to make that could affect life, liberty, freedom,
and property.
And so I think that sort of life experiences are something
that you have to bring to the office and that you should apply
to the decisions you make, but partisan--Republican,
Democratic, Green, whatever--is something that should not be
part of your decisions in hiring, it should not be part of--
Senator Whitehouse. Irrespective of whether it relates to a
particular case?
Mr. Graves. Irrespective of whether it relates to a
particular case. I always said I want to try--I want to hire
prosecutors that would rather try tough cases than sleep, and I
don't care if they're a Democrat or if they're a Republican. If
they don't want to put people in jail that deserve to be put in
jail, I don't want to hire them.
So there's a philosophical sort of test there, but if
they're a Democrat, I mean, some of the--some of the people in
my office that I have the highest regard for that I promoted,
that, you know, have done a tremendous job, it's because they
were--they were pro players that could throw a football, you
know, into the end zone in important games, and that's what I
was looking for.
Senator Whitehouse. Well, I thank you, Mr. Graves.
I see that my Chairman has returned and arrived and I am,
embarrassingly, now sitting in his seat in full view of an
entire group of people, and cameras to boot. So, I'll get out
of the way.
I do want to say that I appreciate your remarks at the
beginning. Mr. Chairman, he, Mr. Graves, indicated that he
thought it was important the committee conduct itself in such a
way that the Department's reputation could be restored.
And I just want to say from your testimony today, I think
that if people like you and Jim Comey were in the leadership of
this Department and understood the world the way you do, we
wouldn't be having this problem.
Chairman Leahy. Thank you. No, no. Just stay right there.
I'm not going to add to the questions. I know which questions
you asked. I spoke to Mr. Graves earlier and told him how much
I appreciated him coming here.
And I appreciate what you said about the integrity of the
people who work for the Department of Justice. I have always
had enormous respect for them. I've hired people, a number of
people in my office, who were with the Department of Justice. I
always consider that a high mark. Most of them, I didn't have
the foggiest idea what their politics were, whether they were
Republicans or Democrats. I, frankly, didn't care. I just
wanted them to do a very good job here.
When I was a prosecutor I never knew the politics of
anybody I hired. I felt as you just said: if somebody broke a
law, go get them and prosecute them. That's the way I felt.
I also feel that prosecutors have a solemn duty to use
discretion where it actually enhances justice. But you don't
use discretion because of political pressure, you do it because
it actually makes sense.
When I was in law school at Georgetown I was invited, with
a handful of those of us who were going to meet with the then-
Attorney General who was telling us why we should go to the
Department of Justice, and he made it very clear that there
were certain things.
He had great respect for the President, though the
President was right in certain areas. But he'd made it very
clear to the President that he, the President, could not
interfere with anybody in the Criminal Division, including one
who was prosecuting a strong, strong supporter of the President
who helped get him elected in the first place, that he would
not--and the same with civil rights or anything else, and
pointed out that he didn't know the politics of any of us. We
probably did either at that age.
But based on our grades and whatnot, wanted us there and
was assuring us that there would be no politics played in that
division. I think it was Attorney General Robert Kennedy. He
was making it very clear. There was probably nobody closer to
his brother, the President, than he, but as history showed they
prosecuted people who had helped get President Kennedy elected
in the first place.
Both Senator Whitehouse and I have had the privilege of
being prosecutors. He was U.S. Attorney, as you probably know.
And I think what's been most frustrating in this committee and
why there's been so much criticism from both Republicans and
Democrats has come especially from those who served as
prosecutors, we understand as you do what the rules are. You
don't play politics. Justice is really--it's almost a cliche,
but justice is blind. And I appreciate you coming here.
I appreciate, Senator Whitehouse, you taking the time to
fill in. Unfortunately, I was in two different things here. But
we'll continue this. Thank you very, very much.
Mr. Graves. Thank you.
Chairman Leahy. We stand in recess.
Senator Whitehouse. And we'll keep the record open a week.
[Whereupon, at 5:19 p.m. the hearing was adjourned.]
[Questions and answers and submissions for the record
follow.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
PRESERVING PROSECUTORIAL INDEPENDENCE: IS THE DEPARTMENT OF JUSTICE
POLITICIZING THE HIRING AND FIRING OF U.S. ATTORNEYS?--PART VI
----------
WEDNESDAY, JULY 11, 2007
U.S. Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, Pursuant to notice, at 10:05 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Kohl, Feinstein, Feingold,
Schumer, Durbin, Cardin, Whitehouse, Specter, and Grassley.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. I am probably the last person who would
want to interfere with the work of those people who cover the
history of the Hill and the Congress, especially the
photographers, but I would also hope that you would be able to
do this in such a way that it is respectful of Senators who are
going to have to be able to ask questions.
Today the Committee welcomes Sara Taylor. Until recently,
she was the White House Political Director. She is accompanied
by her attorney, Neil Eggleston. We have made an exception here
so that she can have him at the witness table with her to
provide her with his advice and counsel.
In April, Senator Specter and I wrote to Ms. Taylor asking
for her cooperation with the Committee's investigation. We did
not hear back from her. Since then, she has left the White
House. We have scheduled this hearing to learn more about the
role White House political operatives played in the
unprecedented firings of a number of U.S. Attorneys who had
been appointed by the President.
I had a chance to meet with Ms. Taylor and her attorney
just before this hearing. I thank her for appearing. I share
with her my hope that she will cooperate with us by testifying
to the best of her knowledge and information. Of course, that
choice is hers.
I pointed out to Ms. Taylor that I believe very strongly
that law enforcement should be above politics and that
effective law enforcement in which the American people can have
confidence requires its independence from partisan political
activities.
Nobody, from the cop on the beat to the prosecutor, should
have to wonder whether they have to use a political litmus test
before they prosecute somebody for wrongdoing. But that is what
appears to have been compromise in this purge and by the signal
it sent to prosecutors around the country.
There is clear evidence that Ms. Taylor, a top aide to Karl
Rove, was among the staffers who played a key role in these
firings and in the administration's response to cover up the
reasons behind them when questions first arose. But the White
House continues to cover up the facts and the reasons for the
firings.
Now, Ms. Taylor's lawyer informed us last week that she
would like to cooperate with our investigation, and I hope she
will. The White House lawyers have resorted to an unprecedented
blanket assertion of executive privilege.
I say ``unprecedented'' because I have been here over six
administrations, Republican and Democratic, and I have never
heard of such a blanket assertion of executive privilege. I did
not even hear it during President Nixon's term.
They are seeking to interfere with the obligations of Ms.
Taylor to testify, and the White House is seeking to prevent
other witnesses and the Republican National Committee from
providing information requested by this Committee and by the
House Judiciary Committee.
Of course, this belated blanket claim of executive
privilege belies the initial reaction of the White House and of
the President himself to minimize his involvement and the
involvement of Karl Rove in these matters, and this follows, I
believe, the pattern we saw that culminated in the conviction
of Mr. Libby for obstruction of justice, perjury, and lying in
another matter.
It makes us ask the question: What is the White House
trying to hide? And why would it interfere in Ms. Taylor's
testifying if, as her lawyer says, she wishes to cooperate?
From the outset of this scandal, the President has spoken
about the firing of U.S. Attorneys as if it were a matter
handled and decided by the Attorney General and something Mr.
Gonzales would have to explain to Congress and the American
people. The President was hands off and at arm's length.
Are we now to understand when the White House claims
executive privilege that these were decisions made by the
President? That is a direct contradiction of the President's
earlier statements that he was not responsible for this
scandal, for the firing of such well-regarded and well-
performing U.S. Attorneys, apparently in some instances for
partisan political purposes and to affect elections.
When we had the Attorney General testify under oath, he did
not know, according to his testimony, who added U.S. Attorneys
to a list of those to be fired or the reasons they were added.
Indeed, the bottom line of the sworn testimony from the
Attorney General, the Deputy Attorney General, the Attorney
General's former Chief of Staff, the White House Liaison, and
other senior Justice Department officials was that they were
not responsible.
Senator Specter said recently that two of the questions at
hand are: Who ordered the firings? And why? We need answers to
these questions. Who did make these decisions? What it, in
fact, the political operatives at the White House? Was it an
attempt to affect elections? What role did Ms. Taylor and
others in Karl Rove's White House Political Office play? And if
the decisions were not made by anybody at the Justice
Department, who made them?
For months, I have been giving the White House every
opportunity to work with us voluntarily to provide the
information we sought. This week, the White House ignored an
opportunity to meet its burden of explaining its blanket
privilege claim.
Specifically, what is it the White House is so intent on
hiding that they cannot even identify the documents or the
dates or the authors and recipients that they claim are
privileged?
Would we see the early and consistent involvement of Ms.
Taylor and other high-ranking White House political operatives
in what should be independent and neutral law enforcement
decisions?
Now, Ms. Taylor's honest testimony could help us begin to
answer these questions. It is apparent that this White House is
contemptuous of the Congress and feels that it does not have to
explain itself to anyone--not to the people's representatives
in Congress, nor to the American people. I would urge Ms.
Taylor not to follow that contemptuous position and not follow
the White House down this path.
This is a serious matter. It has serious consequences for
the administration of justice. This is about the improper
political influence of our justice system. It is about the
White House manipulating the Justice Department into its own
political arm. It is about political operatives pressuring
prosecutors to bring partisan cases and seeking retribution
against those who refuse to bend to their political will, such
as the example of New Mexico U.S. Attorney David Iglesias, who
was fired a few weeks after Karl Rove complained to the
Attorney General about the lack of purported ``voter fraud''
enforcement cases in Mr. Iglesias' jurisdiction. It is about
high-ranking officials misleading Congress and the American
people about the political manipulation of justice.
Along the way, the subversion of the justice system has
included lying, misleading, and stonewalling the Congress in
our attempts to find out what happened. This administration has
instituted an abusive policy of secrecy aimed at protecting
themselves from embarrassment and accountability. Apparently,
the President and the Vice President feel they, and their
staff, are above the law. Well, in America, no one--no one--is
above the law.
So I hope Ms. Taylor chooses to reject the White House
insistence that she abet their stonewalling and instead work
with us so that we can get to the bottom of what has gone on
and gone wrong and correct it.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Senator Specter?
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Senator Specter. Thank you, Mr. Chairman.
I am pleased to see Ms. Sara Taylor here today on some very
important issues facing the Department of Justice and the
Nation, and from a preliminary discussion which I have had with
her and her attorney, I believe that she can provide some very
important testimony with respect to the issues in the State of
Arkansas.
And I think it is important for this Committee to move
ahead as promptly as we can to find out as much as we can, and
that is why I have talked to my colleagues about taking up the
President's offer to make White House personnel available for
limited questioning, even though I do not find it satisfactory
on an objective basis.
I believe that a number of the President's conditions are
acceptable. For example, I think we can do without the oath,
although I would prefer to see sworn testimony because
witnesses are subject to potential prosecution for false
official statements.
I think we could do with a closed session, although I would
prefer to see it open, so long as there is a transcript. When
the President declines to permit a transcript, I think he is
wrong. And I think that is for the protection of the witnesses,
as well as for the importance to the Committee and the public
to know precisely what was said, because people walk out of a
closed-door meeting without a transcript and in perfectly good
faith have different interpretations as to what was said.
But I would be prepared at this stage of the proceeding to
even take the proceeding without a transcript. I think if
Chairman Leahy and Chairman Conyers and others and I are going
to be questioning witnesses, we can find out a good deal. And I
think it is really important to get to the bottom of these
issues.
There are very serious charges about asking U.S. Attorneys
to resign for improper reasons. No one questions that the
President has the authority to terminate all the U.S. Attorneys
for no reason, as President Clinton did in January 1993, the
start of his term. But, similarly, I think it is agreed that
the President cannot terminate a U.S. Attorney or ask for a
resignation for an improper reason.
But the Department of Justice is second only to the
Department of Defense on the important functions of protecting
the American people: the investigation of terrorism, the
investigation of organized and violent crime, drug dealing, and
many, many important subjects. And I believe that the continued
tenure of Attorney General Gonzales, as I have said publicly
and privately, is not in the national interest. But whether he
stays is a matter for his decision and for the President's
decision.
I think that separation of powers, I am not going to tell
the President what to do, and I do not expect him to tell me
what to do as a Senator. But I think it may well be, when we
finish this investigation, that the reasons for his departure
may be overwhelming. They are being built upon day by day.
Yesterday's headlines contained the additional misfeasance,
perhaps even malfeasance, on the part of the Attorney General
in not disclosing to Senate Committees the fact that the FBI
had abused its authority and its power when he said that there
were no instances when we were considering the reauthorization
of the PATRIOT Act of abusive practices by Federal law
enforcement officials.
And as these things mount and accumulate, I think we may
well get to the point where even the Attorney General will see
that his continued service is not in the national interest or
the President will see that the Attorney General's continued
service is not in the national interest.
It is my hope that we will not proceed on the criminal
contempt citation as to Ms. Taylor because no matter how solid
her reasons may be for not testifying, it will not be publicly
understood. I do not think that a criminal contempt citation is
appropriate here for anyone.
There is a difference of opinion as to the claim of
executive privilege. There are arguments on both sides. I
candidly think that we have the better of the argument on
congressional oversight.
But if it goes to court, it will take 2 years, and that is
why I have urged my colleagues to take as much as we can get
now and come back later, although I must emphasize that I find
it totally unacceptable for the White House to impose a
condition that we would not be able to followup.
I do not believe that we can voluntarily give up our
constitutional authority on oversight as the facts develop, and
I think the White House would yield on that issue. If they
would not yield, I would not accept that as a condition for
even the informal basis for proceeding.
But I think this hearing will give Ms. Taylor an
opportunity to demonstrate that she did not leave because of
the pendency of the subpoenas or the investigation, but those
were plans which she had made a long time ago. I think we have
to be very sensitive to reputations which are on the line.
Just a word or two from this Committee can place a cloud
over an innocent individual which will last a lifetime. She
will have an opportunity to say for the record that she had
plans to leave a long time ago, and it was genuinely only
coincidental.
Sometimes there are feigned coincidence, but I think she
will outline the facts she had planned to leave, and the
statement which she has provided demonstrates good faith to try
to comply with the interests of oversight and still respect her
obligation to the President. Even though she is no longer
there, the executive privilege consideration would apply.
I look forward to your testimony, Ms. Taylor.
Thank you, Mr. Chairman. One addendum. I count one, two,
three, four, five, six, seven Democrats here today. If anybody
is watching C-SPAN 3 or if the staffs would notify Republican
Senators, I could use some company.
Chairman Leahy. For one thing, I do not think Senator
Specter needs any company. He is a force unto himself. But we
did set places for every single Republican. They were invited.
Senator Specter. Mr. Chairman, you may rest assured I will
not leave.
Chairman Leahy. Well, we set places for every Republican
Senator. They could be here. But I know Senator Grassley wanted
to speak for just a couple minutes, and I will allow him to do
that, as did Senator Specter.
And those would be the only--I mean Senator Schumer, and
those would be the only opening statements. But I would note
just one thing on the offer, so-called offer from the White
House. I have listened carefully to what Senator Specter has
said, and I know no one who can do a better job of cross-
examination than Senator Specter.
But the offer, anytime we have asked the White House are
they open to any kind of a counter-offer, they have said to us,
``Take it or leave it.'' It would be behind closed doors, on
their agenda, and it would have to be with the assurance there
would be no followup, no matter what is said in there, no
subpoenas, no followup.
And, of course, that is the part that we cannot accept. I
have no problem with talking to people prior to a hearing and
getting some idea of what they are going to say. But the idea
there could be no followup, of course, is unacceptable.
Senator Schumer, you wanted a couple minutes?
STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE
STATE OF NEW YORK
Senator Schumer. Thank you, Mr. Chairman. First, let me
thank you for your superb leadership in this Committee and on
this endeavor.
And, Ms. Taylor, I want to thank you for at least coming
before the Committee in response to our subpoena. I know it is
not easy for you. I know you want to cooperate. Our quarrel is
not with you. It is with those in the White House who wish to
stymie our search for the truth.
Call it what you will, but the White House has issued a gag
order, plain and simple. The President can dress it up all he
wants in the lofty language of ``executive privilege,'' but it
is a gag order. And it is ill-considered and over-broad and
unpersuasive.
We are repeatedly told that no one did anything wrong, but
we have to take it on faith. And, sadly, we have been
repeatedly reminded on issues big and small that our faith in
the administration is misplaced, because there is an effort, it
seems almost at all costs, to avoid telling the truth, the
whole truth, and nothing but the truth.
In between this building and the White House is a
courthouse where we can battle this out. But I hope the
President wakes up to reality and reason. I hope he reconsiders
in the course of this debate. I hope he understands that by
stonewalling he does not serve his administration, he does not
serve you, he does not serve the country as a whole. So I hope
he does the right thing and allows you to do what you claim you
want to do: tell the complete truth to this Committee and the
American people.
Having said that, as both Senator Leahy and Senator Specter
have said, there are questions that we may be able to ask that
do not fall in the realm of privilege, and I appreciate the
opportunity to do it.
I believe the privilege claim that the President has made
is weak. It is weak because we are asking questions about a
specific series of incidents--it is not a general broad range--
about wrongdoing. It is weak because there is no other place to
get the answers. And it is weak because some of the documents
already that relate to this have been issued when we questioned
the Justice Department.
In conclusion, again, I want to thank you, Mr. Chairman,
for your leadership on this and for the opportunity to speak
here this morning.
Chairman Leahy. As I noted at the outset, I would also
yield to Senator Grassley, who wanted to make a very short
statement. Senator Grassley?
STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE
STATE OF IOWA
Senator Grassley. Thank you very much.
First of all, Mr. Chairman, to you and the Committee, I
apologize that I was making some opening remarks at the Finance
Committee, and I will probably have to go back there because we
have a very important hearing on carried interest.
I would like to say a few words, first of all, to thank Ms.
Taylor for appearing here today. I certainly do not envy her
position. She could have chosen not to come before us. That is
because she finds herself in the middle of a constitutional
struggle between two branches of Government.
The executive branch has asserted executive privilege over
communications and deliberations that Ms. Taylor had at the
White House and, of course, the President does have the right
to be able to get candid information from his advisors.
On the other hand, Congress needs to be able to conduct
legitimate oversight of the executive branch. Ms. Taylor's
presence here today shows courage and a willingness to
cooperate with the Senate Judiciary Committee.
Let me share some personal information about Sara Taylor
with my colleagues. She hails from my State of Iowa. She is
from Dubuque, Iowa. I first remember meeting Sara at Lake
Eleanor in Dubuque in September of 1980. It was her birthday,
and she had just turned 6 years old.
It is my understanding that she was expecting to go to a
pizza party for her birthday, but instead her parents took her
to a picnic I was hosting during my first run for the Senate. I
am not sure that was where she wanted to be on her birthday,
but I certainly was pleased to meet her.
Sara has come a long way from her days growing up in Iowa.
Her love of public service and hard work got her all the way to
the White House, where she worked for President Bush for 8
years.
And after working for someone as hard as she did for that
long and being loyal to him, I understand that it is not easy
to buck the President and disobey his request not to comply
with the Judiciary Committee's subpoena. I think she has chosen
the right course of action by being here, and I thank you for
doing that, Sara. And thank you for your loyalty to me over the
years as well.
Chairman Leahy. Thank you.
Ms. Taylor, please stand and raise your right hand. Do you
solemnly swear that the testimony you will give in this matter
will be the truth, the whole truth, and nothing but the truth,
so help you God?
Ms. Taylor. I do.
Chairman Leahy. Ms. Taylor served until recently as the
Deputy Assistant to the President and Director of Political
Affairs at the White House. During the 2004 campaign, she
served as a senior strategist, helping to manage the campaign's
message development, the paid media strategy opinion research,
and strategic travel planning.
She had previously served as an Associate Director in the
Midwestern States and Political Affairs Office. She first
joined the President's team in April 1999 when she helped set
up his Iowa caucus effort and managed the 2000 general election
campaign in Michigan. She received a B.S. in finance from Drake
University.
As you know, Ms. Taylor, the rules of our Committee call
for you to have submitted your written statement by 10 a.m.
yesterday. You have not done that, but we eventually got a
statement, and that will be included in the record. If you wish
to make a short summary--normally we would not allow that, but
in this case I will make an exception. I do not hear any
objection from any member of the Committee, so please go ahead.
STATEMENT OF SARA M. TAYLOR, FORMER DEPUTY ASSISTANT TO THE
PRESIDENT AND DIRECTOR OF POLITICAL AFFAIRS, THE WHITE HOUSE,
WASHINGTON, D.C.
Ms. Taylor. Mr. Chairman, Senator Specter, members of the
Senate Judiciary Committee--
Chairman Leahy. Is your microphone on? There is a little
button in the front.
Ms. Taylor. Sorry about that. Mr. Chairman, Senator
Specter, and members of the Senate Judiciary Committee, my name
is Sara Taylor. Until about 7 weeks ago, I served as a Deputy
Assistant to the President and the Director of the Office of
Political Affairs at the White House.
Over the last 8 years I've worked in different capacities
for President Bush. I know the President to be a good and
decent man. I am privileged to have had the opportunity to
serve him, and I admire his unflinching devotion always to do
what he believes is right for the country.
The professional opportunities President Bush gave me have
and will continue to have a profound impact on my life. I am
grateful for the confidence he has shown in me.
I am here today to testify, pursuant to subpoena, before
this Committee as a willing and cooperative private citizen. I
must recognize, however, that the areas you would like to
question me about today arise out of my service to the
President in the White House.
I have received a letter from the Counsel to the President
informing me that the President has directed me not to testify
``concerning White House consideration, deliberations,
communications, whether internal or external, relating to the
possible dismissal or appointment of United States Attorneys,
including consideration of possible responses to congressional
and media inquiries on the United States Attorneys matters.''
I have attached a copy of Mr. Fielding's letter to me to
this statement, as well as the letter that my counsel, Mr.
Eggleston, wrote to the Chairman and the Ranking Member.
Chairman Leahy. That will be made part of the record.
Ms. Taylor. OK. Thank you.
The President has made the determination that the
disclosure of this information would interfere with the
operation of the executive branch. I intend to follow the
President's instruction. I do not have the ability
independently to assess or question the President's
determination.
The current dispute between the executive and congressional
branches of our Government is much bigger than me or my
testimony here today. In light of the President's direction, I
will answer faithfully those questions that are appropriate for
a private citizen to answer while also doing my best to respect
the President's directive that his staff's communications be
privileged.
To the extent that I am not able to answer questions
because of the President's directions, I commit to abide by a
judicial determination that may flow from a subpoena
enforcement action against the White House.
While I may be unable to answer certain questions today, I
will answer those questions if the courts rule that this
Committee's need for the information outweighs the President's
assertion of executive privilege.
I look forward to answering your questions not covered by
the President's assertion of executive privilege. I understand
that during this hearing we may not agree on whether answers to
particular questions fall within the prohibitions of Mr.
Fielding's letter.
This may be frustrating to both you and me. I would ask
that this Committee not infer than an invocation of Mr.
Fielding's letter signals knowledge on my part. Within the
constraints of Mr. Fielding's letter, I will do my best to
answer your questions.
Thank you.
[The prepared statement of Ms. Taylor appears as a
submission for the record.]
Chairman Leahy. Ms. Taylor, why did you resign as White
House Political Director?
Ms. Taylor. I am 32 years old, Senator. I have worked for
the President for 8 years. At my age, almost 33, I have
additional career and additional personal goals in my life, and
I thought that this was the right time for me to head off and
look at other career opportunities.
Chairman Leahy. When did you first consider leaving the
White House?
Ms. Taylor. I considered it last year. I thought a lot
about it. I don't know when I first--probably around, you know,
last summer I wondered if I would stay until the end, if I
would--you know, and I informed Mr. Rove of my decision to
leave in December.
Chairman Leahy. Were the investigations into the
replacement of so many U.S. Attorneys at all a factor in your
consideration?
Ms. Taylor. Not whatsoever.
Chairman Leahy. And you did not tell anyone that that may
have been a factor?
Ms. Taylor. I'm sorry. I didn't understand.
Chairman Leahy. And you have not told anyone at any time
that that might have been a factor in your consideration?
Ms. Taylor. I don't believe I have ever told anyone that.
Chairman Leahy. Thank you. Has anybody at the White House
or otherwise made any commitment to you that you would be
protected from legal consequences if you declined to testify
today?
Ms. Taylor. I have never heard from anyone at the White
House that they would protect me if I chose to follow this
course?
Chairman Leahy. Anyone outside the White House?
Ms. Taylor. I have not heard from anyone outside the White
House?
Chairman Leahy. Thank you.
Now, if the staff could give you a copy of a document
numbered OAG1814.
Ms. Taylor. OK, thanks.
Chairman Leahy. It is a series of e-mails. This is a
February 16, 2007, e-mail exchange between you and Kyle
Sampson. Is that correct?
Ms. Taylor. It is.
Chairman Leahy. Are you familiar with this document?
Ms. Taylor. I have seen this document.
Chairman Leahy. The last e-mail in this string is an e-mail
from Mr. Sampson to an e-mail address [email protected].
Ms. Taylor. Yes.
Chairman Leahy. Is that your Republican National Committee
e-mail address?
Ms. Taylor. That is a domain controlled by the Republican
National Committee that I used when I had political matters.
Chairman Leahy. So that was your Republican National
Committee e-mail address?
Ms. Taylor. Yes, that is, in fact, my address--was my
address.
Chairman Leahy. How frequently did you use this e-mail
address?
Ms. Taylor. I used it a fair amount. I mean, people had the
address and e-mailed me, and I got a lot of news clips on it,
and I read those. So I think it's fair to say I used it--I used
it regularly.
Chairman Leahy. Any idea how often?
Ms. Taylor. I don't. I know from your press accounts that
there are 66,000 e-mails, and I've heard that and I know that
from the press. So I believe that there are 66,000 e-mails.
Chairman Leahy. That would be using it on occasion?
Ms. Taylor. Well, it is a lot of e-mail, I believe, and I
don't know with certainty that the e-mail that I have goes back
to either 2001 or 2002.
Chairman Leahy. Now, why did you send these e-mails
regarding the Department's handling of the U.S. Attorney
firings from your Republican National Committee e-mail account?
Ms. Taylor. Because I can tell you as an end user of the
system that was set up early in the administration to make sure
that the President's appointees who on occasion had to address
political matters never violated the Hatch Act. And the reason
for the e-mail account was so that I never put myself in a
situation where I was violating the Hatch Act.
We particularly didn't want to spend taxpayer dollars on
political matters. And so as a result of that system, I had,
you know, two computers, two BlackBerrys, and as somebody who
just generally tried to be efficient with her time, sometimes
just used the wrong computer.
Chairman Leahy. Well, if you were to use that to--you or
anyone would use that to involve yourself in hirings that were
violative of the Hatch Act, that would not be a non-violation
simply because it was done on an RNC computer rather than the
White House. Is that correct?
Ms. Taylor. I'm not--
Chairman Leahy. If you were to do something on there that
violated the Hatch Act, political manipulations of hirings and
firings that were precluded by the Hatch Act--I am asking you
as a hypothetical--that would still be a violation whether you
did it on a White House account or an RNC account, would it
not?
Ms. Taylor. Well, I assume a violation of the law is a
violation of the law. I think that, again, the purpose of the
e-mail account was to make sure that if, you know, the
President was doing Republican fundraising, as he has done in
the past, that we were doing it on political equipment, not
official equipment.
Chairman Leahy. But the law is the law.
Ms. Taylor. I mean, I am not--
Chairman Leahy. I am just trying to make sure--
Ms. Taylor. I am not an expert on the Hatch Act. I just--
Chairman Leahy. I am trying to make sure I understand your
answer. You said the law is the law. Is that correct?
Ms. Taylor. Well, I understand that if you were to break a
law, you would obviously break the law. But, again, I'm not--
I'm having trouble following where you're headed here, what
you're trying to--
Chairman Leahy. According to a report by the House
Government Reform Committee--and this goes to the report you
have referred to--the RNC has recovered over 66,000 e-mails, of
which you are a part.
Ms. Taylor. Yeah.
Chairman Leahy. Have you reviewed these e-mails to
determine whether they are responsive to our subpoena
compelling you to produce all the documents related to our
investigation?
Ms. Taylor. My attorney has looked through my e-mails.
That's correct.
Chairman Leahy. What did you do with these e-mails?
Ms. Taylor. My attorney sent those e-mails to the White
House for their determination as to whether those e-mails fell
within executive privilege.
Chairman Leahy. So you have not determined whether they
were responsive to our subpoena?
Ms. Taylor. We have--I mean, my understanding is that my
attorney went through my materials and submitted them--
Chairman Leahy. Not my question. Have you determined
whether they were responsive to our subpoena?
Ms. Taylor. I guess the answer to your question would be
yes. We went through, looked at your subpoena, and gather any
e-mail that we may have had or--may have had in our possession,
and if we had e-mail, determined to turn it over to the White
House so they could make a determination as to whether that e-
mail--
Chairman Leahy. So you did not make that determination.
Ms. Taylor. I asked my attorney to make that determination.
Chairman Leahy. And did you determine that any of them were
responsive--it is a simple yes or no question. Did you
determine whether any of those e-mails would have been
responsive to our subpoena?
Ms. Taylor. We sent e-mail--yes. We sent it to the White
House, correct.
Chairman Leahy. I almost feel like I am doing a practice
run for the Attorney General testifying here, but let me ask
you again. Did you determine whether any of those 66,000 e-
mails were responsive to our subpoena?
Ms. Taylor. I believe that, as I said, my attorney went
through it and determined that there were e-mail and sent those
e-mails--so I guess the answer to your question is yes--to the
White House for determination if--
Chairman Leahy. But not to us. Not to us in answer to the
subpoena.
Ms. Taylor. My attorney sent them to--Mr. Eggleston sent
them to the White House for the determination if they fell
within the guidelines of executive privilege.
Chairman Leahy. Again, not my question, but we will get
back to it in the second round. Since the 2004 election, did
you speak with President Bush about replacing U.S. Attorneys?
Ms. Taylor. Senator Leahy, as you know, I have a letter
from--
Chairman Leahy. That is not my question. I am not asking
you what was said or anything else. Did you speak with the
President replacing about U.S. Attorneys? Not what the content
of the discussion was, but did you speak with him, yes or no,
about replacing U.S. Attorneys?
Ms. Taylor. Senator, I have a very clear letter from Mr.
Fielding. That letter says and has asked me to follow the
President's assertion of executive privilege, and as I read
that, I determine my acknowledging whether a conversation
occurred or did not occur would, in fact, be part of the
deliberations.
Chairman Leahy. Did you attend any meeting with the
President since the 2004 election in which the removal and
replacement of U.S. Attorneys were discussed?
Ms. Taylor. Again, I have a letter that has asked me to
follow the President's assertion of executive privilege.
Chairman Leahy. So you are not going to answer my question.
Are you aware of any Presidential decision documents since the
2004 election in which President Bush decided to proceed with a
replacement plan for U.S. Attorneys?
Ms. Taylor. I'm sorry. Could you repeat the question?
Chairman Leahy. Are you aware of any Presidential decision
documents since the 2004 election in which President Bush
decided to proceed with a replacement plan for U.S. Attorneys?
Ms. Taylor. Again, I'm not--I've been asked not to comment
on the internal workings and deliberations to--of the White
House. And I would like to call the Committee to my opening
statement which said--
Chairman Leahy. I am just asking if you would answer that
question. Your answer is that you will not answer any of those
three questions. Is that correct?
Ms. Taylor. Yes.
Chairman Leahy. Thank you.
Senator Specter?
Senator Specter. Thank you, Mr. Chairman.
Senator Leahy and I have a longstanding record for
bipartisanship and agreeing on many, many if not most matters.
But I think it relevant for me to say at this time that I think
your declining to answer the last series of questions by the
Chairman was correct under the direction from White House
Counsel.
Whether White House Counsel is correct on the assertion of
executive privilege is a matter which will be decided by the
courts. And as I said earlier, I think congressional oversight
has the better of the argument. But it is not for us to decide.
It is a judicial matter if it is going to be framed that way.
But I do believe when you are asked whether you had a
conversation with the President, that even though it does not
go to the issue of content of the conversation, that it comes
under the interdiction of White House Counsel, which I agree
that you are compelled to follow at this stage having been an
employee.
But it is my hope that your refusal to answer the questions
as articulated by the Chairman will not be the basis for a
contempt citation, but I thought it important to have a
contemporaneous statement by another lawyer, just another
lawyer, as to my interpretation of the scope of the prohibition
which you are laboring under.
Now let's come to some of the substance which I think you
may be in a position to shed some light on. You served as
Political Director at the White House?
Ms. Taylor. I did.
Senator Specter. There has been a question raised about the
resignation of the U.S. Attorney in Arkansas, Bud Cummins, who
was then replaced on an acting basis by Mr. Tim Griffin. And
Mr. Tim Griffin was known to you from having served as the
Deputy Political Director? Would you--you are nodding.
Ms. Taylor. Yes, he was known to me. He was the Deputy
Political Director, and I had known him for quite a bit longer
than that.
Senator Specter. Now, Mr. Griffin had extensive experience
as a prosecuting attorney, correct?
Ms. Taylor. My knowledge is that he had been a prosecutor,
a Federal prosecutor for 3 years in different jobs, I think two
different jobs, if my memory serves me correct. I also know
that Mr. Griffin was a 10-year JAG officer in the United States
Army where he was also an Army prosecutor.
Senator Specter. And he had served as an Assistant to the
Special Prosecutor is the Cisneros--
Ms. Taylor. I believe that's--
Senator Specter.--Independent Counsel investigation?
Ms. Taylor. I believe that's correct.
Senator Specter. So he had very substantial experience as a
professional in the prosecution field.
Ms. Taylor. I believe he had significant experience.
Senator Specter. Now, with respect to the departure of Mr.
Bud Cummins, who had been the United States Attorney in
Arkansas, to your knowledge, what were the circumstances of his
interest in staying on or leaving?
Ms. Taylor. You know, I had heard a while ago that he had
planned to leave. I had read a press account that he--
Senator Specter. OK. ``A while ago'' is when?
Ms. Taylor. It may have--I don't know the specific time
range, Senator. I had heard that he had, you know, been
considering this, and maybe even as early as 2004 had indicated
that he may be thinking about leaving.
Senator Specter. But, in any event, substantially before
2006?
Ms. Taylor. I believe that's the case.
Senator Specter. The question has been raised as to whether
Mr. Cummins was forced out in order to make room for Mr.
Griffin. Do you have any personal knowledge as to the answer to
that question?
Ms. Taylor. Let me try to, again, just answer this while
also respecting the President's assertion of executive
privilege. Obviously, we're sitting here today because this
whole situation was awkwardly handled.
To the best of my knowledge, Mr. Cummins had been
considering leaving. Mr. Cummins had announced in the press
that he was leaving. Mr. Cummins had said in the press that he
had been thinking of leaving for a year. Mr. Cummins further
said that he was--one of the reasons he was leaving is that he
had four children, either college age or heading to college at
some point.
And so, you know, we find ourselves in a situation where we
have a U.S. Attorney who had been planning to leave, to the
best of my knowledge. We had identified an exceptionally
qualified candidate, and, you know, unfortunately Mr. Cummins
has had to endure all this discussion about him being fired,
which as far as I can tell he was, in fact, fired, but it's sad
because, unfortunately, he had already said he was leaving, so
here we are talking about a guy who wanted to leave getting
fired. And had people communicated this, we might not find
ourselves in this situation or sitting here today.
Senator Specter. Deputy Attorney General McNulty said that
Mr. Cummins had done nothing wrong but was removed to make room
for Mr. Griffin. Now, your testimony is quite to the contrary,
that Mr. Cummins had planned to leave--
Ms. Taylor. Well--
Senator Specter. Wait a minute. I haven't finished the
question yet.
Ms. Taylor. I'm sorry. I apologize.
Senator Specter. Mr. Cummins had planned to leave and that
Mr. Griffin was an Arkansas resident and had prosecutorial
experience and was a logical person to fill him in.
Now, how do you account for Mr. McNulty having a different
conclusion, if you can account for it, that Mr. Cummins was
removed or asked to resign to make room for Mr. Griffin?
Ms. Taylor. Again, it's--I don't know all the conversations
that took place with Mr. Cummins, and I don't know sort of the
entire timeline. I know what I read in the press, and I know
what my personal knowledge was and what I heard. And so I think
this is a situation where, you know, had there been better
communication, we could have clearly avoided this situation.
Senator Specter. Ms. Taylor, would it be fair to say that
you were closer to Mr. Griffin because of your association as
his being your Assistant Political Director--
Ms. Taylor. I know Mr. Griffin very well. I have worked
with him on several occasions. He was a Deputy--
Senator Specter. I hadn't finished my question. Closer to
Mr. Griffin than Mr. McNulty was?
Ms. Taylor. Yes. I know Mr. Griffin quite well. I can't
speak for Mr. McNulty's relationship with him, but I would be
surprised if he knew him better than I did.
Senator Specter. All right. Now, there were also
allegations that Ms. Miers, then-White House Counsel, had
intervened and also suspicions that Mr. Karl Rove had
intervened to replace Mr. Griffin in place of Mr. Cummins, what
knowledge do you have of those matters?
Ms. Taylor. Again, I'm trying to follow sort of this
process here so that I'm respectful of the President's
assertion of executive privilege. You know, all I can say about
Tim is that Tim worked in the White House. He worked with a lot
of people. He worked with people at the Justice Department
because he did a tour of service there. He worked with people
in Arkansas.
A lot of people knew this individual, and a lot of people
thought very highly of him. His character, his work ethic, and
his skill I think spoke very highly to who he was. And so I
don't think it would be--I think it would be fair for the
Committee to assume that there are a lot of people who knew him
and had an opinion of him and had the personal experience of
working with him.
Senator Specter. Just one or two more questions, Mr.
Chairman.
Did Mr. Rove or Ms. Miers intervene in the replacement of
Mr. Cummins with Mr. Griffin?
Ms. Taylor. I can't answer that. I don't--I have--again,
I'm trying to answer your questions and respect the--
Senator Specter. Can you not answer it because of the
privilege or because you just don't know?
Ms. Taylor. I don't--I don't--I don't specifically know. I
don't know for sure if one or both or either did.
Senator Specter. Your testimony is that Mr. Cummins had
planned to leave and that Mr. Griffin was a logical
replacement, and that is how you saw it.
Ms. Taylor. Yes, and I think it would be fair for the
Committee to assume that other people saw it that way, too. And
I'm basing that on the fact that Mr. Griffin worked there and
other people knew him.
Senator Specter. I am being prompted by the Chairman to ask
what other people knew. Occasionally I ask some of his
questions.
Chairman Leahy. I do not have to prompt Senator Specter.
Senator Specter. What other people were you referring to?
Ms. Taylor. Well, Mr. Griffin served in the White House. He
was a Special Assistant to the President. He worked with many
members of the President's team, including the President's
senior staff. He worked with the members of the Counsel's
Office. He had done a tour of service at the Justice
Department. Because he's an Arkansas native, he worked closely
with people in Arkansas.
So a lot of people knew him and thought highly of him, so,
you know, I can only assume that other people would draw the
same conclusion about his character, his work ethic, and his
skill that I did.
Senator Specter. Thank you,
Ms. Taylor.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you, Senator Specter. And following
our--just so everybody will know what the list is under the
early bird rule, it will be Senator Kohl, then Senator Grassley
if he comes back, Senator Feinstein, Senator Feingold, Senator
Schumer, Senator Durbin, Senator Whitehouse, and Senator
Cardin. And we do have seats for other Republican Senators
should they want to come and--
Senator Specter. Mr. Chairman, an inquiry. How many
Democrats are present and how Republicans?
Chairman Leahy. Seven Democrats and one Republican, but
that one Republican is so formidable, it is a pretty even
number.
I would note for the record--
Senator Specter. Oh, we agree again.
[Laughter.]
Chairman Leahy. I would note for the record that every
single Republican was invited, every single Republican was
notified well over a week or two ago that we were going to have
this hearing, and the seats and the memos and the papers and
the water and, and, and, are set up for every single
Republican. They could be here. They could be here if they
wanted to be here.
Senator Kohl?
Senator Kohl. I thank you, Mr. Chairman.
Ms. Taylor, the appearance that politics plays a central
role in the day-to-day business of the Department of Justice
does call into question the integrity of our justice system,
and it greatly troubles many of us. In particular, I am deeply
troubled by the controversy surrounding the U.S. Attorney in
the Eastern District of Wisconsin. According to his supervisors
at the Department of Justice, both current and former, Mr.
Biskupic was a solid performer, and as far as we can tell,
nobody at DOJ had concerns about his performance or wanted him
fired. And yet his name appeared on a list of poor performers
who, in fact, should be fired.
After lengthy testimony from DOJ officials, we have yet to
find anyone who recommended his removal, and the only concerns
that have been expressed about his performance came from inside
the White House, from the President himself and Karl Rove.
And so did you or Karl Rove ever request that Department of
Justice officials remove Mr. Biskupic from his position as a
U.S. Attorney?
Ms. Taylor. I don't know.
Senator Kohl. Did you or Karl Rove ever discuss Mr.
Biskupic's performance with Kyle Sampson or other Department of
Justice officials?
Ms. Taylor. I did not ever discuss it, that I ever
remember. I don't recall. I don't believe I did.
Senator Kohl. Did you ever discuss his performance or
possible removal with anybody else in the White House?
Ms. Taylor. Not that I recall.
Senator Kohl. Did anyone else at the White House discuss
his performance with Kyle Sampson or other DOJ officials or
suggest that he be removed from his position as the U.S.
Attorney?
Ms. Taylor. Not that I recall.
Senator Kohl. Thank you very much, Mr. Chairman.
Senator Feinstein. Thank you very much.
Ms. Taylor, I am going to ask you a series of questions,
and you can elect to answer them or not. Who decided which U.S.
Attorneys to fire and why were they selected?
Ms. Taylor. Again, I'm trying to do the best I can here and
following the President's assertion of executive privilege and
determine what is a deliberation and what is a fact-based
question. So I really appreciate the Committee's under--
Senator Feinstein. You decline to answer?
Ms. Taylor. Yes.
Senator Feinstein. OK. Where did the plan to remove and
replace several U.S. Attorneys originate?
Ms. Taylor. Again, I have to--the President's--
Senator Feinstein. Thank you. OK.
What was the basis for deciding which U.S. Attorneys to
fire? What criteria were used to determine which ones to let
go?
Ms. Taylor. I don't know the answer to that.
Senator Feinstein. What was your role? Did you add or
remove names?
Ms. Taylor. I don't recall ever doing so.
Senator Feinstein. OK. Did you make any suggestions
regarding who should or should not be removed?
Ms. Taylor. The letter that Mr. Fielding has sent, that
would--to me determines that would be a deliberation.
Senator Feinstein. You decline. I just don't want---
Ms. Taylor. OK. I appreciate it.
Senator Feinstein. OK. When testifying before the Senate,
Kyle Sampson, formerly Chief of Staff to the Attorney General,
stated that the idea to avoid Senate confirmation for
replacement of U.S. Attorneys was a bad staff plan that was
eventually rejected in January of this year. He stated that
you, Sara Taylor, supported the idea of avoiding Senate
confirmation and that you were upset that the Attorney General
backed away from that strategy.
Ms. Taylor. Is your--is your question about the Arkansas
situation--
Senator Feinstein. This is in--
Ms. Taylor.--or are you asking the question broadly?
Senator Feinstein. He stated that you supported the idea of
avoiding Senate confirmation and that you were upset that the
Attorney General backed away from that strategy. That is in his
testimony on pages 88 to 93. Essentially, I am asking, is that
correct?
Ms. Taylor. I would--I believe, if my memory serves me
correct--I read Mr. Sampson's testimony. I believe that he was
talking about the Senate--the Arkansas situation specifically,
and my recollection of my--I was upset at one point, I was
upset greatly at one point because the day--
Senator Feinstein. --I do not understand what you were
upset about. What were you--
Ms. Taylor. I'm trying to explain. I'm trying to explain it
to you.
Senator Feinstein. OK.
Ms. Taylor. So the reasoning for me being so upset was that
I saw a friend of mine, a colleague of mine, who had become the
U.S. Attorney in the State of Arkansas--and we can debate how
that happened, but he was, in fact, the interim U.S. Attorney.
And as I understand it, there was a call where the Attorney
General had let Senator Pryor know that the White House would
not be nominating Mr. Griffin. And then he, as I understand it,
called Mr. Griffin to inform him of that decision. And so, yes,
I was very upset about that.
Senator Feinstein. That is not quite my question. Let me
repeat it again. Mr. Sampson testified that you supported the
idea of avoiding Senate confirmation. I am not talking about
the appointment. I am talking about avoiding Senate
confirmation, and that you were upset that the Attorney General
backed away. Is that correct?
Ms. Taylor. I don't believe that's an accurate reflect of
my position. I was upset because we had pulled, in my view,
sort of the rug out from underneath Tim Griffin and told him
that we would not be nominating him. And that is why I was
upset.
Senator Feinstein. You were perfectly willing to have him
go through Senate confirmation?
Ms. Taylor. I expected he would go through Senate
confirmation.
Senator Feinstein. OK. Then apparently Mr. Sampson did not
testify accurately.
Ms. Taylor. Well, and I think what Mr.--and, again, I am
trying to, you know, infer here, but I think that the
discussion was--the point in which you leave him--because I
want to be fair to Mr. Sampson. The point in which he is the
interim U.S. Attorney, at that point does he stay in the job or
does he be removed immediately? And so I certainly was
supportive of him staying in that job for a period of time.
Senator Feinstein. OK. In an e-mail exchange between you
and Mr. Sampson in February of this year, you said Bud Cummins
was removed because he was ``lazy.''
Ms. Taylor. I would--I'm sorry.
Senator Feinstein. Since then, Mr. McNulty has testified
before the House, and in response to your e-mail said, ``No one
has ever described Mr. Cummins to me as being `lazy.' ''
What led you to conclude that Mr. Cummins was lazy?
Ms. Taylor. That was an unnecessary comment, and I would
like to take this opportunity to apologize to Mr. Cummins. It
was unkind and it was unnecessary.
To answer your question, I had heard that. That may not be
fair, and it is not my intention today to compound the
embarrassment that e-mail may have caused him.
Senator Feinstein. All right. But you did say that.
Ms. Taylor. I said it, and it was in the e-mail, yes.
Senator Feinstein. OK.
Ms. Taylor. And I apologize for it.
Senator Feinstein. Thank you for that.
In an e-mail to Kyle Sampson from William Kelley on Monday,
December 4, 2006, he wrote, ``We're a go for the U.S. Attorney
plan. White House Leg., Political, and Communications have
signed off and acknowledge that we have to be committed to
follow through once the pressure comes.''
Did you sign off or see that plan?
Ms. Taylor. Senator, I have to infer that that is a
deliberation, and based on my understanding, it's not something
I am to talk about here today.
Senator Feinstein. All I am asking is if you saw the plan.
The answer is yes or no.
Ms. Taylor. I did not see it. I don't recall seeing it.
Senator Feinstein. Who, to the best of your knowledge,
suggested names that were part of the seven U.S. Attorneys that
were called on December 7th and told they were fired?
Ms. Taylor. I think that would be, you know, considered
internal deliberations, and I can't answer that question.
Senator Feinstein. Were you aware that U.S. Attorneys were
going to be called on December 7th and asked to summarily
resign?
Ms. Taylor. Again, under the President's assertion of
executive privilege, I decline answering.
Senator Feinstein. So you will not say whether you knew or
did not know?
Ms. Taylor. Is that a fact-based question?
[Ms. Taylor confers with counsel.]
Ms. Taylor. On advice of my counsel, I had heard that there
would be some U.S. Attorneys replaced. I don't recall knowing
that that was the date that they were being replaced on.
Senator Feinstein. OK. When you heard U.S. Attorneys were
being replaced--and this was obviously following Mr. Cummins
and a different set of U.S. Attorneys--what did you do?
Ms. Taylor. That I think falls well within the bounds of
internal White House deliberations, and I can't answer that
question.
Senator Feinstein. OK. My time is up. Thank you very much.
I appreciate it.
Ms. Taylor. Thank you, Senator.
Chairman Leahy. Thank you.
Next is Senator Schumer.
Senator Schumer. Well, thank you, Mr. Chairman.
I thank the witness. This is a difficult time for you and
the White House has put you in the position of sort of being a
tightrope walker here, trying to answer questions. I think you
are genuinely trying to answer questions you think you can, but
not being able to answer some because of the privilege.
But it's a very difficult position to be in. And, in fact,
you have answered some questions about views in the White
House. Senator Specter asked you, for instance, about how Mr.
Griffin was considered within the White House. Those are
deliberations of somebody in the White House.
I think it shows two things. I think it shows how this
broad claim of privilege just doesn't stand up, and I think it
shows that it's a weak claim. I think your testifying to some
of these things but not others weakens the claim further
because of your genuine desire to answer questions that you
can.
And again, this is not directed at you or your attorney,
but I would ask people in the White House to look at what's
happening here. It shows how specious much of their claim is
and it shows how many things can be answered. So, I want to ask
you a few questions related to you and your knowledge and not
others and things that came out.
The first question I want to ask you is, how many times did
people in political positions call you and ask you to get
involved in something a U.S. Attorney was doing?
Ms. Taylor. The letter that I received from Mr. Fielding
expressly stated ``internal and external communications'' and I
believe that your question, as I understand it, would be an
external communication and it's not something that I could
answer.
Senator Schumer. But this has nothing to do with any
deliberations within the White House whatsoever. I'm not asking
you about talking to anyone within the White House. I'm not
asking you even what you did after you received these
communications. I'm simply asking you, from the outside of the
White House, clearly not covered by privilege.
Ms. Taylor. If you're asking me how many times people
called me, I don't know.
Senator Schumer. Was it more than once?
Ms. Taylor. I'm sorry. What was your--
Senator Schumer. How many times did political people,
people in some political position or other, party-elected,
whatever, call you and complain about a U.S. Attorney and what
they were doing? More than once?
Ms. Taylor. Again--again, I believe that Mr. Fielding's
letter is quite clear, that external communications--again, I'm
trying to--and I appreciate your working with me.
Senator Schumer. You're trying to stay within the confines.
Ms. Taylor. I'm really trying to stay within the confines
of the letter. It's the course that I've chosen to follow. And
I am trying to be helpful to you, Senator, but I'm also trying
to be respectful of my former employer. And so I just--I only
can do my best as a non-attorney to infer that external
communications falls--what you're asking me is an external
communication.
Senator Schumer. OK. But what--
Ms. Taylor. I don't have an ability to independently assess
what is covered under privilege and not, and so I'm following
the letter that I have in front of me.
Senator Schumer. I appreciate that and I appreciate your
sincere efforts. I take them as sincere, I do.
Ms. Taylor. Uh-huh.
Senator Schumer. And I appreciate the box that this letter
has put you in. But I don't see--and maybe your attorney wants
to answer this--how an external communication from somebody
outside the Federal executive branch, executive branch to you,
and just asking how many times you received it can in any way
fall within the confines of the privilege, even the broad
privilege outlined in Mr. Fielding's letter.
[Witness conferring with attorney.]
Ms. Taylor. I would like to answer the question: the letter
says ``external communications''. I believe you asked me a
question about an external communication or a set of external
communications, and so I'm going to follow the guidelines laid
out by Mr. Fielding.
Senator Schumer. Well, if I might, with your permission,
Mr. Chairman, I'd like to ask the counsel how there's any
arguable claim that that fits under the privilege enunciated,
any claim of executive privilege. We're not asking--we're
asking about what someone else did and simply that Ms. Taylor
received.
Chairman Leahy. Mr. Eggleston, would you care to answer?
Mr. Eggleston. Yes. Thank you, sir. Mr. Schumer, I
appreciate your sensitivity about the position she's in, but
she, having spoken to me, has had to take the position that the
President has made the assertion that he has made and we can't
be in the business--and it's his right to make it, and we can't
be in the business of saying and analyzing separately whether
his assertion is appropriate or not appropriate.
We read the letter. The letter directs us not to testify
about external communications. You're asking about external
communications. If the White House were to call you and say we
didn't mean those kinds of external communications, I assure
you, she would answer those questions.
But as we read the letter, it appears to us--and what--I
think the position we're in is, I don't represent the President
and the President has written us this letter, and we just have
to do our best to really follow the letter.
Senator Schumer. Sir, you're a good lawyer and I'm not
going to put you on the spot, but I doubt that this discussion
would fall under any privilege that any court would recognize
because it simply doesn't even meet the definition arguendo.
Now, I understand you want to go with the letter, but there
are certain--even internal communications that Ms. Taylor
talked about. She did talk about, for instance, the view within
the White House of Mr. Griffin. That's an internal
communication. We're not here weighing which ones are harmful
and which ones aren't harmful to the White House or to what
anyone's pursuing. That's not how privilege works.
Ms. Taylor. With respect to Mr. Griffin, I told you what I
thought other people think. You know, again, I will continue to
try to be as cooperative as I can. I guess, you know, the only
alternative is to just sit here and not answer any questions.
And so I'm--
Senator Schumer. Well, I appreciate that. That's why I said
what I said at the beginning.
Ms. Taylor. Yeah.
Senator Schumer. I would just note that this letter, that
what you said here is, ``The President directed me to testify
concerning White House consideration, deliberation, or
communication, whether external or internal, relating to the
possible dismissal or appointment of U.S. Attorneys, including
consideration of possible responses to congressional and media
inquiries.''
I'm not asking about dismissal and appointments of U.S.
Attorneys. I'm simply asking, did any person from the political
sphere, outside of the executive branch of the White House,
which is the full extent of the privilege claim, communicated
with you? And I don't think--in all due respect to your
attorney, I don't think it falls within the letter here or your
statement at the beginning.
Mr. Eggleston. Mr. Schumer, may we consult again for a
moment?
Senator Schumer. Please.
[Witness conferring with attorney.]
Chairman Leahy. I would note that I'm giving Mr. Schumer a
little bit of extra time because of the consultation between
Ms. Taylor and her attorney.
Senator Schumer. Thank you, Mr. Chairman.
Chairman Leahy. Because we had agreed to have the attorney
there. Then after this line, we will then go to the next.
Ms. Taylor. You are a persuasive attorney, Mr. Schumer, and
you have persuaded my attorney. But rest assured, that will not
happen all day.
[Laughter.]
My job was the Political Director at the White House. One
can say, by definition, I heard complaints about all things,
all the time, from all over the country. That is a fair
characterization. That is an unwritten part of the job
description. So, you know, as to specific--
Senator Schumer. Well, how about complaints about U.S.
Attorneys?
Ms. Taylor. I suspect there were phone calls made to me at
times complaining about them. I don't recall any specific phone
calls.
Senator Schumer. You don't recall any specific phone calls?
Ms. Taylor. I don't recall any specific phone calls.
Senator Schumer. OK. My time has expired.
Ms. Taylor. Thank you.
Chairman Leahy. Thank you.
Senator Schumer. If we could have a second round, I'd like
to pursue.
Chairman Leahy. We will have a second round. Senator
Durbin?
Senator Durbin. Thank you, Mr. Chairman. Thank you, Ms.
Taylor and Mr. Eggleston.
Each of us in political life is sustained by loyal,
hardworking, talented people like yourself. When I heard
Senator Grassley talk about your background, I thought in
another life you might have been working on the Democratic
side. We have many people just like you who sustain us.
Today we are seeing an age-old drama unfold again when
political leaders at the highest level face hard questions and
hard times. Sometimes they feed young, loyal, talented people
like yourself into the line of fire. I'm sorry that you're
sitting at this table, although I can see already that you
handle yourself very well.
Karl Rove should be sitting at this table, not Sara Taylor.
Karl Rove should be answering these questions, not you. If Karl
Rove, whom I've known for over 30 years, were doing the right
thing, he would have spared you this experience. He would be
here right now, answering these questions.
And if the White House had done nothing wrong, then that
would be the end of the story. But clearly, you can understand
from our side of the table, we're having more and more
obstacles tossed in our path just to ask basic questions, and
you've heard some of them today.
Let me ask you your relationship with Karl Rove and the
White House. As Political Director, was he your boss?
Ms. Taylor. He was my boss.
Senator Durbin. And what kind of contacts did you have with
him on a daily basis?
Ms. Taylor. I had contact with him daily.
Senator Durbin. Was it regular?
Ms. Taylor. It was multiple times a day.
Senator Durbin. And his decision processes about political
things. Were you part of the conversation most of the time?
Ms. Taylor. I mean, certainly. I was the Political
Director. So if there was something on a political matter, you
know, particularly on--you know, involvement with what the
President would do--do or not do on behalf of a candidate,
certainly I would be involved in that decision.
Senator Durbin. And that's been the case for a number of
years?
Ms. Taylor. I've worked for--I've worked for Mr. Rove for a
little over 2 years, directly.
Senator Durbin. OK.
Now, I understand there was something called a Judicial
Selection Committee in the White House that made judicial and
U.S. Attorney nomination recommendations to the President. Are
you familiar with that type of committee?
Ms. Taylor. I knew that committee to exist.
Senator Durbin. Did you ever sit in on any of those
deliberations?
Ms. Taylor. I believe my answering that question would
indicate, you know, part of the White House deliberations and
who was included in what meetings, and that's an internal
deliberation and so I don't think I can answer that question.
Senator Durbin. You can't answer whether you even attended
such a meeting?
Ms. Taylor. As I understand the letter that I have, I
cannot.
Senator Durbin. OK. I won't press that any further.
Let me ask you about a couple things. In the back of this
whole debate about U.S. Attorneys seems to be looming a
question over and over again about voter fraud and elections.
And so I'd like to ask you, were you involved in the Bush-
Cheney reelection effort in the last cycle?
Ms. Taylor. Yeah. I was a strategist for the President's
reelection.
Senator Durbin. OK.
And did Mr. Griffin work with you?
Ms. Taylor. I worked with Mr. Griffin. He worked for the
Republican National Committee. But, yes, I worked with him.
Senator Durbin. And Monica Goodling testified that Mr.
Griffin's role in reference to that campaign involved ``vote
caging''. Are you familiar with that term?
Ms. Taylor. I have become familiar with that term through
the press article I read. I can't say I could give you a
definition of vote caging.
Senator Durbin. Well, what I've been told is that when mail
is sent to registered voters marked ``Do Not Forward'' and then
it's returned, that often those voters' credentials or capacity
to vote is challenged. It happens particularly among
minorities, such as African-Americans. So as I describe it, I
think that description is adequate.
Ms. Taylor. Uh-huh.
Senator Durbin. Are you familiar with that practice of
challenging voter credentials?
Ms. Taylor. I--you know, obviously candidates in political
parties and their staffs, going back long before any of us were
in this room, on this earth, have been challenging votes. So,
yes. I mean, that has occurred. Yeah. Yeah.
Senator Durbin. OK.
But personally, were you involved in any of those so-called
``vote caging'' efforts?
Ms. Taylor. Absolutely not. I have no memory of that coming
up.
Senator Durbin. You weren't?
Ms. Taylor. And let me just say something, if I could,
please. I know Tim Griffin. He has extraordinary character. And
I know what I've read about him and I know what's being said
about him, and I appreciate Senator Specter, who made a really
important point about how sometimes people's assertions about
one comment or one misplaced statement can follow somebody for
life, and I think it is horrible, what is being said about Tim
Griffin. He has incredible character and I don't believe he
would ever do anything like that.
Senator Durbin. I have not characterized him that way in
the questions that I've asked you.
Ms. Taylor. I know, and I appreciate you giving me a point
of privilege, I guess it is.
Senator Durbin. You have it.
Senator Schumer. That one, anyway.
Ms. Taylor. I'm sorry?
Senator Schumer. That one, anyway.
Ms. Taylor. OK.
Senator Durbin. Let me ask you, if I can. I find it
interesting that when you responded to Senator Kohl about Mr.
Biskupic, that you were fairly specific about conversations
within the White House and whether certain people said certain
things.
So do you believe that it is only in relation to the
Cummins-Griffin appointment that you are governed by this
executive privilege letter?
Ms. Taylor. I don't recall.
[Witness conferring with attorney.]
Ms. Taylor. It's--you know, again--you know, I didn't have
any knowledge of that situation or recall any knowledge of that
situation, and I answered it. Perhaps I--perhaps you're correct
and that did fall under the President's assertion of executive
privilege and I should have said nothing.
Senator Durbin. All right. Thank you.
Ms. Taylor. All right.
Senator Durbin. Thank you, Mr. Chairman. I yield back.
Chairman Leahy. Thank you very much, Senator Durbin.
Senator Whitehouse?
Senator Whitehouse. Hello, Ms. Taylor.
Ms. Taylor. Hi. How are you?
Senator Whitehouse. I'm fine, thank you.
Just a quick fact question: is there anything in your
employment agreement with the White House obliging you to honor
executive privilege after your departure from employment with
the White House?
Ms. Taylor. I--I don't recall that. I don't know. To answer
your question, I will say, Senator, I was a Deputy Assistant to
the President. I was a commissioned officer. I took an oath,
and I take that oath to the President very seriously.
Senator Whitehouse. For the record, may I have the answer
to that question when you're able to research it and determine
whether your employment agreement with the White House obliges
you contractually to honor executive privilege after the
departure from that office?
Ms. Taylor. I don't--I don't recall signing an employment
agreement. I--I just don't recall. I may have. I don't know the
answer to your question.
Senator Whitehouse. Will you supplement the record so that
you can inform yourself about that?
Ms. Taylor. We will--we will certainly attempt to.
Senator Whitehouse. OK. I appreciate that.
Tim Griffin, I gather, was an opposition researcher for the
Republican Party?
Ms. Taylor. Tim Griffin has served as a Director of
Research for the Republican National Committee, yes. So he was
the Director of Research.
Senator Whitehouse. And that would include opposition
research?
Ms. Taylor. That would include research on Republican
candidates' opponents.
Senator Whitehouse. Which is customarily referred to in the
trade as ``opposition research''?
Ms. Taylor. Yes.
Senator Whitehouse. OK.
Did it give you any hesitation that someone who chose that
particular career path would be in any way inhibited in setting
aside the motivations that would cause someone to pursue that
particular career and be a fully independent U.S. Attorney and
be able to set those partisan motivations completely and
totally aside?
Ms. Taylor. It gave me--no, none whatsoever. And I would
say, to the contrary. I think the fact that this person ran a
large research operation and has an incredible set of skills
with respect to research would serve him incredibly well as a
prosecutor.
Senator Whitehouse. As a long-time observer of political
life--
Ms. Taylor. Uh-huh.
Senator Whitehouse.--is it your opinion that the firing of
10 percent, approximately, of the U.S. Attorney corps in mid-
term is a customary practice of Presidents of the United
States?
Ms. Taylor. My understanding is that, and it is, in fact,
true, that U.S. Attorneys are political appointees to the
President. They serve at the pleasure of the President. They
serve in the same capacity that I serve the President, at his
pleasure.
And, you know--certainly I know, you know, there's been a
lot of press on this issue. I understand President Clinton, I
believe, removed all of the U.S. Attorneys but one when he came
into office. So, Presidents have that prerogative. That is the
way our government is set up.
Senator Whitehouse. And to go back to my question, is it
your opinion, based on your experience as a long-time observer
of government, that a mid-term firing of nearly 10 percent of
the U.S. Attorney corps is a customary practice of American
Presidents?
Ms. Taylor. I don't--I don't recall what President Reagan
and President Clinton did. I don't believe they did that, or
perhaps they did and they did it in a way that was, you know,
much more artful.
Senator Whitehouse. The White House has acknowledged
conducting political briefings on Republican electoral
prospects in more than a dozen government agencies, which are
ordinarily covered by legal restrictions on partisan political
activity.
The Washington Post reported that you gave a briefing at
the Environmental Protection Agency. Can you describe for us
what the substance of that briefing was that you gave at the
Environmental Protection Agency?
Ms. Taylor. I don't recall that briefing. I can tell you
generally that, if I were to be speaking in front of colleagues
and agencies, that I would do three things. I would, first,
thank them for their service. All these people work for the
President. They work hard. They endure personal sacrifices to
do these jobs and I think it's important that members of the
President's staff acknowledge it and thank them for their
service.
Second, I would often talk to them about what the President
was doing, where he would be going, what he would be talking
about, what he was focused on in any given sort of issue area,
and I would, you know, further talk about how they fit into
that, whatever the issue.
Third, I often gave them what I would call sort of a
political landscape overview. I have--one of the jobs as the
President's Political Director is to be very knowledgeable on
the political landscape of America.
Many of these people who work for the President, all of
them political appointees, are in one way, shape, or form
involved in politics and they have a deep interest in it. And
so, because it is my requirement in order to be knowledgeable
for my job, I often just would share that with people, what I
thought, what I felt was going on. And so they were
informative. We did them. We've done them as an administration.
We--President Clinton's staff did them, as best I understand
from news accounts. So I think this has gone on for a long time
and it was intended to inform people.
Senator Whitehouse. Would the political landscape briefings
go into individual congressional races?
Ms. Taylor. I would oftentimes give sort of an update on
what was going on in the country, and so if--if it were--if we
were focused on, you know--people were focused on a certain set
of races, I would oftentimes talk about those races.
And when I say ``people'', I mean the broad sort of
intellectual political community, because people read, and
they're interested, and they want to know, and they would
oftentimes ask me, you know, to come speak and tell them what I
thought.
Senator Whitehouse. So, individual congressional races,
individual candidates would be--
Ms. Taylor. Well, I can't--I don't think I would sort of
focus on one specific. I would give a broad overview of, you
know, what--what the two parties were doing, based as best as I
could tell it, and what the impact on that, you know, would be
on the President's ability to implement his policies.
Senator Whitehouse. You can understand the concern here, is
that the use of government facilities for briefings that
targeted particular candidates in particular races--
Ms. Taylor. Well, I take issue with--I'm sorry. I
apologize. I'm sorry. Maybe--Mr. Eggleston didn't think you
were finished. Are you finished?
Senator Whitehouse. In the light of that, are you telling
me that that is not what took place in these briefings?
Ms. Taylor. These briefings were informative. They were
meant to thank employees. They were meant to share with them
what the President was doing and their role. And--and--and
given my unique role within the White House, and given the fact
that many of these people had worked in politics in one way,
shape, or form and had an interest, I would oftentimes share my
knowledge and my viewpoint about the political landscape of the
country.
Senator Whitehouse. And would that include the
specification or targeting of particular candidates?
Ms. Taylor. Again, you're asking me if--I'm not--I'm not
following your--your question and I don't--what are you--what,
specifically, are you asking me?
Senator Whitehouse. Did the names of particular
candidates--
Ms. Taylor. Certainly if I was going into--you know, I
would talk about the--you know, what was going on in the
country. And so if--if there were 6, or 8, or 10, or 15, or--
you know, places where the sort of broader political
intelligentsia was focused, I would talk about those places.
Senator Whitehouse. By name of candidate?
Ms. Taylor. I would talk about--well, if you're talking
about the landscape, it's very hard to talk about the landscape
if you don't talk about the people who are the stars in the
show.
So I'm sure I mentioned candidates' names all the time, but
I don't--you know, it's--it would be a question of sharing, you
know, who they--what was going on, what people said was likely
to occur, what I thought about that, if I agreed, if I
disagreed, you know.
Senator Whitehouse. The extent to which program or grant
decisions should be influenced by your designation of these
candidates as vulnerable?
Ms. Taylor. I'm not sure I understand what you're asking
me. What is your--you have a question about grants?
Senator Whitehouse. Yes. I mean, you're talking to people
who have--
Ms. Taylor. Oh, I'm sorry. I'm sorry.
Senator Whitehouse. You're talking to people who have--
Ms. Taylor. I misunderstood you. No. My political
briefing--the purpose of those briefings was to inform people.
It was not to direct people on how to engage their activities
based on my opinions.
Senator Whitehouse. I'm out of time. Thank you.
Ms. Taylor. Thank you, Senator.
Chairman Leahy. Thank you.
Senator Cardin?
Senator Cardin. Thank you very much.
Let me tell you my concern, which I think is the
committee's concern. And that is that, on 1 day, eight U.S.
Attorneys were fired. Most of these U.S. Attorneys were
involved in sensitive political investigations in their State
or in their jurisdiction that was unpopular with the local
Republican political establishment.
It raises the question as to whether they were put on this
list because they were doing things that were unpopular to the
Republicans and, therefore, engaged the White House to fire
these U.S. Attorneys.
In your letter through counsel to this committee, you have
said that you have participated in no wrongdoings, that you
will not exert personal privileges. So can--let me first ask,
would it be participating in a wrongdoing if a U.S. Attorney
was removed because he or she was involved in a political--in
an investigation that was unpopular to the local political
establishment?
Ms. Taylor. You're asking me my opinion?
Senator Cardin. Yes.
Ms. Taylor. I believe that's the case.
Senator Cardin. That would be a wrongdoing?
Ms. Taylor. If you--yes.
Senator Cardin. Now, you've also indicated to Senator
Schumer that you were the point person to receive
communications from political players throughout the country.
Ms. Taylor. I was the President's Political Director and so
I spoke often to people around the country. Yes.
Senator Cardin. Now, you also indicated to Senator Schumer
that you couldn't recall any specific communication from local
political figures. Did I understand that correctly?
Ms. Taylor. That is--that is--that was my answer.
Senator Cardin. Let me give you another chance at it. Did
you receive telephone calls or other forms of communication in
regards to the U.S. Attorneys that were fired?
Ms. Taylor. I don't recall. I don't recall getting
communications about them.
Senator Cardin. You don't recall if someone called you to
complain about a U.S. Attorney?
Ms. Taylor. Senator, I am sure you can appreciate that
somebody who was in my position who got--and I'm estimating
here--roughly 20 phone calls a day, roughly 300 e-mails a day,
each and every day, about a myriad of topics, any and
everything you could probably--would not recall conversations
or phone calls that came to her. Senator, I can't remember what
I had for breakfast last week. I just don't recall any of those
conversations.
Senator Cardin. I assume what you had for breakfast last
week has not been the subject of considerable national
attention.
[Laughter.]
Ms. Taylor. Good God, I would hope not.
Senator Cardin. And I assume that once this issue became
such a national issue--
Ms. Taylor. Uh-huh.
Senator Cardin.--you've had a chance to review your
internal communications.
Ms. Taylor. Senator, I don't recall receiving any
communications or phone calls from people outside the White
House about these specific matters. I don't recall it. I don't
recall any.
Senator Cardin. Do you recall--and I'm trying not to invade
your use of the Presidential privilege, although I would assume
you would agree with me that if it involved serious wrongdoing,
you, as a private citizen, can make some independent judgments
here.
Ms. Taylor. You're asking me if I'm able to make
independent judgments?
Senator Cardin. Correct.
Ms. Taylor. Obviously I think all--
Senator Cardin. If it involved serious wrongdoing.
Ms. Taylor. I think all human beings are able to make
independent judgments.
Senator Cardin. Concerning whether there was, in fact,
serious wrongdoings involving political considerations--
Ms. Taylor. Oh.
Senator Cardin.--and the firing of U.S. Attorneys.
Ms. Taylor. I believe--I believe that--absolutely not. I
don't believe there were any wrongdoing done by anybody. You're
asking me what I believe, and I don't believe that anybody in
the White House did any wrongdoing. I don't believe that. That
is not--
Senator Cardin. And you base that conclusion on--
Ms. Taylor. You just asked me--I mean, you just asked me
the question and I'm answering your question. And you asked me
basically my opinion, and I'm telling you, I don't believe that
anybody did any wrongdoing.
Senator Cardin. Ms. Taylor, let me just point out, you seem
to be selective in the use of the Presidential privilege. It
seems like you're saying that, yes, I'm giving you all the
information I can when it's self-serving to the White House,
but not allowing us to have the information to make independent
judgment.
Ms. Taylor. Well, I appreciate your frustration. I noted
that we would likely be frustrated at times during this hearing
today. I'm doing the best I can and I'm trying to differentiate
between fact- and opinion- based questions and what Mr.
Fielding laid out.
Senator Cardin. But you--
Ms. Taylor. But you just asked me what I believed, and I'm
telling you what I believe.
Senator Cardin. That there was no wrongdoing done.
Ms. Taylor. Yes.
Senator Cardin. Was there any conversations that took place
in the White House in which you were party to in which the
political considerations were brought out in regards to the
firing of the U.S. Attorneys?
Ms. Taylor. Senator, your--your question would require me
to talk about deliberations within the White House and, as I
understand the letter given to me by Mr. Fielding, that is not
a question I can answer.
Senator Cardin. But as I understand from your previous
answer--you may want to check with your counsel on this--you
indicated that you were--there was no wrongdoing done in the
White House--
Ms. Taylor. You asked me--
Senator Cardin.--by anyone you knew.
Ms. Taylor. Well, you asked me my opinion. And my opinion
is, I don't believe that anybody did anything wrong or improper
with respect to this issue.
Senator Cardin. Were there political considerations, that
is, political as to the politics of these eight U.S. Attorneys?
Were they--do you have any knowledge of whether that was
involved in the firing of these U.S. Attorneys?
Ms. Taylor. Again, I think you're asking me to talk about
what I know or don't know, which is a White House deliberation.
And as I understand Mr. Fielding's letter, I have been
instructed not to talk about internal deliberations.
And so, again, I'm trying to be very literal in my
interpretation of Mr. Fielding's letter. And I understand that
we may disagree about that, but I'm doing my best to follow and
respect the Senate and do my best to follow and respect the
President whom I admire and worked for, and that is how I
interpret your question. So, we just, I guess, disagree about
whether I should answer it or not.
Senator Cardin. Based upon your assertion that there was no
wrongdoing done in regards to the U.S. Attorneys, was that
based upon any internal or external communications or meetings
in which you were involved with?
Ms. Taylor. Well, you know, I guess, Senator, I shouldn't
have answered that question because I don't know how I could
have that opinion. It didn't come uninformed, so I shouldn't
have answered that question and I apologize.
Senator Cardin. Thank you, Mr. Chairman.
Chairman Leahy. We have a roll call vote on, so I'm going
to take a 20-minute recess and then we will--we will come back.
We will stand in recess for 20 minutes.
[Whereupon, at 11:41 a.m. the hearing was recessed.]
AFTER RECESS [12:09 p.m.]
Chairman Leahy. OK. The vote has just finished. There are
still some coming back.
I was looking over my notes during the break, Ms. Taylor,
and I was really struck by one of your answers. I know the
President said recently he referred to our government as ``his
government''. He said ``my government''.
Most of us always assume it's a government of all of us,
not just of one individual. It's almost a monarchy kind of
question, or kind of answer that he gave, although it may
explain a lot of things.
And then you said, ``I took an oath to the President and I
take that oath very seriously.'' Did you mean, perhaps, you
took an oath to the Constitution?
Ms. Taylor. I--yes. Yeah. You're correct, I took an oath to
the Constitution. But what--
Chairman Leahy. Did you take a second oath to the
President?
Ms. Taylor. I did not. What I should have--
Chairman Leahy. So the answer was incorrect.
Ms. Taylor. The answer was incorrect.
Chairman Leahy. Thank you.
Ms. Taylor. What I should have said is, I took an oath. I
took that oath seriously. And I believe that taking that oath
means that I need to respect, and do respect, my service to the
President.
Chairman Leahy. No. The oath says that you take an oath to
uphold and protect the Constitution of the United States. That
is your paramount duty.
Ms. Taylor. Uh-huh.
Chairman Leahy. I know the President refers to the
government as being ``his government''. It's not. It's a
government of the people of America. Your oath is not to uphold
the President, nor is mine to uphold the Senate. My oath, like
your oath, is to uphold the Constitution.
Ms. Taylor. Uh-huh.
Chairman Leahy. Now, since the 2004 election, did you speak
with President Bush about replacing U.S. Attorneys?
Ms. Taylor. Again, I'm trying to--
Chairman Leahy. I know what you're trying to do.
Ms. Taylor. Well, I know. And I appreciate your patience.
But I'm trying to make a determination on deliberations versus
what is a fact-based question. And so I guess you asked me a
fact-based question. I did not speak to the President about
removing U.S. Attorneys.
Chairman Leahy. Did you attend any meeting with the
President since the 2004 election in which the removal and
replacement of U.S. Attorneys was discussed?
Ms. Taylor. I did not attend any meetings with the
President where that matter was discussed.
Chairman Leahy. Are you aware of any Presidential decision
documents since the 2004 election in which President Bush
decided to proceed with a replacement plan for U.S. Attorneys?
Ms. Taylor. I am not aware of a Presidential decision
document.
Chairman Leahy. And do you understand that your oath was to
uphold the Constitution?
Ms. Taylor. Let the record reflect that you are correct and
I was wrong. What I was trying to say was that--
Chairman Leahy. I know what you were trying to--
Ms. Taylor.--I have great respect for my President.
Chairman Leahy. And you said that in your opening
statement.
Ms. Taylor. Yes.
Chairman Leahy. And we understand that. And I would hope
that anybody who worked at the White House--
Ms. Taylor. Yeah. Yeah.
Chairman Leahy.--would feel that way about whoever was
President. But I'd also hope that everybody understands that
it's a government of laws and not of people.
Ms. Taylor. Uh-huh.
Chairman Leahy. The Constitution is preeminent over all of
us in this country.
Ms. Taylor. We agree on that.
Chairman Leahy. Thank you.
Now, when did you first become aware of reports of Mr.
Griffin's 2004 involvement as Chief of Communications for the
Bush-Cheney campaign and a vote caging scheme targeting largely
African-American voters for removal from voter rolls in Florida
when he was in the campaign in 2004?
Ms. Taylor. After the election in 2004, Mr. Griffin called
me, visited with me about--about it and how upset he was about,
that somebody would make such an egregious claim against him.
And so that's when I first learned that he had been accused of
it.
Chairman Leahy. Were you aware of a vote caging scheme
targeting largely African-American voters in Florida?
Ms. Taylor. I was neither aware of it, and also don't
believe that it occurred.
Chairman Leahy. So you felt he had not been involved.
Ms. Taylor. I believe that he was not involved. That is
what I believe.
Chairman Leahy. And you believe, further, that there had
never been a vote caging scheme in Florida?
Ms. Taylor. I believe, and am aware of nothing, and don't
believe that anybody who worked in a senior capacity for the
President--
Chairman Leahy. Not my question.
Ms. Taylor.--would have engaged in any kind of activity--
Chairman Leahy. Not my question,
Ms. Taylor. You're certainly knowledgeable enough to know
that was not my question. Let me repeat it. Are you aware of
any vote caging scheme targeting largely African-American
voters in Florida?
Ms. Taylor. I'm not aware of any. I do not believe there
was one, and I am confident--
Chairman Leahy. Not my question. You're not aware of any
such scheme?
Ms. Taylor. I was never--I am not aware of any such scheme.
Chairman Leahy. OK.
I'm going to give you a copy of a document numbered OAG-
1622. Are you familiar with this document?
Ms. Taylor. I'm sorry. If I could have it. Yes, I've seen
this document before.
Chairman Leahy. It's a copy, so people understand who can't
see it, of a February 28, 2007 e-mail from Scott Jennings to
K.R. at georgewbush.com, White House counsel Fred Fielding,
Kevin Sullivan, Dana Merino, and Kyle Sampson, copy to you,
with the subject line: ``NM U.S. Attorney: Urgent Issue''. Is
that correct?
Ms. Taylor. Yes. I see the document. Yeah.
Chairman Leahy. It says ``Urgent Issue''.
Ms. Taylor. Yeah. It says ``Urgent Issue'' in the document.
Chairman Leahy. Is K.R. at georgewbush.com a Republican
National Committee e-mail address to Karl Rove?
Ms. Taylor. I understand that to be the case, yes.
Chairman Leahy. You understand, or it is?
Ms. Taylor. It is.
Chairman Leahy. Thank you.
This e-mail describes a phone call your deputy, Mr.
Jennings, received from Senator Domenici's Chief of Staff
regarding David Iglesias' statement that two members of
Congress contacted him before the election to urge him to bring
indictments before the election, and one hung up on him angrily
out of frustration over his answer. Was the information
received in this e-mail of February 28th of this year new to
you?
Ms. Taylor. I have read the press accounts of this
situation and so I guess--
Chairman Leahy. Prior to seeing this e-mail.
Ms. Taylor. Well, I remember getting this e-mail,
obviously, at the time after this issue had blown up. So--
Chairman Leahy. When did you first become aware of these
contacts with Mr. Iglesias?
Ms. Taylor. You're asking, by the members? Chairman Leahy.
Yes.
Ms. Taylor. When I saw this e-mail.
Chairman Leahy. And you'd not heard anything about it
before then?
Ms. Taylor. To the best of my knowledge, when I saw this e-
mail was the first time I was made aware of the contacts by the
members.
Chairman Leahy. And were you aware of the New Mexican
Republican Party officials' complaints about Mr. Iglesias? Not
the members, but Republican Party officials.
Ms. Taylor. I can say that I was generally aware that many
individuals in New Mexico, for whatever reason, did not think
highly of this individual. But I--
Chairman Leahy. You were aware--again, Ms. Taylor--
Ms. Taylor. I'm sorry.
Chairman Leahy. I'm sure we'll give you plenty of chance to
followup if you'd like, but it would make life a lot easier if
you would take the time to answer my questions as I ask them.
Ms. Taylor. I--
Chairman Leahy. I should think that's an easy ``yes'' or
``no''.
Ms. Taylor. Well, I appreciate, Senator--I am mindful that
I want to make sure that I have this right. I believe that I
know that people were upset with him. I do not recall specific
individuals, though, necessarily.
Chairman Leahy. OK.
When, and how, did you first become aware of these
complaints?
Ms. Taylor. I don't recall.
Chairman Leahy. Do you know why Mr. Iglesias was asked to
resign?
Ms. Taylor. I don't know. I know what I've read in the
newspaper.
Chairman Leahy. When did you first become aware of reasons
for his--for his resignation?
Ms. Taylor. I believe that I would have to go into sort of
a White House deliberation process to answer your question and
I don't think that the--
Chairman Leahy. Would it be safe to say by that answer it
wasn't just from the news accounts?
Ms. Taylor. Again, you are asking me to talk about a White
House deliberation and, as I'm trying to make the determination
between what is a fact-based question and what is a--what is a
deliberation question, I'm doing the best that I can here.
Chairman Leahy. We have two answers that appear to
contradict each other, but I'm sure you'll have a chance to
review the transcript and decide whether, indeed, they do. To
me, they appear to.
When, and how, did you first learn of a packet of
information Mr. Rove sent to Mr. Sampson related to voter fraud
in Wisconsin prior to the 2006 elections? That's my last
question, assuming you answer it.
Ms. Taylor. I--I'm not sure that I recall that being ever
the--I don't recall that. I don't recall that he did that. Was
that in the press?
Chairman Leahy. I'm asking, did you ever learn of a packet
of information Mr. Rove sent to Mr. Sampson related to voter
fraud in Wisconsin prior to the 2006 elections?
Ms. Taylor. I don't recall knowing about that.
Chairman Leahy. We'll come back to that.
Senator Specter?
Senator Specter. Thank you, Mr. Chairman.
When my first round concluded, Ms. Taylor, we were on the
subject as to the issue of intervention by White House
officials on the termination of Mr. Cummins and the replacement
with Mr. Griffin.
Ms. Taylor. Uh-huh.
Senator Specter. Without going into any of the issues that
you have raised on executive privilege, the question has been
raised, reported in the press, that White House counsel Harriet
Miers ``intervened'' on behalf of Mr. Griffin. That's the way
the newspaper stories characterized it. Are you in a position
to say whether that was true or false?
Ms. Taylor. I believe that that would be subject--answering
that question would be subject to Mr. Fielding's letter. It
would reveal internal White House communications and I don't--I
don't believe I can answer that.
Senator Specter. There were also questions raised as to
whether Mr. Karl Rove was involved in the replacement of Mr.
Cummins by Mr. Griffin. Can you shed any light on that
question?
Ms. Taylor. You know, I--I guess what I--I think that
certainly the same would apply to Mr. Rove in terms of internal
deliberations. What I would say is, Tim worked with these
people directly so it's fair to assume that these individuals
had an opinion about Tim because they knew him.
What I don't think that I can do is go into White House
deliberations about--about who, what, where, why. But I do
believe that, you know, certainly it's fair to assume that
those two would have a great deal of--of knowledge about Mr.
Griffin and his--his background.
Senator Specter. Well, you were the Political Director, as
you've already testified. Was there a political overtone to the
replacement of Mr. Cummins by Mr. Griffin to try to carry out
some political agenda as opposed to the public policies of the
administration on the priority of Federal prosecutions?
Ms. Taylor. I don't believe that's the case at all. I
believe Mr. Griffin was extraordinarily well qualified for that
job. Mr. Griffin had just returned from Iraq, where he had
served our country in a forward-operating unit. It was an
opportunity for him, as somebody who had been a prosecutor, to
serve his country yet again. And, you know, again, I'm telling
you what I believe to be the case, and that's my assessment of
his situation.
Senator Specter. Ms. Taylor, with respect to the
resignation of U.S. Attorney Carol Lam in San Diego, there had
been questions raised--have been questions raised--as to
whether the U.S. Attorney was hot on the trail of confederates
of former Congressman Duke Cunningham, who is now serving an 8-
year jail sentence. Are you in a position to shed any light on
the truth or falsity of that suspicion?
Ms. Taylor. I--I guess all I can say about that is, I
really don't know much about--about her or why she--other than
what I've read in the press.
Senator Specter. You have been asked about U.S. Attorney
Iglesias in New Mexico. Are you in a position to shed any light
on whether he was replaced--asked to resign/replaced--because
of his alleged failure to prosecute vote fraud cases?
Ms. Taylor. I--I don't believe that was the case. You know,
I--
Senator Specter. What do you believe was the case?
Ms. Taylor. You know, my understanding is that--and again,
much of my knowledge is based on what I have read in the
press--is that there's a large case there where they didn't
believe that he had prosecuted. He'd only brought one
indictment when he could, or should, have brought many more
indictments, potentially. And so it is not my belief that that
was the case.
I--you know, again, I'm trying to walk a very fine line
here and I'm probably answering questions that really fall
within the guidelines of Mr. Fielding's letter, and I'm going
to do my best not to do that.
Senator Specter. Ms. Taylor, aside from what you've read in
the press, are you in a position to shed any light on the
replacement of Mr. John McKay in the State of Washington?
Ms. Taylor. I--I don't--there are--I think my talking about
these specific situations is clearly an internal or external
deliberation. And whether I have knowledge or don't have
knowledge, as is the case, I don't think that I can talk about
that, Senator.
Senator Specter. All right.
I have a limited amount of time left and I want to observe
the time. I would like you to submit in writing, to the extent
you can, aside from what you've read in the newspapers--
Ms. Taylor. Uh-huh.
Senator Specter.--whether you have any knowledge,
consistent with the limitations on your testimony, as to the
replacement of Paul Charlton in Arizona, or Dan Bogden in
Nevada, or Kevin Ryan in San Francisco, or Margaret Chiara in
Michigan, or Todd Graves in Kansas City.
Ms. Taylor. I--
Senator Specter. Go ahead.
Ms. Taylor. I'm sorry. I didn't mean to interrupt you. I
apologize.
Senator Specter. Go ahead.
Ms. Taylor. I'll confer with my attorney and we will
certainly do our best to be helpful to the committee, while
respecting Mr. Fielding's letter.
Senator Specter. Well, Ms. Taylor, I think your testimony
has been helpful today, specifically as to Arkansas, because
you knew Mr. Griffin so well, having served with him in the
Office of Political Director, with his being your assistant,
and you know first-hand his qualifications as a prosecutor and
you have some personal knowledge as to the situation with Mr.
Cummins, with his having stated an intention to resign as early
as 2004.
When we asked you questions about what you've read in the
newspapers, we know you're doing your best. Frankly, that's not
very probative here. But when you know Mr. Griffin and you know
the situation with Mr. Cummins, that is helpful.
I think this might serve as a prototype to try to get some
information from other people in the White House who could
testify without going into executive privilege, because I think
this has been useful. Senator Schumer almost looked like he was
nodding in agreement; I'm not quite sure about that.
Senator Schumer. I'm not quite sure either, Mr. Ranking
Member.
Senator Specter. Well, if there's some doubt with Senator
Schumer, that's an advance. That's real progress.
But what we've been trying to do, is find out the reasons.
We started with the Attorney General. The Attorney General
called me up before he testified and sought some advice.
I said, ``I'm glad to give you advice, Al. This is not a
`gotcha' game. What we need to know, in specifics, is why each
one of these individuals was asked to resign and we need to
know if there's documentation on it, and we need to know if
there's corroboration as to the reasons so we can evaluate
it.''
We've had, just, a lot of smoke about U.S. Attorney Lam
being hot on the trail of Duke Cunningham's confederates. We
had a lot of smoke on a lot of subjects.
After we had a very testy day when he testified a few
months ago, he called me up the next day and said, ``What
should I do?'' I said the same thing: ``We don't want to play
'gotcha'. Your testimony yesterday hurt you a lot and hurt the
Department of Justice a lot, and you're under a lot of concern
that the Department is dysfunctional. So, come up and tell us.
Tell us what happened.''
I'm sure the President, if not watching C-SPAN 3, is aware
of what you're doing and will have a report on it. I would urge
him to use the help that you've been to us within the confines
that he has set on you, which I think you've complied with, and
try to get us the information so we can come to a conclusion.
Because I think if we came a conclusion, we would shed some
real light on whether the Attorney General should stay or go.
Senator Schumer. Thank you.
Senator Specter. Thank you, Mr. Chairman.
Senator Schumer. Thank you.
Senator Specter. Are you the Chairman?
Senator Schumer. No. Just all too fleetingly.
Senator Specter. You're acting Chairman?
Senator Schumer. Yes. Anyway, I thank my colleague for, as
usual, his thoughtful comments. I, too, think the testimony has
been helpful, but in a different kind of way.
I think it shows how this privilege assertion--not by you,
Ms. Taylor, but by the White House--is overblown, how you've
weaved in and out of it occasionally. You've answered questions
that would probably fall within it, and then decided not to
answer questions that might be without it.
It's very difficult, as I said, to do, and I know you're
trying to do it. But there are times, I guess, when certain
questions are easier to answer or harder to answer based on
what happened rather than the privilege or not.
But I just want to go back and followup on where we left
off when I finished where you did say you could answer
questions about outside the executive branch communications.
You couldn't recall any related to U.S. Attorneys. I'm just
going to go through the list here and then have a few other
questions.
So my questions to you are, with respect to each of the
following U.S. Attorneys, did you ever hear any complaints from
outside the executive branch? I'm not judging the validity of
those complaints. I'm not even asking you what was said. I'm
asking if you heard complaints from the outside, particularly
from political figures: David Iglesias?
Ms. Taylor. Senator, again, as I interpret the
President's--the President's counsel, Mr. Fielding's letter to
me, I cannot discuss external communications.
Senator Schumer. But you had agreed earlier that you could
answer that question and you said, in general, when I asked you
the question, you said you could answer it, and then you said
``I don't recall''. I'm just going over specific names.
Ms. Taylor. OK. I--I--OK. I--I apologize.
Senator Schumer. Yes. Did you ever hear from any political
people outside the White House, outside the executive branch,
complaints about how David Iglesias conducted himself as U.S.
Attorney?
Ms. Taylor. I don't recall any specific complaints. I have
a general impression that there were people--many people--who
did not think highly of him. I don't know specifically how--
what that came--
Senator Schumer. OK.
Ms. Taylor. You know, whether that was people internally
repeating, you know, their views. I don't recall if that was
somebody calling me. I just--I don't recall any specific--
Senator Schumer. Any call.
Ms. Taylor. Yes.
Senator Schumer. OK.
Now, we know from e-mails and testimony that your deputy,
Scott Jennings, arranged in 2006 for Justice Department
officials to meet with two New Mexico attorneys active in
Republican politics, Mickey Barnett and Pat Rodgers.
Barnett and Rodgers also told Matt Friedrich, the Principal
Deputy of the DOJ Criminal Division, that David Iglesias was
not pursuing a voter fraud prosecution quickly enough for their
case, and Mr. Friedrich also recalls hearing from Monica
Goodling that Messrs. Barnett and Rodgers had gone over to the
Justice Department that day from the White House, is what he
said. He testified: ``It was clear to me they did not want him
to be U.S. Attorney.''
Do you know whether this White House meeting happened?
Ms. Taylor. I have read the accounts that have occurred, so
based on what other people say, I believe that his--that it did
occur.
Senator Schumer. But do you have any--did you have personal
knowledge of it occurring?
Ms. Taylor. I don't. The first time I learned of it was
when it was raised in the press.
Senator Schumer. OK.
Were you present at it?
Ms. Taylor. I was not present at it.
Senator Schumer. OK.
And you don't know how many meetings there were in that
regard.
Ms. Taylor. Uh-huh.
Senator Schumer. Nor did you have anything to do with
facilitating a meeting, you or your office, between Mr. Barnett
and Justice Department officials, is that correct?
Ms. Taylor. I don't recall ever facilitating a meeting.
Senator Schumer. OK.
Now, newspaper reports also say that New Mexico's
Republican Party chairman, Alan Weh, complained to a political
liaison of Karl Rove's in 2005 about David Iglesias and asked
that Mr. Iglesias be removed. Mr. Rove later told Mr. Weh
personally, ``He's gone.''
Did you have any communications in regards to this with Mr.
Weh?
Ms. Taylor. I don't recall ever having communications with
Mr. Weh about this issue.
Senator Schumer. Are you aware that Mr. Weh might have
called someone else under your wing in the Department?
Ms. Taylor. I'm not aware of any phone calls that Mr. Weh
made.
Senator Schumer. OK.
Did you know Mickey Barnett, Pat Rodgers, or Alan Weh at
all?
Ms. Taylor. I believe I have met Mickey Barnett, and I
believe that I have met Mr. Weh on a couple of occasions.
Senator Schumer. But nothing in relation to the U.S.
Attorneys?
Ms. Taylor. I don't recall ever talking to either of them
about that topic.
Senator Schumer. OK. OK.
But you did talk with them?
Ms. Taylor. Mr. Weh was the chairman of the New Mexico
Party, so I would see him at Republican National Committee
meetings.
Senator Schumer. OK. All right.
And I just want to just read the names--Senator Specter
talked about some of them--and make sure you don't recall--
Ms. Taylor. OK.
Senator Schumer.--talking to any of the--any outside
people, outside the White House, outside the executive branch
who had complaint about Kevin Ryan. You don't recall?
Ms. Taylor. I don't recall.
Senator Schumer. John McKay?
Ms. Taylor. I don't recall.
Senator Schumer. Paul Charlton?
Ms. Taylor. I don't recall.
Senator Schumer. Carol Lam?
Ms. Taylor. I do not recall.
Senator Schumer. Daniel Bogden?
Ms. Taylor. I do not recall.
Senator Schumer. Margaret Chiara?
Ms. Taylor. I do not recall.
Senator Schumer. Todd Graves?
Ms. Taylor. I don't recall any.
Senator Schumer. Bud Cummins?
Ms. Taylor. I don't--and I don't mean to pause.
Senator Schumer. It's OK. You can pause.
Ms. Taylor. I just--I want to make sure that--I don't
recall any complaints about him. I--I would say that I may
recall, you know, unfortunate comments.
Senator Schumer. That's sort of--it's a fine line.
Ms. Taylor. Yeah. You know, again, I really am trying hard
not to compound any embarrassment I may have caused this
individual. But I--so, I don't recall any specific complaints
about him.
Senator Schumer. You don't. OK.
And how about Steven Biskupic?
Ms. Taylor. I don't recall any complaints about him.
Senator Schumer. OK. Thank you. Thank you, Mr. Chairman.
Thank you, again,
Ms. Taylor. I join Senator Specter in appreciating that
you're trying to answer these questions, the difficulty of it.
As I said, I think you sometimes stepped on one side of the
line and then not wanted to step on the other side.
Ms. Taylor. Well, I--
Senator Schumer. But I know it's a difficult thing to do.
Ms. Taylor. Yeah.
Senator Schumer. And to me, it simply reflects the
unwieldiness, incorrectness, breadth of the President's claim
of privilege. But I thank you for being here.
Senator Whitehouse. Hello again, Ms. Taylor.
Ms. Taylor. Hi.
Senator Whitehouse. When you indicated that U.S. Attorneys
may have been fired mid-term, I think your phrase was, ``more
artfully'' in previous administrations, do you have information
that that took place or were you simply asserting a hypothesis
or a possibility?
Ms. Taylor. I was simply making a comment, you know,
about--it was a hypothesis, you know.
Senator Whitehouse. OK.
So you have no information that this was a customary
practice of any former President.
Ms. Taylor. I don't have any information that it was
customary. I'm not--I'm not sure whether it was or it wasn't.
Senator Whitehouse. OK.
I'd like to ask you to look at the e-mail that you've
already looked at before. It's 1814.
Ms. Taylor. I do have it.
Senator Whitehouse. Yes.
Ms. Taylor. Yes.
Senator Whitehouse. There are two sentences in it that I
want to ask you about. The first, is the sentence or the clause
``you forced him to do what he did.''
Ms. Taylor. Yes.
Senator Whitehouse. Do you see that?
Ms. Taylor. I do see that.
Senator Whitehouse. Let me start by asking who ``you'' is
in that sentence.
Ms. Taylor. ``You'' is generally the Department of Justice.
Senator Whitehouse. And who is ``him''?
Ms. Taylor. ``Him'' is Tim Griffin.
Senator Whitehouse. And ``he'' is also Tim Griffin?
Ms. Taylor. Yeah. ``You forced him,'' Tim Griffin, ``to do
what he did.''
Senator Whitehouse. OK.
What is it that he was forced to do that is referenced
there?
Ms. Taylor. I believe that--well, my e-mail may not be
technically correct. I believe that the--when Senator Pryor was
informed that the White House would not be going forward with
Mr. Griffin's name as the U.S. Attorney, that Mr. Griffin--
Senator Pryor was aware of that information.
Then Tim was made aware of that information, and I believe
that Tim rightly concluded that he--that he unfortunately had
the opportunity to either announce that he would not seek the
nomination or read about it in the newspaper the next day.
And the reason for my ire was simply because, you know,
here we had a guy who had just returned from Iraq, he had just
served as a Reservist in Mosul, of all places. He comes back,
he moves home, he becomes the U.S. Attorney, and--you know, and
then he had to endure this process. I was--I was furious about
it and it's really an unfortunate set of circumstances.
Senator Whitehouse. So the words ``what he did'' refers
specifically to what?
Ms. Taylor. It refers to him announcing that he would not
seek the U.S. Attorney slot, that he would not put his name
forward to be nominated to be the U.S. Attorney.
Senator Whitehouse. OK.
The next phrase that I'm interested in is at the bottom of
that same little paragraph.
Ms. Taylor. Uh-huh.
Senator Whitehouse. ``It's why we got rid of him.''
Ms. Taylor. Uh-huh.
Senator Whitehouse. Let's start with the ``we''. Who is the
``we'' in there?
Ms. Taylor. The ``we'' is, collectively, the
administration. Mr. Cummins had been let go and the
administration let him go, so ``we'' is a collective term.
Senator Whitehouse. OK.
Ms. Taylor. We both worked--both Kyle and I worked,
obviously, in the administration.
Senator Whitehouse. And how did ``we'' come to make that
determination? What is the basis that connects ``Bud is lazy''
to ``we got rid of him''?
Ms. Taylor. I believe that, again, Mr. Cummins was let go.
It is not my goal or intention to confound any embarrassment
that has been caused to him today. I feel badly about that.
I think this whole situation is incredibly unfortunate,
given the fact that Mr. Cummins, who has served the President
and served the government well, and is an honorable person, was
put in a situation where he was planning on leaving and, had
there simply just been better communication on everyone's part,
that he would have done what he was planning on doing.
And we had a qualified exceptional candidate who was
willing to serve, interested in serving, and that we weren't
able to find a situation where we worked that process out and
now neither of them is serving as the U.S. Attorney.
Senator Whitehouse. Well, I'm not trying to pile on Mr.
Cummins either. In fact, frankly, I think the way he's handled
himself through this episode and since this episode has done
him great credit. I think he has come across as very candid,
very thoughtful, very game, very capable. I think he's come
across great, frankly. I think it's been other people that have
come across less well than him.
So my concern is less with compounding any harm to him than
I am with trying to figure out what the thread is that connects
the idea that he is lazy to the determination to get rid of
him, and who was in that chain of contact. I mean, you
obviously knew that we got rid of him. You obviously had the
opinion that ``Bud is lazy''. I'm trying to connect the dots as
to where that comes from. What's the decision train that leads
to that conclusion?
Ms. Taylor. You are--that would clearly be--my discussing
what I do or do not know would clearly be internal White House
deliberations and I don't believe I'm at--in a place where I
can answer that today.
Senator Whitehouse. OK.
Just to make the point clear, we have in front of us an e-
mail that says these things.
Ms. Taylor. I understand that.
Senator Whitehouse. It is not protected by executive
privilege, otherwise we wouldn't have it, presumably. And yet,
I'm unable to discuss it with you because of this assertion of
executive privilege.
Ms. Taylor. Uh-huh.
Senator Whitehouse. I'm not challenging you on this, Ms.
Taylor, because I don't think this is your assertion.
Ms. Taylor. Uh-huh.
Senator Whitehouse. But I think it's yet another example of
how ludicrous and extreme the assertion of executive privilege
is in this case when you are left in this position right now
where, looking at an e-mail, it's one that you wrote, I'm
asking you about your own words, they're not privileged, and
yet you can't explain them.
And again, this is not your fault. You've been put in this
position. I'm making this point, really, rhetorically through
this question, but I think it is yet another example of really
the unbelievably awkward and preposterous situation the
committee has been put in by the wildly broad assertion of the
privilege here.
One last question, if I may, Mr. Chairman.
Chairman Leahy. Of course.
Senator Whitehouse. To your knowledge, was the President
involved in any way in the decision to remove these U.S.
Attorneys?
Ms. Taylor. I don't have any knowledge that he was.
Senator Whitehouse. Thank you.
Senator Specter. I have no further questions, depending on
any new avenues opened by the Chairman's next round.
Chairman Leahy. It is a warning to the Chairman.
Well, let's go back to the--or let's go to the question of
the Western District of Missouri. Both the courts and others
have indicated there was an attempt by the prosecution by the
U.S. Attorney's office to possibly influence an election there.
Actions were taken in violation of the Department of Justice's
own guidelines, the so-called Red Book for U.S. Attorneys so as
not to influence elections, but yet steps were taken.
So let's take it bit by bit. When did you first learn that
Todd Graves, the U.S. Attorney for the Western District of
Missouri, was being asked to resign?
Ms. Taylor. My recollection of him resigning was when I
read it in the newspaper. That's my recollection.
Chairman Leahy. Were you aware that he'd been asked to
resign?
Ms. Taylor. I don't recall being aware.
Chairman Leahy. When did you first learn that Bradley
Schlozman was being considered to replace him as interim U.S.
Attorney for that district?
Ms. Taylor. To the best of--just--I'm sorry.
[Witness conferring with attorney.]
Chairman Leahy. We have gotten used to you conferring with
your attorney. That is why we let him sit there. Go ahead and
confer. But I'm still going to want an answer to the question.
[Witness conferring with attorney.]
Ms. Taylor. Sorry. I don't recall when he became the U.S.
Attorney. I think I recall, you know, sort of being made aware
of it in press accounts. I don't--
Chairman Leahy. Not really my question. My question was,
when did you first learn that he was being considered as the--
Ms. Taylor. I don't--
Chairman Leahy.--interim U.S. Attorney?
Ms. Taylor. I don't recall ever--I don't recall ever
knowing.
Chairman Leahy. Were you ever aware that he was going to be
put in without coming to the Senate for confirmation?
Ms. Taylor. I don't recall being aware of that.
Chairman Leahy. OK.
Let me give you a copy of a document numbered OAG-45. Can
someone give that to Ms. Taylor, please? This is a copy of a
December 4, 2006 e-mail exchange between Mr. Sampson and Deputy
White House Counsel William Kelley, and it's copied to White
House Counsel Harriet Miers. Is that correct? Without going
into what's in it, is that correct?
Ms. Taylor. Yeah, that's correct.
Chairman Leahy. Now, in Mr. Kelley's e-mail he states,
``We're a go for the U.S. Attorney plan. WH ledge--White House
ledge, political and communications has signed off, and
acknowledged we have to be committed to following through once
the pressure comes.'' Is that what it says?
Ms. Taylor. That is, in fact, what it says.
Chairman Leahy. Now, what step did you take to evaluate the
plan for replacing multiple U.S. Attorneys before you signed
off on it? Because it says that the ``White House political''
have signed off. You were the head of the White House
political.
Ms. Taylor. I think my discussing internal deliberations is
not appropriate under the guidelines of the letter that I
received from Mr. Fielding.
Chairman Leahy. Are you aware that Kyle Sampson testified
that you were the head of the White House Political Operations
at this time and you were the person that signed off on the
plan?
Ms. Taylor. Did Mr. Sampson--did Mr. Sampson say that I
signed off on the plan or did he just say that I was the head
of the White House Office of Political Affairs?
Chairman Leahy. He said you were the person who signed off
on the plan.
Ms. Taylor. I don't recall him making that statement,
Senator.
Chairman Leahy. Did you sign off on the plan?
Ms. Taylor. Senator, my--my saying I did or didn't sign off
on something--
Chairman Leahy. Well, if Mr. Sampson, who testified under
oath--if he said that you were the person who signed off on
this plan, would that be a lie?
Ms. Taylor. Senator, the President's counsel, Mr. Fielding,
has sent me a letter directing me not to discuss internal or--
Chairman Leahy. So what you're saying is, even if we have
things that have been discussed in open session, especially if
the finger is pointed at you, you can hide behind this broad
claim of executive privilege because of your oath to the
President?
Ms. Taylor. Senator, I--I am not in the place to
independently make a determination about the President's
assertion and I am doing the best I can to answer those
questions which I believe do not fall within Mr. Fielding's
letter, and doing my--and answering--and not answering those
that do fall in the letter.
Chairman Leahy. Ms. Taylor, I think you're doing the best
you can not to answer any legitimate questions here, and I
think the White House is helping you continue that kind of a
cover-up.
How was the plan for dismissal of multiple U.S. Attorneys
shared with you for your sign-off?
Ms. Taylor. I--
[Witness conferring with attorney.]
Ms. Taylor. Again, I can't--you know, I cannot answer the
question. That is--that falls within the guidelines of the
letter that Mr. Fielding sent me. And I'm--again, and I
appreciate your patience and I respect the position that
you're--and the questions that you have and the oversight of
this body, but I'm doing my best to try to, again, follow the
directive I've been given and be cooperative to you.
Chairman Leahy. Let me ask you this.
Ms. Taylor. And I just believe that any discussion of--of
deliberations about, you know, who signed off on what would
clearly fall within those guidelines, Senator.
Chairman Leahy. What about discussions with the Department
of Justice? Did you have any discussions with them--
Ms. Taylor. They--
Chairman Leahy.--or are you going to say that the
Department of Justice is also under executive privilege?
Ms. Taylor. The--the letter that I have, Senator, expressly
states ``internal and external''. And while I understand that
``external'' is a broad word, I can only read that to say that
it is--``external'' would include the Department of Justice.
Chairman Leahy. Did you raise any objections about any of
the U.S. Attorneys included on the list for replacement?
Ms. Taylor. I don't recall ever raising objections about
them being on the list. I--no.
Chairman Leahy. Did you object to any part of the plan?
Ms. Taylor. I don't recall ever objecting to any part of
the plan.
Chairman Leahy. Did you communicate with Karl Rove about
replacing U.S. Attorneys?
Ms. Taylor. Senator, my communications with Karl Rove would
be a clear deliberation and I--
Chairman Leahy. Let me ask you this.
Ms. Taylor. So I don't think that it's--yeah.
Chairman Leahy. Have you talked to any reporters about the
reason for the dismissal of any U.S. Attorney or the
replacements for the dismissed U.S. Attorneys?
Ms. Taylor. I don't--the--OK. The President's letter
clearly says--I'm sorry. Mr. Fielding's letter clearly says
``express communications by--with reporters'' and so I don't
believe I can discuss any conversations I may--
Chairman Leahy. So if you were to discuss something with a
reporter, some would assume to give the White House spin on
this--
Ms. Taylor. Uh-huh.
Chairman Leahy.--this is--even though it's discussed in
public with the reporters--
Ms. Taylor. Yeah.
Chairman Leahy.--this is privileged? Is this a little bit
like Mr. Cheney marking secret talking points for his staff to
give to the reporters?
Ms. Taylor. Senator, I'm not in a position to make an
independent determination about the President's counsel, Mr.
Fielding's, letter to me. I'm just--
Chairman Leahy. So if you give a statement to the press for
something done publicly, that we would assume as Political
Director you'd want to make it in the light most positive to
the White House, and even though that's done publicly and
you're expecting them to follow your spin on what happened,
when you're asked about it anywhere else, it's executive
privilege? It's a very, very broad definition of executive
privilege.
Ms. Taylor. My--my attorney asked to confer with me, if you
would give us a moment, please.
[Witness conferring with attorney.]
Ms. Taylor. My attorney has informed me that he believes
that I--that that question does not fall within Mr. Fielding's
letter, so I apologize for not answering it.
Chairman Leahy. I would--
Ms. Taylor. I don't recall having conversations with
reporters about this. I don't recall it.
Chairman Leahy. I don't know why you didn't just say that
in the first place.
Ms. Taylor. Well, again, because I am trying to be
consistent, because I recognize that the committee--it's not
fair for me to answer the questions I want to answer and answer
the questions I don't want to answer using this, so I'm trying
to be consistent.
Chairman Leahy. I understand that.
Ms. Taylor. And I perhaps have not done a great job of
that, but I have--certainly think that I have tried and think
that I have answered them to the best I can, based on what I
know, based on the letter.
Chairman Leahy. The decision will have to be made by others
whether you answered the questions you wanted to and claimed
executive privilege so you didn't have to answer the ones you
didn't want to.
Senator Specter?
Senator Specter. Thank you, Mr. Chairman.
I am concerned that there may be an effort to pursue a
contempt citation based on what you testified here today. I
said earlier in this proceeding that I thought you were acting
properly in accepting the President's direction, since you
worked for him in the executive branch.
Ms. Taylor. Uh-huh.
Senator Specter. And you might have been on safer legal
ground if you'd said absolutely nothing so you don't get
involved in any of the questions of waiver or if you hadn't
tried to do your best--which I think you have tried to do your
best--to answer what you think is outside of the ambit of the
President's direction, although that's a very hard line to
draw. A very hard line to draw. And I think that would be true
for the most skilled of attorneys who are practitioners in
executive privilege.
I'm going to ask you a few more questions to try to put the
best posture from your point of view if somebody pursues this
question for a potential contempt citation.
You testified earlier today, ``while I may be unable to
answer certain questions today, I will answer those questions
if the courts rule that the committee's need for the
information outweighs the President's assertion of executive
privilege.'' That was your statement.
So my question to you is this: so even where questions that
fall within the President's claim of executive privilege, are
you willing to provide answers to the committee in the future
if the courts find that the committee should get the
information?
Ms. Taylor. Absolutely. I--absolutely. I would have to. I
am under a subpoena.
Senator Specter. And alternatively, if the courts don't
need to rule, that is, if the President and this committee
agree upon a compromise, would you then answer all of the
questions which were directed to you today?
Ms. Taylor. I--I would certainly follow the guidelines
based on any compromise that was agreed upon between this
branch and the executive branch, yes.
Senator Specter. Well, I'm talking about a compromise which
led the President to withdraw a claim of executive privilege.
Ms. Taylor. Yes. Absolutely. Yes.
Senator Specter. So the question is, then, would you answer
all the questions?
Ms. Taylor. Yes. Absolutely.
Senator Specter. OK.
So essentially and succinctly stated, you are willing to
answer all of the questions directed to you today as soon as
the separation of power issue is resolved, correct?
Ms. Taylor. Correct.
Senator Specter. OK.
So you really aren't refusing to answer anything today.
You're agreeing to answer everything that isn't subject to the
executive privilege claim. Correct?
Ms. Taylor. Correct.
Senator Specter. OK.
As to matters that are within the privilege claim, you
aren't refusing to answer those either. It sounds like you are
postponing your answers until there is either a compromise
between the President and this committee or a court ruling as
to whether executive privilege applies. Correct?
Ms. Taylor. That's correct.
Senator Specter. OK. I think that does as much for the
record as you can. You've got a couple of ex-prosecutors here,
Ms. Taylor. Senator Leahy was the D.A. of Burlington and I
was the D.A. of Philadelphia.
Ms. Taylor. Uh-huh.
Senator Specter. We met at a D.A.'s convention 100 years
ago.
[Laughter.]
And have been friends ever since.
I now have a question from Senator Leahy, directed to me.
The question is: is counsel leading the witness? The answer to
his non-leading question is, yes, I am leading the witness.
It's perfectly appropriate.
I think you've done a good job here today. I think we've
found out some things. I again renew my request to the
President to help Senator Leahy, me, and others find a way to
resolve this impasse. You are between a rock and hard place.
There's no way you can come out a winner.
And I don't think any U.S. Attorney anywhere, as the
appointee of the President, is going to bring a criminal
contempt citation. But if this committee asks for one, there
will be a big cloud over you, a big smear that will last the
rest of your life. People don't understand. You use the words
``criminal allegation'', ``criminal charge'' and it sticks. So,
I hope we can come to terms here without subjecting you to any
more travail.
Thank you, Ms. Taylor.
Ms. Taylor. Thank you, Senator.
Senator Specter. Thank you, Mr. Eggleston.
Thank you, Senator Leahy.
Chairman Leahy. Thank you.
Senator Specter--I hope you'll listen to what he said. He's
trying to protect you from a contempt citation. That's a
decision yet to be made. But a decision will be made one way or
the other by this committee.
You said that this has been frustrating, and you're right.
But it's been just as frustrating for those of us who have been
asking the questions as you in answering it.
Now, we understand your personal loyalty to President Bush,
and I appreciate you correcting that your oath was not to the
President, but to the Constitution. But you also have legal
obligations to honor your own to tell the truth, the whole
truth.
Failure to produce documents, and no recalls; those are
very difficult for me to accept as Chairman of this committee.
So we're going to be sending you some written followup
questions and you're going to be given the opportunity to
review the transcript of your answers and you can make or
explain any further corrections you wish to make.
I'm not--as I said at the outset, it was not a game of
``gotcha''. You'll have the transcript. You'll have a chance to
look through it. If you find that an answer you gave was not
accurate, you have time--a limited time, but time--to correct
that or to amplify it.
I do note your answer that you did not discuss these
matters with the President, and to the best of your knowledge
he was not involved. It's going to make some nervous at the
White House, because it seriously undercuts his claim of
executive privilege if he was not involved.
And, of course, the President has made those statements
publicly. He said that these were decisions he did not make.
Actually, other senior officials at the Justice Department said
that under oath; your testimony today under oath bolsters that
impression.
That really shows, again, that the White House counsel's
broad instruction is not only unprecedented, but it's unsound.
I say that because it is unsound and it is unprecedented, as I
said. It does not protect you from a contempt citation.
The broad invocation of the notion of executive privilege
to obstruct Congress from learning the truth leads one to
believe it's part of a cover-up. So I ask, again: what is the
White House so intent in hiding? The President didn't make
these decisions.
Well, then who did, and why did they? Was it Mr. Rove? Was
it, as some of us feel, to corrupt law enforcement for partisan
advantage, which would bother me far more than political
machinations if it's corrupting law enforcement. So we'll
continue our efforts. We'll keep trying.
Thank you, Mr. Eggleston, for being here. And I guess other
attorneys from your office are here. Mr. Eggleston, am I
correct?
Mr. Eggleston. Yes, sir.
Chairman Leahy. And we stand in recess.
[Whereupon, at 1:05 p.m. the hearing was concluded.]
[Questions and answers and submissions for the record
follow.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
PRESERVING PROSECUTORIAL INDEPENDENCE: IS THE DEPARTMENT OF JUSTICE
POLITICIZING THE HIRING AND FIRING OF U.S. ATTORNEYS?--PART VII
----------
THURSDAY, AUGUST 2, 2007
U.S. Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, pursuant to notice, at 10:10 a.m., in
room 226, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Kennedy, Schumer, Durbin, Cardin,
Whitehouse, Specter, and Hatch.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Good morning. Today the committee welcomes
Scott Jennings, who is a Special Assistant to the President. He
is Deputy Director of Political Affairs. He is accompanied by
his attorney, Mark Paoletta, whom the committee has permitted
to be seated with Mr. Jennings at the witness table to provide
him with counsel.
Mr. Jennings, through his attorney, has informed the
committee he will refuse to answer questions falling within the
President's blanket claim of executive privilege. As I have
told Mr. Jennings earlier this morning, I consider that blanket
claim to be unsubstantiated.
I thank Mr. Jennings for appearing today. I told him that I
hoped that he would cooperate and testify to the best of his
knowledge and information. I reiterate that hope; of course,
the choice is his.
His appearance here today, though, does contract with the
failure to appear by Karl Rove, who was also served a subpoena
to produce documents and testify today. Mr. Jennings'
appearance shows that the White House's newly minted claim of
immunity for White House employees is a sham. It also a sham
that this White House continues to act as though it is above
the law. That, of course, is wrong.
The subpoenas authorized by this committee in connection
with this investigation into the mass firings of U.S. Attorneys
and the corrosion of Federal law enforcement by White House
political appointees deserve respect and compliance.
For many months, I have sought the voluntary cooperation of
the White House with our investigation. Even though I have
sought voluntary cooperation, that has been turned down. The
President's counsel have conditioned any limited availability
of information on their demand that whatever the White House
provides initially must end the matter. Instead, the Judiciary
Committee must agree to stop its pursuit of the truth.
They demand that the information they chose to provide be
shared with a limited number of Members of Congress, basically
on their agenda, behind closed doors, not under oath, and with
no record of what the responses were.
It was also made very clear that, no matter what came out
of those meetings at the end of the matter, we have to agree
there will be no followup. No Member of Congress, Republican or
Democratic, would agree to such a thing. This matter is too
important to the public's trust in Federal law enforcement to
be left to a self-serving, one-time-only secret interview from
which there is no followup.
The White House is willing to provide some information
under these secret conditions, but then pressed to do so in a
manner that would allow for follow-up, this information
suddenly became privileged and withheld from Congress. I ask,
how can that be?
How can communications with the Justice Department, the
Republican National Committee, and others outside of the White
House be subject to executive privilege claims? How can White
House employees like Karl Rove speak publicly about these
matters 1 day in a political forum, but declare that he cannot
in any way be accountable to the American people and the duly
elected representatives in Congress on the same matter?
Karl Rove, who refused to comply with Senate subpoenas,
spoke publicly in sessions at Troy University in Alabama and at
the Clinton School of Public Service in Arkansas about the U.S.
Attorney firings when the scandal first became public.
In March he spoke about the reasons that were then being
given for the firings of individual U.S. Attorneys, of course,
reasons that now have been shown to be inaccurate, after-the-
fact fabrications. He does not appear when he is summoned
before Congress to finally tell the truth.
He refuses to tell this committee, with legislative
oversight and advice-and-consent responsibility for the
Department of Justice and the U.S. Attorneys about his role in
targeting well-respected U.S. Attorneys for firing and in
seeking to cover up his role and that of his staff in the
scandal.
As in the Scooter Libby matter, this White House starts by
saying one thing, and when caught in a lie it changes its
talking points, all the while holding itself above the law.
When the firing scandal became public in January, of course
the White House said it was not involved. When the then-Deputy
Attorney General revealed in testimony in February something of
the White House's role in the targeting of Bud Cummins for
firing in Arkansas, that incensed the White House political
operatives.
Mr. Rove's top aide, Sara Taylor, appeared before this
committee last month, but hid behind a White House claim of
executive privilege. I hope Mr. Jennings will not repeat that
error, but will testify truthfully about what he did, what he
knows, and what, in fact, happened.
To date, the White House refuses even to specify that the
documents being withheld pursuant to its claim. Could it be
that there mere listing of the documents and the dates are off,
and recipients will confirm the intimate involvement of
political operatives at the White House?
Sadly, our efforts to follow the evidence where it leads
has been met with Nixonian stonewalling. We are quickly
reaching the point where we are given the claim of executive
privilege. The lawful question is, what did the President know,
and when did he know it? By his claim of executive privilege,
is President Bush now taking responsibility for the firing of
such well-regarded and well-performing U.S. Attorneys?
To date, that has not been the President's position. The
Attorney General's former Chief of Staff, the former Political
Director at the White House, and the Attorney General himself
have testified under oath that they did not talk to the
President about these firings. That is one reason why the White
House blanket claim of executive privilege rings so hollow.
The White House cannot have it both ways, even though they
continue to try to. It cannot block Congress from obtaining the
relevant evidence, and at the same time credibly assert that
nothing improper occurred. It cannot claim executive privilege
based on the President's involvement and need for candid
advice, but then simultaneously contend, well, he was not
involved, that this was done at the Justice Department.
The blanket claim appears to me to be a misdirected effort
by the White House legal team to protect White House political
operatives whose partisan schemes are being discovered in a new
set of White House horrors rivaling those of the Nixon White
House and Watergate era.
There is actually a cloud over this White House and a
gathering storm. Federal prosecutors observe that such a cloud
hangs over the Vice President in the Libby case. A similar
cloud now envelops Mr. Rove and his partisan political team at
the White House as well.
In the course of sentencing Mr. Libby to 30 months in
prison, Judge Walton rightly observed that public servants owe
a duty to the American people. That duty includes a very basic
one of telling the truth.
I believe that duty also includes not corrupting law
enforcement for partisan political gain. Congress will continue
to pursue the truth behind this matter. It is our
constitutional responsibility to do so. But it is also the
right thing to do.
I continue to hope the White House will stop its
stonewalling and accept my offer. Actually, the offer made by
Senator Specter is somewhat different, but still, offers to
negotiate a workable solution to the committee's oversight
needs so we can effectively get to the bottom of what has gone
wrong.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Senator Specter?
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Senator Specter. Thank you, Mr. Chairman.
I pick up on your last statement about working something
out with the White House and coming to an accommodation so that
we do not look at 2 years of protracted litigation for the
courts to decide whether the President is correct on his
exercise of executive privilege or whether the Senate is
correct in its oversight inquiries.
This investigation needs to be completed because I believe
that when the committee finishes this investigation and files a
report, that we may well see the end of the tenure of Attorney
General Gonzales. This is connected with some very critical
matters which are confronting the Congress today, and that
involves the request by the Director of National Intelligence
to have a modification of the Foreign Intelligence Surveillance
Act because of his concerns, and the concerns expressed by the
President in his last week's Saturday broadcast, about a very
imminent threat to the United States from terrorists today.
The Congress cannot adjourn, in my opinion, without
providing that legislative change. But one of the factors which
is involved is that the proposed legislation gives additional
powers to the Attorney General, which is, candidly, very
difficult to do.
A revised draft by the White House would give him, jointly
with the Director of National Intelligence--which may be a
stop-gap, I think it preferable not to have the Attorney
General involved. But I would not stand in the way of this
critical legislation being enacted, even under those limited
circumstances.
But we have an Attorney General who responded yesterday by
saying, on the issue as to whether there was disagreement on
the terrorist surveillance program, that ``I have tried to
provide frank answers.'' I do not believe that is so.
When he said that in his letter, that he may have created
confusion, it is more than that: it is misleading. When the
Attorney General repeatedly said that there was no disagreement
within the administration on the program, as disclosed by the
President, he was telling only a part of the facts, really
playing a cat-and-mouse game with congressional oversight.
I do not believe that there is a perjury prosecution in
this matter, and I think it worthwhile to quote very briefly
from the Supreme Court opinion in Bronston v. United States in
1973: ``The perjury statute is not to be loosely construed, nor
the statute invoked, simply because a wily witness succeeds in
derailing the questioner, so long as the witness speaks the
literal truth, even where the answers were not guileless, but
were shrewdly calculated to evade.''
Well, I think that describes Attorney General Gonzales,
where you have a wily witness who has evaded the information
which this Senate oversight committee was entitled to. Now,
just because it is not perjury does not mean it is the way the
highest-ranking legal officer in the United States ought to
respond to a Senate inquiry, but I think that we really need to
use every effort, picking up on your last statement, Mr.
Chairman, to find a way through.
I said some time ago that I am prepared to give up the
oath. There are potential penalties under U.S. Code, Title 18,
Section 1001. It does not have to be both Houses. It can be a
group from each, the House and the Senate, bipartisan. It does
not have to be public. I'd prefer it public. That's the way the
government functions. But I would agree to a closed session.
I think a transcript is minimal, but I would even be
prepared to give that up. I do agree with the Chairman that we
cannot give up our responsibility to pursue the matter beyond
whatever may occur. I think, Mr. Chairman, that if you and
Chairman Conyers and I sat down beyond Mr. Fielding and asked
the President for a meeting, that we could work it out. We have
had disagreements where we have sat down with the President and
worked it out.
I think, if you, Chairman Conyers, and I, Senator Durbin,
and Senator Cardin were in a room with these witnesses, we
could find out a great deal of information. I certainly think
that's what we ought to do. I think we need to finish this
investigation and find a way to end the tenure of Attorney
General Gonzales so that we are not distracted by these issues
and that we can really move ahead.
The Department of Justice has enormous responsibilities in
so many lines, first and foremost investigating terrorism, and
it is not happening. I talked to Mr. Jennings yesterday. I
appreciated his coming by to see me with counsel. But I know
that he is not going to testify today, and he is between a rock
and a hard place. He has to obey what the President is telling
him to do. But we just have to find a way to work it out, Mr.
Chairman.
Chairman Leahy. In that regard, if I thought that there was
any willingness to work it out instead of a stonewalling, I
would feel a lot better about this. I would point out that--
Senator Specter. Well, Mr. Chairman, why not, let's you and
me and Chairman Conyers ask him for a meeting.
Chairman Leahy. Let's you and I talk about this afterwards.
Senator Specter. I'd be glad to talk about it afterwards.
I'd be glad to talk about it now.
Chairman Leahy. Obviously. You know, the things that we
have heard from the White House, first when we asked for the e-
mails from the RNC, they said, well, we'd be happy to give
those, but they've all been erased. When I suggested, well, you
don't erase e-mails, they went on to say that they had no idea
what I was talking about, because of course you can erase e-
mails, and you do erase e-mails. Well, it turned out they
hadn't erased e-mails. They had all the e-mails. I said, fine.
Isn't that nice? I was right, you were wrong. We have the e-
mails. They said, well, we're still not going to give them to
you. There's been just this total lack of cooperation that's
ongoing.
I know that they're hoping it will drag on for a year, year
and a half. I think contempt citations will go long before
then. But I'll be glad to talk to you about your suggestion,
but I'm not going to do a behind-closed-doors, no-transcript
thing where they determine what the agenda is going to be and
there will be no followup. I mean, this treats the Congress as
though we were members of White House, and neither you nor I
would ever accept that of any White House, Democratic or
Republican.
Jeffrey Scott Jennings has been a Special Assistant to the
President and Deputy Director of Political Affairs at the White
House since 2005. He previously managed President Bush's
campaign in New Mexico in 2004, President Bush's Kentucky
campaign in 2000. He has been a spokesman and Senior Political
Advisor to the Republican Party in Kentucky, a Press Secretary
to Republican officials there, and managed a number of State-
wide campaigns for Republican candidates.
He received a B.A. from the University of Louisville. The
rules of the committee call for him to have submitted a written
statement by 10 a.m. yesterday. That was not submitted on time,
but I will include the statement that we did receive, out of
fairness to you, in the record, or from your lawyer. We'll
allow you a few minutes. But would you please stand and raise
your right hand?
Senator Cardin. Mr. Chairman, before we begin, could I just
ask a question? Karl Rove is supposed to be here, and he's
determined not to be here?
Chairman Leahy. Mr. Rove was supposed to be here and he
basically has taken what I consider a bogus claim of executive
privilege and has failed to show. We will treat that at another
meeting.
[Whereupon, the witness was duly sworn.]
Chairman Leahy. Please be seated.
Do you wish to give a brief summary of your statement?
STATEMENT OF J. SCOTT JENNINGS, DEPUTY DIRECTOR, OFFICE OF
POLITICAL AFFAIRS, THE WHITE HOUSE, WASHINGTON, D.C.
Mr. Jennings. Thank you, Senator, I do. And I apologize for
having a statement turned in a bit late yesterday.
Chairman Leahy, Senator Specter, other members of the
Senate Judiciary Committee, my name is Scott Jennings. I am
accompanied by my personal attorney, Mark Paoletta of Dickstein
Shapiro, and Emmett Flood, who is Special Counsel to the
President. Emmett is representing me in my official capacity.
Since October of 2005, I have served as Special Assistant
to the President and Deputy Director of the Office of Political
Affairs at the White House, a position that I currently hold.
It has been an honor to serve my country and the President, for
whom I have great respect, and I will forever be grateful for
this opportunity.
As I sit here today--
Chairman Leahy. Excuse me. Mr. Jennings, are you now
reading the statement that we said you would not read, or what
are you doing?
Mr. Jennings. No, sir. I--
Chairman Leahy. Just a summary?
Mr. Jennings. Yes, sir.
Chairman Leahy. OK. Go ahead.
Mr. Jennings. It's rather short. Thank you.
As I sit here today, I find myself, at the age of 29,
caught in the middle of a constitutional struggle between two
branches of government, quite literally between, as Senator
Specter said, a rock and a hard place. On the one hand, I am
appearing before this committee pursuant to subpoena that
compels me to answer questions concerning the dismissal and
replacement of U.S. Attorneys.
On the other hand, I have received a letter from the White
House counsel asserting the President's claim of executive
privilege over the very subject matter of the committee's
subpoena. The White House's Counsel's letter, which I have
attached to my written testimony, directs me not to testify or
produce documents concerning White House consideration,
deliberations, or communications, whether internal or external,
relating to the possible dismissal or appointment of U.S.
Attorneys, including consideration of possible responses to
congressional and media inquiries on the U.S. Attorneys matter.
Please understand, Senators, that I have the utmost respect
for this committee, and a contempt citation is not something
that I take lightly. To the contrary. If a court ultimately
determines that Congress' need for the information outweighs
the President's assertion of executive privilege, I would
welcome the opportunity to answer your questions on the U.S.
Attorneys matter. Until that time, however, I am compelled to
abide by the President's directive, particularly given my
status as a current White House employee.
In light of these considerations, as well as a desire to be
as consistent as possible and avoid even the appearance of
selectively answering questions, I will be unable at this time
to answer any questions concerning White House consideration,
deliberations, or communications related to the U.S. Attorneys
matter, regardless of whether specific documents or
conversations may already have been discussed publicly by
others. To do otherwise would directly violate the President's
order.
I recognize that this decision may not sit well with some
members of this committee. For that, I am truly sorry. Please
know that it is every bit as frustrating for me as it is for
you. But given the larger constitutional issues at stake, I am
simply not in a position to defy the President's claim of
privilege. I hope that you can appreciate the difficulty of my
situation. It makes Odysseus' voyage between Scilla and
Charybdis seem like a pleasure cruise.
In conclusion, I will attempt today to answer your
questions to the best of my ability within the parameters of
the President's directive. However, to the extent that there
are questions that I am unable to answer, I would like to
reiterate, I am willing to abide by the ultimate resolution of
this issue. I commit to you that I will answer such questions
at a later date if the White House and the committee reach an
agreement that permits me to do so, or if a court rules that
the committee is entitled to the information.
Thank you, sir.
Chairman Leahy. Mr. Jennings, we will disagree on one
thing. I believe you and others at the White House who have
refused to answer questions could answer questions if you
wanted to.
Now, a recent report by the House Committee on Government
Oversight Reform documents extensive use by White House
officials and non-governmental Republican National Committee e-
mail accounts for official purposes, such as communicating with
Federal agencies about Federal appointments and policies.
You're aware of that, are you not?
Mr. Jennings. Yes, sir.
Chairman Leahy. I give you a copy of a document numbered
OAG-112-113. This is a June 20, 2006 e-mail exchange between
you and Monica Goodling. Are you familiar with that document?
Mr. Jennings. I've seen this document.
Chairman Leahy. And that's what it is, an e-mail exchange
between you and Monica Goodling?
Mr. Jennings. It is an e-mail.
Chairman Leahy. Mr. Jennings, I'm not here to play games.
I'm trying to be fair with you. Is this an e-mail exchange
between you and Monica Goodling?
Mr. Jennings. Yes, sir.
Chairman Leahy. Thank you.
Now, the second-to-last e-mail in the string is an e-mail
to Ms. Goodling from an e-mail address, [email protected]. Is
that your Republican National Committee e-mail address?
Mr. Jennings. It was an e-mail address, and that particular
e-mail address was ascribed to me in the past. It's no longer
my Republican National Committee e-mail address.
Chairman Leahy. Do you have a Republican National Committee
e-mail address now?
Mr. Jennings. Yes, sir.
Chairman Leahy. And what is that?
Mr. Jennings. It is [email protected].
Chairman Leahy. Why do you no longer have the other one?
Mr. Jennings. Sir, after the e-mail address that is on this
page was published in various places on the Internet and other
places, I received a significant amount of junk, spam, and
otherwise what might be considered as ``hate'' e-mail. And so
for those reasons it was becoming overloaded, and we determined
to change it so I wouldn't have to deal with that.
Chairman Leahy. OK. At the bottom of the e-mail you have a
signature. It says ``J.Scott Jennings, Special Assistant to the
President, Deputy Political Director, The White House,'' e-mail
address listing your signature with your official White House
title as [email protected]. Is that correct?
Mr. Jennings. Yes, sir.
Chairman Leahy. How frequently did you use this e-mail
address?
Mr. Jennings. It--I believe I've seen published accounts
that have several thousand e-mails on an active server at the
RNC, so it's fair to say that I used it daily.
Chairman Leahy. And would the thousands it referred to,
would you think those are correct?
Mr. Jennings. Yes, sir. I have no reason to believe it's
not.
Chairman Leahy. The report said that they had received over
35,000 e-mails in which you are a part. Does that seem out of
line?
Mr. Jennings. I think that the number is probably accurate.
I think that if you look at it in context, much of the e-mail
that I received was of a bulk nature, press clippings, news
releases, and other junk e-mail. So I think that while it's a
little inflated, I have no reason to believe the number is not
accurate.
Chairman Leahy. Why did you send these e-mails setting up a
conference call regarding Tim Griffin, later installed by the
Attorney General as an Interim U.S. Attorney to replace Bud
Cummins in the Eastern District of Arkansas? Why did you send
them from your RNC mail account?
Mr. Jennings. Senator, pursuant to the President's
assertion of executive privilege over consideration,
deliberations or communications related to the U.S. Attorneys
matter, I must respectfully decline to answer your questions at
this time.
Chairman Leahy. That's sort of a new way of taking the
Fifth. But let me ask you this. You're--this is not--I'm not
asking you about something where you communicated with the
President. This is a Republican National Committee e-mail. I'm
asking you why--not what you said or anything, but why did you
use this?
Mr. Jennings. May I have a moment, Senator, to confer?
Chairman Leahy. Of course. Confer with your attorney.
[Pause].
Mr. Jennings. I understand your question, Senator. I
apologize. I want to answer it. I think it might be helpful
to--
Chairman Leahy. I thought you might. Go ahead.
Mr. Jennings. Yes, sir. I think it might be helpful to give
a little context about the use of the e-mail accounts. I have--
I came to the White House, as you said, in 2005. When I came, I
was given two e-mail account, as you know, and devices such as
a BlackBerry and a laptop that were connected to my RNC e-mail
account, and only one device, a computer desktop, connected to
my official account. So over the course of time, it became
efficient and crucial for me to be able to respond to
communications in a 24/7 manner.
Chairman Leahy. Here, we're talking about official business
regarding Tim Griffin, later installed by the Attorney General
as Interim U.S. Attorney replacing another U.S. Attorney. Why
would you use a Republican National Committee account rather
than your official account? Wouldn't this be official business?
Mr. Jennings. Senator, I understand your question. I would
also like to say that it's my understanding that, out of an
abundance of caution and to avoid possible Hatch Act
violations, that's why we were issued these accounts. And over
the course of time--
Chairman Leahy. Do you feel this was a Hatch Act violation,
setting up this kind of a meeting?
Mr. Jennings. No, sir.
Chairman Leahy. Then why did you use it?
Mr. Jennings. As I said, Senator, I would like to give some
context about the e-mail accounts. Over the course of time, the
use of the Republican National Committee e-mail account became
a matter of convenience and efficiency because I had access to
it 24 hours a day, 7 days a week, unlike my other e-mail
account. And so--
Chairman Leahy. Were there other--were there other
occasions in which you used an RNC e-mail account in connection
with the development of plans to replace U.S. Attorneys or the
implementation of these plans, or even the explanation of these
plans?
Mr. Jennings. Can you repeat the question, sir?
Chairman Leahy. Were there other occasions in which you
used an RNC e-mail account in connection with the development
of plans to replace U.S. Attorneys?
Mr. Jennings. Senator, I used my RNC account for many
matters, including that.
Chairman Leahy. Since the 2004 election, did you speak with
President Bush about replacing U.S. Attorneys?
Mr. Jennings. Senator, pursuant to the President's
assertion of executive privilege, I must respectfully decline
to answer your question at this time.
Chairman Leahy. I'm not asking you what was said. Did you
speak with him about these at all?
Mr. Jennings. Senator, I understand. I've been--
Chairman Leahy. Did you attend any meeting with the
President since the 2004 election in which the removal and
replacement of U.S. Attorneys was discussed?
Mr. Jennings. Senator, pursuant to the President's
assertion of executive privilege, I must respectfully decline
to answer your question at this time.
Chairman Leahy. Are you aware of any Presidential decision
documents since the 2004 election in which President Bush
decided to proceed with the replacement plan for U.S.
Attorneys?
Mr. Jennings. Senator, pursuant to the President's
assertion of executive privilege, I must respectfully decline
to answer at this time.
Chairman Leahy. As Special Assistant to the President and
Deputy Director of Political Affairs, what role do you have in
the selection of nominees to be U.S. Attorneys?
Mr. Jennings. Senator, I will decline to answer that
question pursuant to the President's assertion of executive
privilege.
Chairman Leahy. Whoa. Whoa. Whoa. Wait a minute. I'm just
asking you what role you have in the selection of nominees to
be U.S. Attorneys. I'm just talking about what you do. Now, I
mean, let's not be too contentious in this committee. I'm just
asking you, what role do you have in the selection of nominees
to be U.S. Attorneys? You work at the White House. You're paid
for by taxpayers. You work for the American people. I'm just
asking you what kind of work you do.
Mr. Jennings. Sir, I understand. And based on my
understanding of the letter I have from Mr. Fielding, this
falls under the President's assertion of executive privilege,
and therefore I must respectfully decline to answer at this
time.
Chairman Leahy. Sounds to me like the American taxpayers
are paying you to stonewall.
My time is up. I will yield to Senator Specter.
Senator Specter. Thank you, Mr. Chairman.
Mr. Jennings, if the Senate and the President are able to
come to an accommodation as to the range of our inquiry, would
you be willing to appear and testify fully before this
committee if there is no instruction by the President for you
to refrain from testifying?
Mr. Jennings. Yes, Senator. If an accommodation is reached,
I will welcome that opportunity.
Senator Specter. When you are deciding what e-mail account
to use, there are certain requirements that governmental
records be maintained and there are also requirements to not
use Federal equipment for political purposes. Is that correct?
Mr. Jennings. Yes, sir.
Senator Specter. And what you have to do is make a judgment
as to whether it is essentially political or whether it is
essentially governmental in a judgment as to what e-mail
equipment you use?
Mr. Jennings. Yes. A judgment has to be made, and often a
judgment has to be made in the midst of very chaotic days.
Senator Specter. In the midst of very chaotic situations?
Mr. Jennings. Days. You know, with multiple incoming e-
mails on both accounts and dealing with matters, it is--
sometimes it's snap decisions that have to be made.
Senator Specter. Are you representing to this committee
that you're a busy man?
Mr. Jennings. Sir, I would not represent to this committee
that I am busier than anyone on this committee, but I am busy.
Senator Specter. Now answer my question.
Mr. Jennings. Yes, sir. I am busy.
Senator Specter. OK.
And in general, what standards do you use in a judgment as
to which e-mail account you ought to use?
Mr. Jennings. May I have a moment, Senator? Thank you.
Senator Specter. I thought that was a pretty easy question,
Mr. Jennings.
[Pause]
Mr. Jennings. Right. I think, Senator, I'd like to explain
how the e-mail account became sort of a default e-mail account
on occasion. Having access to it--you know, they--they describe
us, in the Executive Office of the President, on occasion as
being 24/7 employees. And I frequently need access to
communications 24 hours a day, 7 days a week.
And when I arrived and only found myself with access to one
of the e-mail accounts for, you know, 24/7, it, over the course
of time, became a default e-mail account. People knew they
could reach me at any time, not just when I happened to be
sitting at my desk, which some days is infrequent. So it became
a default e-mail account and we used it a lot, and I would
submit that we were using it out of the interest of being
efficient and responsive in our job duties.
Senator Specter. Mr. Jennings, approximately how much time
have you spent in the last week on the issue of your appearance
before this committee?
Mr. Jennings. I've spent several hours with my counsel.
Senator Specter. Have you spent time on the matter other
than with your counsel?
Mr. Jennings. Do you mean with other individuals, or--
Senator Specter. Well, I'm trying to get an idea as to how
distracting this matter is from your regular duties.
Mr. Jennings. I would describe it as--
Senator Specter. Describe that in your own way, the amount
of time you spend. Are you worried about this matter?
Mr. Jennings. Yes, sir. I--I am concerned about this
matter. I think my wife--
Senator Specter. When you came to see me yesterday you
looked like you were very concerned about it: you brought three
lawyers with you.
Mr. Jennings. Yeah. Yeah. My wife is concerned, my lawyers
are concerned, my parents are concerned. It's fair to say,
concern has been introduced into my life here. Very concerned.
Senator Specter. Have you talked about it extensively with
your parents?
Mr. Jennings. I've communicated with my parents on it.
They've asked me questions about, you know, what is happening.
I've tried to--you know--
Senator Specter. Are they worried that you've done
something wrong?
Mr. Jennings. I don't think I would describe it as being
worried that I've done something wrong. I think we're all--
Senator Specter. Or they're worried that people might think
you've done something wrong?
Mr. Jennings. I think that's correct. Yes, Senator.
Senator Specter. Has anybody talked to you about a criminal
contempt citation?
Mr. Jennings. I've had discussions on it.
Senator Specter. Do you think that if there's a criminal
contempt citation brought against you, that somebody might
think there's reason to believe you've done something that's
criminal?
Mr. Jennings. I think that's a fair assessment. Yes, sir.
Senator Specter. And you'd prefer not to have that happen?
Mr. Jennings. Yes, sir.
Senator Specter. And how about the other people in the
White House whom you work with. To what extent has this
investigation been distracting to them?
Mr. Jennings. I wouldn't want to speak for them, Senator.
But I can only assume, if they've experienced the same level of
distraction, that they would describe it as being distracting.
Senator Specter. Well, aside from what you assume, what
have you observed?
Mr. Jennings. Well, I've observed the White House Counsel's
Office certainly working on it, and so they're certainly, I
think, distracted with these sorts of issues. But it's their--
obviously it's their job to deal with them.
Senator Specter. Does it appear that there are people in
the White House today working on legislation which would
provide an expansion for the Foreign Intelligence Surveillance
Act to enable our intelligence agencies to gather information
which is transmitted overseas from one caller to a recipient
overseas?
Mr. Jennings. I'm aware of it. Yes, sir.
Senator Specter. Are you aware that there is a heightened
sense of security need and a concern that Al Qaeda may be
threatening the United States again at this time with a high-
level alert?
Mr. Jennings. Yes, sir.
Senator Specter. And people in the White House are working
on that?
Mr. Jennings. I am aware of it. Yes, sir.
Senator Specter. And could they better spend their time
worrying about that than about your potential criminal
citation?
Mr. Jennings. I think, yes, any time spent working on
protecting America from an attack from Al Qaeda is much better
spent on that than on my--that on my criminal contempt
citation.
Senator Specter. Well, then I'm not going to take up all my
time. I'm going to let you go early.
Thank you, Mr. Chairman.
Chairman Leahy. Of course, they could very easily just say
``answer the questions'' and it would take a lot less time than
continuing to stonewall.
Going by the order of appearance, it's Senator Durbin.
Senator Durbin. Thank you very much, Mr. Chairman, and
thank you, Mr. Jennings, for being here today.
When I read your political resume, I see a very young man,
21, 22 years old, first involved in a Presidential campaign in
Kentucky, then moving up through the ranks through a number of
campaigns. At the ripe age of 29, you've had a lot of political
experience under your belt and have reached really kind of the
height of the game to be in the White House in this political
capacity, and I salute you for that, as I did
Ms. Taylor.
Our political parties are sustained by young, energetic,
idealistic people like you who work for people who have been
around a lot longer. I first met Karl Rove 37 years ago and he
was about your age when you got started. I have known his
political ascent, and he is now at the highest levels.
And what I struggle with every time Karl Rove feeds another
one of these young staffers into the Judiciary Committee is the
obvious question: where is Karl Rove? Why is he hiding? Why
does he throw a young staffer like you into the line of fire
while he hides behind the White House curtains?
I just have to ask you, what is your day-to-day
relationship with Karl Rove and the White House?
Mr. Jennings. My duties in the White House as Special
Assistant, report up to the Deputy Assistant to the President
and political director, and ultimately we both report up to Mr.
Rove, who is Assistant to the President and Deputy Chief of
Staff and Senior Advisor.
Senator Durbin. So how frequently during the course of a
day or a week would you have conversations or e-mails with Karl
Rove?
Mr. Jennings. Daily.
Senator Durbin. On a daily basis?
Mr. Jennings. Yes, sir.
Senator Durbin. More than once a day?
Mr. Jennings. Yes, sir.
Senator Durbin. So would you say it's a close working
relationship?
Mr. Jennings. Yes, sir.
Senator Durbin. All right.
Let me ask you a couple things. First, did you read Sara
Taylor's testimony before this committee?
Mr. Jennings. I watched it, and then read a follow-up. Yes,
sir.
Senator Durbin. Do you know that Senator Leahy asked her
the same questions that he asked of you? Specifically, Senator
Leahy asked her if she'd spoken to the President about removing
U.S. Attorneys and she answered, ``I did not speak to the
President about removing U.S. Attorneys.''
Chairman Leahy then asked her if she attended any meeting
with the President since the 2004 election in which the removal
and replacement of U.S. Attorneys was discussed. Ms. Taylor
answered, ``I did not attend any meetings with the President
where that matter was discussed.''
I'm struggling to understand how she could read the same
Fielding memo that you and your attorneys have read and respond
to those questions, and you would refuse to respond. Can you
explain to me what the difference is in the questions asked by
Chairman Leahy?
Mr. Jennings. I know that Ms. Taylor answered the
questions. I read the transcript. And I respect her decision.
And I also know that several members of the committee
criticized her for, in an interview, cherry picking or
selectively answering questions during the hearing.
In fact, I noted that when Ms. Taylor initially refused to
answer a question, Senator Specter stated, ``I think your
declining to answer the last series of questions from the
Chairman was correct under the direction from the White House
counsel.
I do believe, when you were asked whether you had a
conversation with the President, that even though it does not
go to the issue of content of the conversation, that it comes
under the interdiction of White House counsel, which I agree
that you are compelled to follow at this stage, having been an
employee.''
Sara is a former employee. I am a current employee. I
simply do not intend to disobey a directive from the President.
Senator Durbin. Well, Sara Taylor was much more forthcoming
and I thought, frankly, that at the end of the day, people
respected her for it. She went as far as she could go without
going into the substance of conversations to at least
acknowledge whether or not conversations had taken place or
meetings had taken place, and I think that's the nature of
Chairman Leahy's question.
Let me ask you specifically about New Mexico. In the 2004
election, you were working for the President's re-election
campaign in the State of New Mexico. Is that correct?
Mr. Jennings. Yes, sir.
Senator Durbin. And were you in contact, in that capacity,
with Monica Goodling at the Department of Justice?
Mr. Jennings. No, not that I recall.
Senator Durbin. Did you ever meet with David Iglesias, the
U.S. Attorney in New Mexico during that campaign?
Mr. Jennings. Not that I recall.
Senator Durbin. Were you aware of any conversations by
Members of Congress or members of the White House staff with
Mr. Iglesias about the conduct of his office in New Mexico?
Mr. Jennings. Could you repeat the question? I'm sorry.
Senator Durbin. Are you aware of any contacts by Members of
Congress or members of the White House with Mr. Iglesias about
his conduct as U.S. Attorney in the State of New Mexico during
that period?
Mr. Jennings. May I have a moment to confer? Thank you.
[Pause].
Mr. Jennings. Senator, may I ask, as you asking me in my
capacity as a staff member on the Bush-Cheney campaign if I was
aware? No, I'm not aware of any conversations that were taking
place.
Senator Durbin. Did you ever send an e-mail to Monica
Goodling relative to the situation in New Mexico involving the
U.S. Attorney?
Mr. Jennings. Are you asking me, specifically in 2004?
Senator Durbin. Subsequent to that or during--let's first
ask, during the 2004 campaign.
Mr. Jennings. I don't have any recollection of doing that,
no.
Senator Durbin. All right.
Did you have any e-mail conversations or exchanges with
Monica Goodling about New Mexico politics after that campaign?
Mr. Jennings. Senator, pursuant to the President's
assertion I must respectfully decline to answer that question
at this time.
Senator Durbin. I want to make it clear that I'm not asking
you about the U.S. Attorney's Office, now. I'm asking whether
you had contact with Monica Goodling relative to the State of
New Mexico after the 2004 election.
Mr. Jennings. Give me just one moment. Thank you.
[Pause].
Mr. Jennings. I don't recall any. I'll answer your
question, Senator. Thank you for the time. I don't recall any
specific conversations that we had. We--we may have discussed
New Mexico politics, but I--I don't have any recollection of
anything specific at this time.
Senator Durbin. I have a copy of an e-mail between you and
Monica Goodling, and I don't want this to be a surprise. I
don't know if we have a copy to share with you. I think this
was disclosed by the Justice Department.
Mr. Jennings. OK.
Senator Durbin. And it's relative to an e-mail exchange in
June of 2006 between Monica Goodling and yourself. Do you
remember that exchange?
Mr. Jennings. Can I--can I see a copy of it, Senator?
[Pause].
Chairman Leahy. I think this is the document you've already
been handed.
Mr. Jennings. Oh.
Senator Durbin. I want to make sure that you get a chance
to read it. I don't want this--
Mr. Jennings. Oh. Yes, sir.
Senator Durbin. Are you familiar with it?
Mr. Jennings. Yes, sir.
Senator Durbin. Can you explain the nature of that exchange
between you and Monica Goodling?
Mr. Jennings. Senator, I think, pursuant to the President's
assertion of executive privilege, I have to respectfully
decline to answer your question at this time.
Senator Durbin. Well, I just want to say for the record
that this is an exchange and it's--the subject matter from
Monica Goodling to you is in relation to a U.S. Attorney's
meeting, and it relates to the State of New Mexico. And though
you won't respond to it, you have produced a document which
certainly raises a question about the relationship between you
and Monica Goodling, who worked at--if I'm not mistaken, she
was the liaison to the White House Liaison from the Department
of Justice. Is that correct?
Mr. Jennings. Yes, sir.
Senator Durbin. All right.
I'd like to ask you--it looks like I'm over my time now.
Thank you very much, Mr. Jennings.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much, Senator.
Senator Hatch?
Senator Hatch. Well, thank you, Mr. Chairman.
Mr. Jennings, under the current circumstances I'm not sure
what it means to welcome you to the Senate Judiciary Committee,
but you should not be in the position you're in today, between
a rock and a hard place, as you described it in your statement.
You made it clear that you're willing to talk about these
issues under the right circumstances. The President has offered
you, offered Karl Rove under certain circumstances, which is
more than I think the President should have done.
I believe you, Mr. Jennings, and I wish these circumstances
had been allowed to exist so you could do just that and we
would all know just exactly what we want to know. The Senate
should not be in this position. We're in this position
involving a clash between congressional subpoena and executive
privilege because my Democratic colleagues have put us in this
position.
They chose from the beginning to ignore the separation of
powers that gives authority to remove U.S. Attorneys to the
President. It's a plenary power. The President has the right to
remove them for whatever reason. And although this was poorly
handled, and I think everybody can agree with that, including
the White House, the fact of the matter is, the President does
not have to state reasons. They can be for any reasons,
including political reasons.
They chose to insist that the President's reasons for
exercising the President's own authority must somehow satisfy
Democratic Senators. They chose to insist that the executive
branch's internal communication and decisionmaking about
exercising the executive branch's own authority is somehow a
legitimate subject of congressional oversight, and that's what
this is about.
They chose to make demands that they knew the executive
branch would resist, demands my Democratic colleagues would
resist just as fully if the roles were reversed. They chose to
ask questions they know witnesses cannot answer, and then they
yell about a cover-up.
They chose to cast mistakes or mishandling first as
inconsistencies, then as improprieties, and then even as
illegalities, which nobody's been able to show in all of the
thousands of documents that have been given up here, all of the
seven or more hearings we've held here, the hearings over in
the House.
They chose to drag this process on for nearly 9 months, now
pulling it from the political into the legal arena. They chose
to do all of that, and those choices are why we are in this
position today, and why you are in this position today.
Now, I personally wish they had made other choices. I wish
that they had followed another course. I think we would be way
ahead of the game had we done so, and we know exactly what
people have said. Now, it would be incorrect to say that my
Democratic colleagues have absolutely nothing to show for their
efforts.
Congress said that allowing the U.S. Attorney alone to
appoint interim U.S. Attorneys could avoid Senate confirmation,
so we replaced that mechanism with allowing the U.S. Attorney
and a District Court judge to appoint interim U.S. Attorneys,
which equally can avoid Senate confirmation.
But in addition to that legislative triumph, there is the
trashing of reputations and undermining of careers of
hardworking career or public servants and the misleading of the
American public about the proper relationship between the
legislative and executive branches. And, of course, there is
the enormous and growing expense of this fishing expedition.
Every time that net comes up empty, and it has always come
up empty, my Democratic colleagues say they just know, deep
within their souls, in their bosom, that the fish are there.
They just need one more cast of the net, they just need a
bigger net, they just need to go deeper into the political
ocean or a step higher on the political food chain.
Is it any wonder that the American people's disapproval of
our job performance has gone steadily higher as this fairy tale
has continued, from 52 percent in January and February, 56
percent in March and April, 60 percent in May and June, and 65
percent today. In fact, some think that we--some polls actually
show that we are in less disfavor than the President of the
United States, who is consistently being, you know, criticized
for being low in the polls. Now that, to me, is not a very good
record of accomplishment.
So Mr. Jennings, I do not want to add to your untenable
discomfort by asking questions, at least under the current
circumstances, I know you cannot answer. I just wanted to come
here today to thank you for your service to the President of
the United States, and the American people as well. I want to
thank you for your sincere desire to cooperate with this
committee under the right circumstances.
My Democratic colleagues have chosen not to let those
circumstances exist. I have suggested that we should have done
what the President offered a long time ago. Yes, it's not under
oath. It's not in front of the public at large. It's not a
perfect way of doing it, but it certainly would get us to the
bottom of whatever questions they want to ask from top advisors
in the White House who cannot be permitted to come and--
Chairman Leahy. Would the Senator yield on that? Was he
aware that in the offer they said they would set the agenda?
They would also limit what questions could be asked. So, we
would be getting not to the bottom of it at all.
Senator Hatch. I personally believe, once that happens,
once that is started, you'd be able to ask any questions you
want to. Now, there undoubtedly are still certain rights that
we have all fought for on this committee.
Now, let me just say, it was just a short while ago when we
had--when something occurred on this committee that was
abysmal. We had a staffer on the then Majority--I was
Chairman--who somehow or other got into the personal
communications between Senators and their staffers. Not
necessarily top staffers, but let's limit it to top staffers,
which is what seems to be involved here, the President's top
staffers.
And it was a terrible situation. I immediately announced
it, exposed it. We immediately shut down the servers. We
immediately got people in to resolve it. And let me just
finish, because my time is up. It went so far as to have the
U.S. Attorney have the FBI investigate.
They wanted to get the servers and to go through the whole
process and get those memoranda that were, in my opinion,
wrongfully taken. And, of course, our colleagues on the other
side--and I don't blame them for this. I agree with them and
protected them on this--did not want their internal, private
memoranda disclosed to the public, or disclosed to the court,
or disclosed to the U.S. Attorney, or disclosed to the FBI and
that was the end of the investigation.
Now, that's what's involved here. I think we all have to
understand that the President has certain rights, that there
are certain executive privileges that do exist, especially so
that the President can preserve the right of his office to not
be exposed to improper interrogations of his top advisors, any
more than we in the Senate would like our private memoranda
exposed as well.
Well, I've used up too much of my time. Thank you very
much, Mr. Chairman.
Chairman Leahy. No. But I'm sure that Mr. Jennings
appreciated having you on his side all the way through this.
Senator Hatch. He deserves having me on his side.
Chairman Leahy. No. The American people deserve to have him
tell the truth, and the whole truth, and nothing but the truth.
Senator Hatch. And he has.
Chairman Leahy. Senator Kennedy?
Senator Kennedy. Thank you, Mr. Chairman. Welcome, Mr.
Jennings.
A common theme throughout the hearings has been the
corruption of professional standards through partisan behavior.
It's clear the administration has really pursued the partisan
interests at the expense of professionalism to an unprecedented
degree.
To prevent this kind of--type of behavior, Congress long
ago enacted the Hatch Act which prohibited Federal employees
from using their official authority or influence for the
purpose of interfering with, or affecting the result of, an
election.
According to the press reports, the Office of Special
Counsel found a sufficient amount of evidence to investigate
possible White House violations of the Hatch Act, and part of
this investigation involves the presentation you gave at GSA
Headquarters, with the permission of the head of GSA, when she
asked the attendees how they could help our candidates. May 16,
Doan was notified that she had violated the Hatch Act. Six GSA
employees have provided information about your GSA
presentation.
So could you tell us how many such political briefings have
you conducted for executive agencies and Federal employees
during your service in the White House?
Mr. Jennings. Senator, I don't know an exact number, but I
think it's roughly 10, or a few more perhaps.
Senator Kennedy. Can you provide us the information where
they--
Mr. Jennings. Yes, sir.
Senator Kennedy. Did you conduct two briefings at USAID
last fall?
Mr. Jennings. I remember conducting one briefing at USAID
last fall.
Senator Kennedy. OK. And what was the purpose of the
briefing?
Mr. Jennings. The purpose of the political briefing was to
thank political appointees for their service. It's a morale-
boosting tool, and they're informative to them.
Senator Kennedy. Do you create the substance of these
briefings, you, yourself? Do you create all of the material?
Mr. Jennings. Senator, may I have a moment to confer? Thank
you.
[Pause].
Mr. Jennings. The content of the briefing, Senator, is not
typically produced by me. No, sir.
Senator Kennedy. Can you tell us who else is involved in
those projects?
Mr. Jennings. The White House Political Director is
typically involved in those projects.
Senator Kennedy. Who, in particular?
Mr. Jennings. During my service, Ms. Sara Taylor.
Senator Kennedy. Anyone else?
Mr. Jennings. There may be other staffers at the White
House involved in the back-and-forth discussions.
Senator Kennedy. Mr. Rove involved in any of those
meetings?
Mr. Jennings. I don't have any specific recollecting of
seeing Mr. Rove, but I'm not sure I can answer your question
based on what I currently know.
Senator Kennedy. Were you aware of the Hatch Act
prohibitions against political activity?
Mr. Jennings. Yes, sir. I'm aware of the Hatch Act.
Senator Kennedy. Did you ever question whether this type of
briefing violated the Act's prohibitions?
Mr. Jennings. It's my understanding that this kind of
briefing has been occurring for several years and across many
administrations, and that many people had decided it does not
violate the Hatch Act.
Senator Kennedy. Well, you asked--did you ask someone for
guidance then whether this violated the Hatch Act or did not?
Do you know?
Mr. Jennings. I didn't specifically ask someone whether--
Senator Kennedy. Did anybody tell you it didn't? Did
anybody tell you you could do it?
Mr. Jennings. May I have a moment?
Senator Kennedy. Sure.
[Pause].
Senator Kennedy. Mr. Chairman, I'd ask that this time not
be charged against me.
Chairman Leahy. I am--Senators have suggested--I've done
this for both Republicans and Democrats when Mr. Jennings is
consulting. We've told him he can consult with his attorney,
but that time--we're giving additional time to the Senators so
that that time will not--
Senator Kennedy. I don't intend to take any significant
time, Mr. Chairman.
What was your answer?
Mr. Jennings. Senator, regarding the briefings themselves,
it's my understanding that in many cases they are cleared by
the White House counsel and I think that's--my understanding is
it's a regular practice.
Senator Kennedy. Well, part of the investigation into this
involves a presentation you gave at GSA Headquarters with the
permission of the head of GSA when she asked the attendees
``how they could help our candidates''. How they could help our
candidates. What's your--what do you feel? Do you feel that
that is any--how we help our political candidates. Do you think
that goes over the line?
Mr. Jennings. I think that there is a--as I understand it,
the Office of Special Counsel has submitted a report to the
President based on his investigation. There is a pending
Presidential decision. I'm not sure it would be appropriate for
me to comment on a pending Presidential decision based on his
investigation.
Senator Kennedy. Well, what do you--you don't--this kind of
activity is outside of the executive privilege that Mr.
Fielding has sent, this kind of activity, so you ought to be
able to respond to these questions.
Mr. Jennings. OK. Can you--can you give me just one moment?
I apologize.
Senator Kennedy. OK.
[Pause].
Mr. Jennings. Senator, perhaps it would be helpful for me
to tell you what I told the Special Counsel when he
investigated this matter earlier this year, which is, I simply
don't recall Ms. Doan making the comment she is alleged to have
made at the time. I know others testified that they did. I
simply didn't recall it.
Senator Kennedy. All right.
Well, let me ask you, did you advise attendees in how to
elect Republican candidates and advance Republican issues?
Mr. Jennings. No, sir.
Senator Kennedy. And did you discuss specific candidates?
Mr. Jennings. Specific candidates may have been discussed
in the context of forecasting the political landscape of the
next cycle.
Senator Kennedy. And you discussed congressional districts?
Mr. Jennings. Some congressional districts may have been
discussed. Yes, sir.
Senator Kennedy. And you don't know whether those
candidates you discussed were Republicans?
Mr. Jennings. I know that both Republicans and Democrats
may have come up in the meeting.
Senator Kennedy. As the Deputy Director, did you ever seek
clearance for these briefings?
Mr. Jennings. As the Deputy Director, I knew that the
Director had come up with a process to seek clearance for the
briefings.
Senator Kennedy. Have you had similar exchanges at other
briefings in Federal buildings?
Mr. Jennings. Similar exchanges?
Senator Kennedy. Yes. Briefings in Federal buildings. I
guess--I think earlier in the response you said you had, you
thought, 10 or 12 of the different briefings. Did they take
place all in Federal buildings?
Mr. Jennings. Some took place in agency buildings and some
took place in the Executive Office Building.
Senator Kennedy. Did you, as a former--and I'll just wind
up, Mr. Chairman. You've been--as a former State campaign
manager for President Bush and a number of Republican
candidates, did you ever feel your briefings would help
Republican candidates?
Mr. Jennings. I felt my briefings would help boost the
morale of appointees and serve to thank them for their service
to the President, and give them information about the political
landscape and what they were--in which they were trying to
enact the President's agenda.
Senator Kennedy. What real purpose, other than overt
political activity, could these briefings possibly have served?
Mr. Jennings. Senator, I consider these briefings--and I
know others do as well--to be great morale boosters for
political appointees who are out toiling in the vineyards and
doing good public service on behalf of the President's agenda.
And I know we consider them to be good morale boosters, good
ways to thank people and to show them that the White House
really did appreciate their service as Presidential
administration appointees.
Senator Kennedy. And the Hatch Act--Hatch Act. You don't--
you never felt that you were over the line in terms of
violating the Hatch Act?
Mr. Jennings. No, sir. In fact, we took great strides to
make sure we weren't, including reminding appointees during the
middle of some of these briefings that if they ever felt like
they were going to be involved in anything political, to check
with their agency's counsel to make sure they did what was
appropriate.
Senator Kennedy. But you didn't feel you had to check with
your counsel?
Mr. Jennings. I've gotten repeated briefings on the Hatch
Act from White House counsel.
Senator Kennedy. And they told you your kind of briefings
were OK?
Mr. Jennings. I don't recall in those briefings that these
specific meetings you're questioning me about were covered in
those briefings that I referenced.
Senator Kennedy. Thank you, Mr. Chairman.
Chairman Leahy. Thank you, Senator Kennedy.
Senator Cardin?
Senator Cardin. Thank you very much, Mr. Chairman.
Mr. Jennings, let me just expand a little bit why there's
so much frustration in this committee. I agree with Senator
Leahy and Senator Specter about the need to move this
investigation forward and bring it to conclusion.
But let me try to put this in context so that there's a
better understanding. There was an unprecedented firing of U.S.
Attorneys without a change in administration. In just about
every case, the U.S. Attorney was involved in a criminal
investigation or refused a criminal investigation which was
unpopular with the local Republican political establishment.
The clear signal was that the firing was to either
influence those investigations or a clear signal to other U.S.
Attorneys, if they wanted to continue in office, that they had
better pay attention to the local Republican political,
partisan environment, which of course is totally wrong in the
independence of U.S. Attorneys conducting criminal
investigations.
We've had the opportunity to question people at Department
of Justice and we have gotten conflict--to be generous,
conflicting--reports, but in most cases they point somewhat to
the White House for involvement. That is why it is important
for us to have the information from the White House in order to
try to draw conclusions as to whether inappropriate political
influence is exerted over the Department of Justice to
implement the criminal investigation.
Now, I put that in context because the questions that have
been asked to you are to try to get to the bottom of that. And
I disagree with the claim of Presidential privilege, and I
understand your position in trying to adhere to the wishes of
your employer.
So let me try to ask some questions and I will specifically
exclude from this question--although I'd like to have the
answers to it--information concerning the U.S. Attorney
firings, but to try to get at your role in the White House and
how matters that involve political considerations were handled
by you.
There's at least some indication that local political
concerns, you filtered through the White House and tried to
respond to set up appointments for people or to have those
concerns at least understood by those in the executive branch.
So let me exclude the Department of Justice complaints
concerning U.S. Attorneys, because that's not what I'm asking.
Did you receive complaints, or concerns, or interests from
local political establishments dealing with Federal agencies in
which the caller or person who communicated with you desired
for you to communicate that to some agency or to set up certain
appointments?
Mr. Jennings. I think it's fair to say that I--I received
telephone calls from people complaining about a number of
things. You know, it's the White House Office of Political
Affairs. One of our roles is to, you know, deal with the
public, especially outside, out in the States. And so we had
frequent communications and I--I can say I've heard complaints
about matters large and small.
Senator Cardin. Did you get requests to set up appointments
with individuals within certain agencies?
Mr. Jennings. I had some--some requests, yes.
Senator Cardin. And would you then followup and call, I
guess, a political appointee or some other person within the
agency to set up meetings?
Mr. Jennings. Typically I would deal with the White House
Liaison and just simply ask them, you know, is there an
appropriate way that this can be handled, can you give us
guidance, can you give this person guidance on what they're
trying to find out. So I would say not--not typically all the
time. The White House Liaison was the point of contact for
trying to figure out the appropriate thing to do.
Senator Cardin. I'm not interested in you giving me
specific names, but could you give me specific examples?
Mr. Jennings. Sure. I recall getting a question once from a
political contact in a State who had some issue regarding
housing. And he thought maybe the right person he needed to
speak with could be at the HUD, and so I called the White House
Liaison there and said, can you help point this gentleman in
the right direction, find the appropriate meeting for him to
have, or at least give him guidance on--on how he might be able
to get his questions answered.
Senator Cardin. Were you the point person in the political
office in the White House that handled these types of requests?
Mr. Jennings. I would get calls. But there are several
staffers in the political affairs office who handle, you know--
in other words, I'm--there's more than just one person working
there and I think--you know, multiple people would get requests
of--of a similar nature.
Senator Cardin. Again, excluding the U.S. Attorney firing
issue, did you get inquiries concerning Department of Justice?
Mr. Jennings. Senator, I don't have any specific
recollection of any. But, you know, I--I would get contacts
about things that aren't U.S. Attorneys. So, you know, like a
U.S. Marshall, perhaps, or a--you know, a judge, or--you know,
other--other similar positions.
There's--you know, there's also other politically appointed
personnel at the Department of Justice. People make
recommendations for certain things. So, you know, I don't know
if they all would be characterized as complaints, but--but--
but--
Senator Cardin. I'm not necessarily limiting this to
complaints.
Mr. Jennings. OK.
Senator Cardin. People who had interest, they wanted to get
things--a message across, they wanted an opportunity to get
their position heard within the Department of Justice. Again,
excluding the U.S. Attorneys for the firing.
Mr. Jennings. Yeah. I wouldn't say that all the people were
asking for meetings. In fact, that--that rarely, in my
experience, happened.
Senator Cardin. And who would you contact at Department of
Justice?
Mr. Jennings. Typically we would contact the White House
Liaison, as we would any other agency.
Senator Cardin. And that person?
Mr. Jennings. Well, during my tenure, my belief is there
have been two. One, of course, was Monica Goodling, who you all
know, and previous to her, if I'm not mistaken, the White House
Liaison was a young lady named Jan Williams.
Senator Cardin. Now, did you have contact with both of
them? Again, I'll leave out the U.S. Attorney firing issue. Did
you have contacts with both of them in your role?
Mr. Jennings. Yes. Yes.
Senator Cardin. And it would involve concerns expressed
by--or requests--concerns--requests from individuals who felt
that they should have an opportunity to have their point of
view heard?
Mr. Jennings. Yes. Although, to add some context to your
question, I would say that a vast majority of the contacts that
you might be referencing were people simply saying things like,
hey, I know a great young lawyer who is interested in public
service, can you recommend them for a political appointment, or
similar personnel-type recommendations.
Senator Cardin. Let me ask one further question, if I
might, Mr. Chairman.
What procedures, if any, did you have in place to make sure
that it would not be an inappropriate political interference
with an agency violating the Hatch Act or just an inappropriate
contact? Did you have a policy in place? Was there something
written or was this left to your individual judgment?
Mr. Jennings. Well, regarding--let me speak to personnel
recommendations, because that's the place where I think that I
had the most contact, frankly. And I--you know, I never thought
that making a personnel recommendation--here's a guy who wants
to serve or a girl who wants to serve, you know, they're a
qualified lawyer, can you consider them, I certainly didn't see
any issues with that.
We were doing that with every agency in conjunction with
our colleagues at Presidential Personnel. So, you know, I never
felt the need, I--I suppose, for any guidance about simply
making or passing on a personnel recommendation.
Senator Cardin. Including a complaint against someone in
the agency?
Mr. Jennings. Again, I'm struggling to come up with--I
mean, I know the issue you're moving around the outside of
here, and--but just in general, I don't recall a lot of
complaint, frankly, where we had to pass it on in the way
you're asking me, I think. Now--
Senator Cardin. But you would. You would pass it along if
you--the ones that--there weren't many, but you said you would.
Mr. Jennings. Sure. And what I would add to that is, we
would pass things along for appropriate action. In other words,
I think part of the filter here would be, I say this person has
this complaint, or this issue, or this recommendation, or this
question, and they say, OK. And I say, can you appropriately
find a right way to route it?
Senator Cardin. I guess my question is, a call is coming
from the White House to an agency head or a congressional
relations person, or White House relations person, coordination
person. Was there any filter in place to make sure that they
understood or to protect against undue political influence from
your contact?
Mr. Jennings. I never attempted to put any undue political
influence in a contact. And again, I would reiterate that what
we always would ask for would be an appropriate routing of the
question or whatever was being asked.
Senator Cardin. Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Senator Schumer?
Senator Schumer. Thank you. Thank you, Mr. Chairman.
Thank you, Mr. Jennings, for coming. I'd like to go back to
the New Mexico attorney meetings. And first I want to establish
here, it was clear at Sara Taylor's hearing that communications
that you would have with people outside the executive branch
were not privileged. There's no basis for privilege in that
regard. Am I correct about that?
Mr. Jennings. Senator, it's my understanding the President
has asserted privilege over both internal and external
communications.
Senator Schumer. Well, but if the purpose is to protect
what people say to the President or his underlings, what does
that have to do with it? Do you see any legal argument for
that?
Mr. Jennings. Senator, I have no standing to challenge the
President's assertion of executive privilege in this case.
Senator Schumer. It's clearly just stonewalling. But let me
ask you some questions here for the record, because I think
there's no basis for the assertion of privilege here, and we'll
proceed further.
We know from e-mails and testimony that you arranged for
Justice Department officials to meet with New Mexico attorneys
active in Republican politics. These were: Mickey Barnett--
that's in the memo that was talked about by Senators Leahy and
Durbin--there was Pat Rogers, and there's another possible
individual. That meeting took place after a White House
meeting, we've been told, so first let me ask you about the
White House meeting with New Mexico Republican officials.
What can you tell us about this White House meeting in
2006? Were you present?
Mr. Jennings. Senator, may I have a moment? Thank you.
[Pause].
Chairman Leahy. The record can note, the witness is
discussing this with both White House counsel and his counsel.
[Pause].
Chairman Leahy. And the time during which he is discussing
with White House counsel and his counsel will not be charged
against the Senator from New York.
Senator Schumer. Go ahead. Sorry.
Mr. Jennings. Yes, sir. Senator, thank you for the time. I
had--I recall--to the best of my recollection--it's been
several months ago--I recall having breakfast with Mickey and
Pat while they were in town on other business.
Senator Schumer. Uh-huh. So you did have breakfast with
them. OK.
And was that at the White House?
Mr. Jennings. I believe it was. Yes, Senator.
Senator Schumer. And was there anyone else present other
than Mickey, Pat, and yourself?
Mr. Jennings. I don't recall anyone being present.
Senator Schumer. OK.
Were there any other such meetings, and if so, with whom,
on what other dates?
Mr. Jennings. Such meetings? I'm sorry.
Senator Schumer. With Mickey Barnett, Pat Rogers, and other
White House officials.
Mr. Jennings. Oh. I don't--I don't have any recollection of
any. But--but I--you know, I should say that--you know, as I'm
aware--
Senator Schumer. Are you aware of any?
Mr. Jennings. I don't--I don't have any recollection of
any. But I should say that I have--you know, I worked in New
Mexico so I knew Mickey and Pat. It wasn't unusual for us to
have, you know, social interaction.
Senator Schumer. Right. But this wasn't just a social
meeting, right? This was related to this memo.
Mr. Jennings. Senator, I--let me have one moment, Senator.
Thank you.
Senator Schumer. Please take your time.
Chairman Leahy. These committee meetings are open to the
public and many people come here to watch these hearings. I
expect everyone here to be respectful of the witness, the
committee, and other members of the public. I mention this
because I don't want to hear any outbursts or audible comments
from people in the audience. If there are, I will have the
Capital Police restore order.
I just want to make sure every understands that. I don't
care which side of the issue you're on. So we'll have order in
this hearing room. The witness has a right to be heard. The
Senators have the right to ask questions. We will conduct this
hearing in that fashion so long as I'm Chairman, just so
everybody understands.
Mr. Jennings. Senator, thank you. You know, to be candid, I
don't recall this coming up. It was a--as I recalled it, it was
a social breakfast. In fact, I think it was the first time I
had had the chance to take, you know, my friends to the White
House mess for breakfast and it was more social in nature.
Senator Schumer. All right. OK.
And whose idea was it to have the meeting? Did they call
you?
Mr. Jennings. The meeting with me at the mess?
Senator Schumer. Uh-huh.
Mr. Jennings. No. I--I think they had informed me they were
coming to town and I had the idea that I would take them to
breakfast.
Senator Schumer. Got you.
Any of your superiors aware that you were having such a
meeting?
Mr. Jennings. I don't--I don't recall. But--
Senator Schumer. And then what was--did they bring up at
the meeting their dissatisfaction with Mr. Iglesias?
Mr. Jennings. I don't have any specific recollection of it
coming up.
Senator Schumer. They never said they didn't want him to
stay, they never talked about him?
Mr. Jennings. Again, I--it was a social breakfast. I don't
remember any conversations, really, about business in general.
I just remember it being a social breakfast and me saying, this
is the White House mess, it's run by the Navy, et cetera, et
cetera.
Senator Schumer. OK.
Then why did you then set up a meeting with Monica Goodling
for them?
Mr. Jennings. Senator, I believe, pursuant to the
President's assertion of privilege, I respectfully decline to
answer that question at this time.
Senator Schumer. OK.
Can you explain or your counsel explain to me why all these
other questions are not privileged and this one is?
Mr. Paoletta. Senator, it's been a very tough morning.
Scott is trying to navigate between the President's claim as a
current White House and the subject of the--responding to
questions pursuant to the subpoena. I think we're trying to
navigate on a question-by-question basis, quite frankly.
Senator Schumer. Yes. But you can't just answer the ones
you want to answer and not answer the ones you don't want to
answer. What is the rationale, the legal rationale, of
answering all the others and not this one?
Mr. Paoletta. Sure. Because I think it's got--
Senator Schumer. The level of privilege is about the same.
Mr. Paoletta. Yes, sir. I think Scott's recollection as
pertains to that meeting, that breakfast meeting, had nothing
whatsoever to do with the U.S. Attorney matter, and it's with
an outside person.
Senator Schumer. Right.
Mr. Paoletta. Not within the White House. And we have the
White House counsel official here, Emmett Flood, if you care to
have the White House's take on it.
Senator Schumer. But right after--OK. Look, right after the
meeting or about the same time as the meeting, a memo was sent
to go to Monica Goodling.
Mr. Paoletta. And sir, I think, from the--
Senator Schumer. It said that they--that Mickey Barnett's
name is mentioned and it says if it's sensitive--that Monica
ought to see her and it's sensitive, and it just doesn't square
with the testimony before, or seems not to square. I mean, we
can't get to the bottom of it if Mr. Jennings can't answer. Why
would a purely--after a purely social meeting would there then
be a memo sent to Monica Goodling on a sensitive matter asking
her to see Mr. Barnett?
Mr. Paoletta. Sir, all I can do is read the President's--
Mr. Fielding's letter reflecting the President's invocation of
executive privilege and look at the contents of this e-mail,
which is--
Senator Schumer. Right. Let me ask the question just once
more, and I want you to think carefully, Mr. Jennings.
It is your testimony you have no recollection of Mr.
Barnett ever complaining about Mr. Iglesias at that breakfast
or at any other time?
Mr. Jennings. Senator, I think that question falls in the
external deliberation category covered by Mr. Fielding's letter
asserting executive privilege.
Senator Schumer. A minute ago you answered the question.
It's the same question.
Mr. Jennings. You--you--Senator, I would submit, you asked
me specifically a moment ago about the breakfast, and in this
case you asked me the breakfast and any other time.
Senator Schumer. How is one privileged and one not? It
depends on, if you're having eggs it's privileged and if you're
having Corn Flakes, it's not? I mean, I don't get it.
Mr. Jennings. Senator, I'm doing the best I can. And
believe me, this is likely as frustrating for me as it is for
you. But I'm doing the best I can.
Chairman Leahy. No, trust me, it is not.
[Laughter.]
Senator Schumer. OK.
Did you know that Mr. Barnett wanted to get rid of Mr.
Iglesias?
Mr. Jennings. Senator, I think, pursuant to the President's
assertion of privilege, I must decline to answer your question
at this time.
Senator Schumer. Mr. Chairman, my time is expired. I just
see no rationale for the jumping on one side of the line and
the other. It depends--it seems to me it depends on the
difficulty of the question, not the amount of privilege.
Chairman Leahy. If it's any consolation, I agree with you.
There was time, as we mentioned, appropriately, Mr. Jennings
was conferring with the White House counsel, conferring with
his counsel which ate into your time. Did you wish to ask
another question?
Senator Schumer. Yes. Thank you, Mr. Chairman.
Chairman Leahy. Then we will go to Senator Whitehouse.
Senator Schumer. According to Matt Friedrich, who is the
Principal Deputy of the DOJ Criminal Division, and that's who
these gentlemen met with, Messrs. Barnett and Rogers complained
that David Iglesias in New Mexico was not pursuing a voter
fraud prosecution quickly enough for their case--for their
taste. Friedrich also testified ``it was clear to me that they
did not want him to be the U.S. Attorney.''
Now, can you confirm that, after this White House meeting,
you set up a meeting for Messrs. Barnett and Rogers at DOJ? Can
you confirm that?
Mr. Jennings. Senator, pursuant to the President assertion
of executive privilege, I must respectfully decline to answer
that question.
Senator Schumer. Sir, we have an e-mail that says you did.
Mr. Jennings. I understand.
Senator Schumer. How--can you--I mean, again, we are
getting to be in Never-Never Land here. The memo is not
privileged, but your confirming what we have all read in the
memo is privileged?
Mr. Jennings. Senator, may I have one moment?
Senator Schumer. Yes.
Mr. Jennings. Thank you.
[Pause].
Mr. Jennings. Senator, I--the President's directive does
not permit me to discuss it at this time.
Senator Schumer. OK.
Can you confirm that you wrote this e-mail?
Mr. Jennings. Yes.
Senator Schumer. OK.
Mr. Chairman, again, I just want to express my frustration
with--it's patently, you know, without any verifiable claim,
that once there is a memo that says something, that the witness
can't confirm it. If the memo is privileged, then you can't
confirm it. If the memo is not privileged, then you can. I
think it shows what is going on here and the lack of desire of
the White House to testify and to hide behind a false wall of
privilege.
Thank you, Mr. Chairman.
Chairman Leahy. I might note parenthetically, we've had--
unfortunately, I understand we've had at least one major
witness who has come up here with very selective memory. Now we
seem to have selective use of a privilege. But that's a
determination, Mr. Jennings, you have to make. As I told you
and your attorney before, that's something you're going to have
to decide. The committee will have to make its decision how to
respond to that.
Senator Whitehouse?
Senator Whitehouse. Thank you, Mr. Chairman.
First, I would just like to take a moment to respond to the
comparison that the very distinguished Senator from Utah drew a
moment ago between--I wasn't here at the time, but I believe
that there was an episode in which congressional staff got
access to Senate private e-mail, and obviously there was
considerable hue and cry about that.
I don't see that as comparable to this situation. In the
same vein that a firefighter doesn't just get to walk in your
house and wander around, if there's smoke pouring out the
windows then there's a different status and the firefighters do
get to go into your house.
In my estimation, the unauthorized and purposeless--from a
governmental point of view--access that a congressional staffer
inadvertently got to send an e-mail is comparable in no respect
to the business of the United States being done pursuant to our
legislative charter by this committee with respect to a
department where I think it's very clear that the smoke is,
indeed, pouring out of the windows. So I just wanted to make
that clear.
For the witness, I just have one question. In your
assertion of executive privilege today, did you seek advice of
counsel and are you acting on advice of counsel or are you
responding purely as an employee to the directive of the White
House?
Mr. Jennings. Senator, I have discussed it with my counsel,
and I am also an employee of the White House and intend to
follow the President's directive the best I--the best I can.
Senator Whitehouse. So you have endeavored to make an
independent determination, on advice of counsel, as to the
merits of the executive privilege you are asserting here?
Mr. Jennings. Senator, I'm not sure that I am here today to
set--
Senator Whitehouse. Whoever has that cell phone that is
that important. please step outside to take your cell phone
calls. We would not want to interfere with your getting a cell
phone call. If you're going to have to get one in here, step
outside and take it and go to the back of the line.
Go ahead.
Mr. Jennings. Thank you, Senator. Senator, I don't think I
am--it would be fair to say I am here to assess the merits of
the President's assertion of privilege versus the congressional
counterbalance, but I am here as a current White House employee
who is doing his level best to follow a directive from the
President. And I would also say to you, sir, that the White
House counsel is here and I think would probably be more than
willing to speak with you about the assertion of privilege if
you want to discuss the merits of it.
Senator Whitehouse. I'm not here for a discussion on the
merits through you. I just wanted to know from you what the
basis was under which you were asserting or honoring the
privilege.
And what I understand is, you are asserting or honoring the
privilege on the basis of the instruction that you receive from
the White House and not on the basis of an independent
determination that you have made on the advice of your counsel
that this does in fact apply, and that this is in fact a proper
assertion of the privilege. You didn't take that step, you just
followed what the White House directed?
Mr. Jennings. Yes. I think that's a fair statement.
Senator Whitehouse. OK. Thank you.
I yield back my time, Mr. Chairman.
Chairman Leahy. Thank you very much.
Did you bring any documents with you here today?
Mr. Jennings. No, sir.
Chairman Leahy. And what happened to the documents you were
compelled to provide based on the committee's subpoena?
Mr. Jennings. Senator, any documents that I had were turned
over to my counsel, and he reviewed the documents and
determined that at least some of them may fall under the
President's directive. It's my understanding he provided those
back to the White House counsel and they have asserted--the
President has asserted executive privilege over them.
Chairman Leahy. What about the other documents?
Mr. Jennings. We turned all the documents over to the White
House counsel.
Chairman Leahy. And so is it their position then that
they're all covered by executive privilege?
Mr. Jennings. Senator, I think--
Chairman Leahy. You may want to think about the answer to
that. Is it your position they're all covered by executive
privilege?
Mr. Jennings. Sure. If you'd give me just a moment. Thank
you, Senator.
[Pause].
Mr. Jennings. Senator, the subpoena asked for documents
responsive to the U.S. Attorneys matter. Those documents that
my counsel deemed responsive were turned over to the White
House counsel, and they have, pursuant to the President's
assertion, not delivered them today.
Chairman Leahy. And you're not going to provide any of the
documents you were subpoenaed for?
Mr. Jennings. Senator, pursuant to the President's
assertion of executive privilege, I have to respectfully
decline to provide those documents at this time.
Chairman Leahy. You testified earlier that you used your
Republican National Committee BlackBerry out of convenience,
24/7, the very hard work that you have. Does the White House
ever issue BlackBerries to their staff who have, also,
strenuous hours?
Mr. Jennings. I think some staffers were issued official
BlackBerries. I was not and so I--
Chairman Leahy. Did you ask for one?
Mr. Jennings. Yes, sir.
Chairman Leahy. And what were you told?
Mr. Jennings. This was very early in my employment. I was
not yet the Deputy Director. I was still an Associate Director.
And the President was doing a lot of travel in my region. I
managed the southern States. And I was receiving a lot of e-
mail on my official account and I requested at that moment, and
I was told that it wasn't the custom to give Political Affairs
staffers those devices.
Chairman Leahy. Did you subsequently after ask for one?
Mr. Jennings. After the matters that have been discussed
came to light, we have since then been issued official devices.
Chairman Leahy. So you have one now?
Mr. Jennings. Yes, sir.
Chairman Leahy. Let me give you a document here number OAG-
1622, a copy of a February 28, 2007 e-mail from you to
[email protected], White House counsel Fred Fielding, Kevin
Sullivan, Dana Perino, and Kyle Sampson. Are you familiar with
that document?
Mr. Jennings. Yes, Mr. Chairman.
Chairman Leahy. Does this have the subject line ``NM
USATTY: Urgent Issue'', correct?
Mr. Jennings. Yes, sir.
Chairman Leahy. That would be New Mexico U.S. Attorney:
Urgent Issue. Is that what it means?
Mr. Jennings. Yes, sir.
Chairman Leahy. And is [email protected] an RNC e-mail
address for Karl Rove?
Mr. Jennings. I believe that that domain is managed by the
RNC.
Chairman Leahy. Somehow that wasn't my question. Is
[email protected]
Mr. Jennings. I'm sorry, Senator. Yes.
Chairman Leahy.--an RNC e-mail address for Karl Rove?
Mr. Jennings. Yes, sir. As I understand it, it is. Yes.
Chairman Leahy. I don't want you to get into the mistake
that the White House made, or the statement they made trying to
mislead this committee when they said all those e-mails were
erased, and of course they were not, which some of us, at
least, felt was part of the stonewalling.
Now, this e-mail describes the phone call you received from
Senator Domenici's chief of staff regarding David Iglesias'
statement that two Members of Congress contacted him before the
election to urge him to bring indictments before the election,
and one hung up on him angrily out of frustration over his
answers. Is that correct?
Mr. Jennings. Senator, I think discussion of this document
is covered by the President's assertion of executive privilege
and I must respectfully decline to answer at this time.
Chairman Leahy. We'll put the document in the record. Was
the information you received in this e-mail on February 28th of
this year new to you?
Mr. Jennings. Senator, I'm going to have to decline to
answer that question pursuant to the President's assertion.
Chairman Leahy. It's interesting. Even if we do get
documents, we're told you can't talk about the documents. This
is--did you ever read Catch-22 when you were younger?
Mr. Jennings. I'm familiar with the phrase.
Chairman Leahy. Did you read the book?
Mr. Jennings. I did not. I have not.
Chairman Leahy. You might want to go back and read it. It's
very interesting. It seems to be part of your training manual.
When did you first become aware of these contacts with Mr.
Iglesias?
Mr. Jennings. Senator, I'm going to have to decline to
answer that question based on the President's assertion.
Chairman Leahy. Were you aware of New Mexico Republican
Party officials' complaints about Mr. Iglesias?
Mr. Jennings. Senator, I'll have to decline to answer that
question based on the President's assertion.
Chairman Leahy. You can't even say whether you were aware
of these? I'm not asking you anything you discussed with the
President or the President discussed with you. Were you aware
of New Mexico Republican Party officials' complaints about Mr.
Iglesias?
Mr. Jennings. Senator, the President's assertion, as I read
it in Mr. Fielding's letter, includes both internal and
external communications.
Chairman Leahy. Let me ask you this. Have you ever read
anything in the newspapers since about those complaints?
Mr. Jennings. I have read articles, yes.
Chairman Leahy. Do you know why he was asked to resign--why
Mr. Iglesias was asked to resign?
Mr. Jennings. Senator, I'll have to decline to answer that
pursuant to the President's assertion.
Chairman Leahy. OK.
Now, would you take a look at OAG-26, an August 18, 2006 e-
mail exchange between you, Monica Goodling, and Kyle Sampson,
with the subject line: ``Conference call RE: Tim Griffin''. Is
that what it is?
Mr. Jennings. Yes, sir.
Chairman Leahy. Did you have this conference call regarding
Tim Griffin?
Mr. Jennings. Senator, I think that question is covered
pursuant to the President's assertion of executive privilege.
Chairman Leahy. I just wanted to make sure.
The document was produced to the committee by the
Department of Justice. It contains an e-mail exchange involving
you and a Department of Justice official. Not somebody in the
White House, but you and a Department of Justice official. They
made it available to us. And you're going to refuse to answer
that question based on a Presidential claim of privilege?
Mr. Jennings. Senator, I am not in a position to challenge
the President's assertion, based on what we see in the letter
from Mr. Fielding.
Chairman Leahy. I'm asking you about this particular item.
You're claiming a privilege on that?
Mr. Jennings. Yes. Pursuant to the President's assertion,
I'll have to decline to answer at this time.
Chairman Leahy. One of the e-mails in this document that
was provided by us and which is part of the record, and will be
made part of the record again, the followup e-mail Ms. Goodling
sent to Mr. Sampson recounting a conversation she had with you
the previous week.
She wrote, and there's a lot of shorthand things, but what
she says is, ``We have a Senator problem. So while White House
is intent on nominating, Scott''--which would be you--``thinks
we may have a confirmation issue.'' And Mr. Sampson testified
in an e-mail that ``Scott,'' and this e-mail is referenced to
you. What was this confirmation issue?
Mr. Jennings. Senator, I have to decline to answer that
question at this time pursuant to the President's claim of
executive privilege.
Chairman Leahy. I suggested you read Catch-22. You're too
young to remember the Watergate era. You may want to go back
and read some of the historical accounts of that.
Senator Specter?
Senator Specter. I think we've gone about as far as we can
go, Mr. Chairman.
Chairman Leahy. We have other questions we will submit for
the record. I would ask you to return as quickly as you can if
there are those you will answer. Of course, if there are those
that you will not, notify that, too.
Chairman Leahy. As with all witnesses, you will have a
chance to look at your--the transcript of your answers to see
if there are things on there that you may want to change.
We were supposed to go to an executive meeting immediately
after this, but we're going to have a vote in just a few
minutes. I know what it's like trying to get people back. We've
also got to rearrange this room to do that. So we will begin
that executive mark-up at 2.
[Whereupon, at 11:49 a.m. the committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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