[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? 

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

                                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

                              ----------                              

                             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
                              ----------                              

                             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
                              ----------                              

                              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
                              ----------                              

                              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
                              ----------                              

                             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
                              ----------                              

                             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

                              ----------                              


                         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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