[Senate Hearing 110-462]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 110-462
 
                    DEPARTMENT OF JUSTICE OVERSIGHT

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


                                HEARINGS

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               ----------                              

                       APRIL 19 AND JULY 24, 2007

                               ----------                              

                          Serial No. J-110-28

                               ----------                              

         Printed for the use of the Committee on the Judiciary

                    DEPARTMENT OF JUSTICE OVERSIGHT




        Printed for the use of the Committee on the Judiciary




                  U.S. GOVERNMENT PRINTING OFFICE
38-236                    WASHINGTON : 2009
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing 
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC 
area (202) 512-1800 Fax: (202) 512-2104  Mail: Stop IDCC, Washington, DC 
20402-0001


                       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

                              ----------                              

                             APRIL 19, 2007
                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Biden, Hon. Joseph R., a U.S. Senator from the State of Delaware, 
  prepared statement.............................................   188
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................   210
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin, prepared statement..................................   190
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York...........................................................     6
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....     7
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     4

                                WITNESS

Gonzales, Alberto R., Attorney General of the United States, 
  Department of Justice..........................................     7

                         QUESTIONS AND ANSWERS

Responses of Alberto R. Gonzales to questions submitted by 
  Senators Leahy, Specter, Kennedy, Durbin, and Schumer..........    96

                       SUBMISSION FOR THE RECORD

Gonzales, Alberto R., Attorney General of the United States, 
  Department of Justice, statement and attachment................   192
Hertling, Richard A., Acting Assistant Attorney General, 
  Department of Justice, Washington, D.C., letter................   213

                             JULY 24, 2007
                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.   219
    prepared statement...........................................   580
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................   222

                                WITNESS

Gonzales, Alberto R., Attorney General of the United States, 
  Department of Justice..........................................   224

                         QUESTIONS AND ANSWERS

Responses of Alberto R. Gonzales to questions submitted by 
  Senators Leahy, Specter, Kennedy, Biden, Feinstein, Feingold, 
  Schumer, Durbin and Grassley...................................   287

                       SUBMISSION FOR THE RECORD

Gonzales, Alberto R., Attorney General of the United States, 
  Department of Justice..........................................   554


                    DEPARTMENT OF JUSTICE OVERSIGHT

                              ----------                              


                        THURSDAY, APRIL 19, 2007

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, Pursuant to notice, at 9:33 a.m., in 
room SH-216, Hart Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Kennedy, Biden, Kohl, Feinstein, 
Feingold, Schumer, Durbin, Cardin, Whitehouse, Specter, Hatch, 
Grassley, Kyl, Sessions, Graham, Cornyn, Brownback, and Coburn.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Chairman Leahy. Good morning. This week, like all 
Americans, we join in mourning the tragic killings at Virginia 
Tech on Monday. The innocent lives of students and--before we 
start, I notice some people holding up signs. A lot of people 
have stood in line a long time to be here. This is an important 
hearing. I would ask that people be polite enough not to hold 
up something and block those who have waited in line, waited to 
be at this hearing. Certainly anybody can be here, but I will 
not allow anyone, no matter what positions they may be taking, 
to block the view of others who have a legitimate right to be 
here.
    As I said, we join in mourning the tragic killings at 
Virginia Tech. The innocent lives of students and professors 
are a terrible loss to their families, their friends, and their 
community. It affects us all. We honor them and mourn their 
loss. My family and I hold them in our prayers and our 
thoughts.
    I expect in the days ahead, as we learn more about what 
happened, how it happened, and perhaps why it happened, we will 
have debate and discussion and perhaps proposals to consider. I 
look forward to working with the Department of Justice, with 
Regina Schofield, the Assistant Attorney General for the Office 
of Justice Programs, the Attorney General, who has offered 
briefings, and others to make improvements that can increase 
the safety and security of our children and grandchildren in 
schools and colleges.
    Today the Department of Justice is experiencing a crisis of 
leadership perhaps unrivaled during its 137-year history. There 
is a growing scandal swirling around the dismissal and 
replacement of several prosecutors, and persistent efforts to 
undermine and marginalize career lawyers in the Civil Rights 
Division and elsewhere in the Department.
    We hear disturbing reports that politics played a role in a 
growing number of cases, and I have warned for years against 
the lack of prosecutorial experience and judgment throughout 
the leadership ranks of the Department. We are seeing the 
results amid rising crime and rampant war profiteering, 
abandonment of civil rights and voting rights enforcement 
efforts, and lack of accountability. I fear the Justice 
Department may be losing its way.
    The Department of Justice should never be reduced to 
another political arm of the White House, this White House or 
any White House. The Department of Justice must be worthy of 
its name. The trust and confidence of the American people in 
Federal law enforcement must be restored.
    Now, since Attorney General Gonzales last appeared before 
this Committee on January 18th, we have heard sworn testimony 
from the former U.S. Attorneys forced from office and from his 
former Chief of Staff. Their testimony sharply contradicts the 
accounts of the plan to replace U.S. Attorneys that the 
Attorney General provided to this Committee under oath--under 
oath--in January and to the American people during his March 
13th press conference.
    The Committee is still seeking documents and information 
and testimony so that we may know all the facts, the whole 
truth, surrounding the replacement of these prosecutors who had 
been appointed by President Bush.
    One thing abundantly clear is that if the phrase 
``performance related'' is to retain any meaning, that 
rationale should be withdrawn as the justification for the 
firing of David Iglesias, John McKay, Daniel Bogden, Paul 
Charlton, Carol Lam, and perhaps others. Indeed, the apparent 
reason for these terminations has a lot more to do with 
politics than performance.
    In his written testimony for this hearing and his newspaper 
columns, the Attorney General makes the conclusory statement 
that nothing improper occurred.
    The truth is that these firings have not been explained, 
and there is mounting evidence of improper considerations and 
actions resulting in the dismissals.
    The dismissed U.S. Attorneys have testified under oath they 
believe political influence resulted in their being replaced. 
If they are right, the mixing of partisan political goals into 
Federal law enforcement is highly improper. The Attorney 
General's own former Chief of Staff testified under oath that 
Karl Rove complained to Attorney General Gonzales about David 
Iglesias not being aggressive enough against so-called voter 
fraud, which explains his being added to the list.
    With respect to Mr. Iglesias, the former U.S. Attorney in 
New Mexico, the evidence shows that he is held in high regard, 
considered for promotion to the highest levels of the 
Department, and chosen by the Department to train other U.S. 
Attorneys in the investigation and prosecution of voter fraud.
    Then as the election approached in 2006, administration 
officials received calls from New Mexico Republicans 
complaining that Mr. Iglesias would not rush an investigation 
and indictments before the November election.
    True accountability means being forthcoming. True 
accountability requires consequences for bad actions. So this 
hearing is such an opportunity.
    Last November, the American people rejected this 
administration's unilateral approach to Government and to the 
President acting without constitutional checks and balances. 
Rather than heed that call, within days of that election senior 
White House and Justice Department staff finalized plans to 
proceed with the simultaneous mass firings of a large number of 
top Federal prosecutors.
    By so doing, they sent the unmistakable message--not only 
to those forced out but to those who remain--that the 
traditional, independent law enforcement by U.S. Attorneys 
would not be tolerated by this administration. Instead, 
partisan loyalty had become the yardstick by which all would be 
judged.
    So I do not excuse the Attorney General's actions and his 
failures from the outset to be forthright with us, with these 
prosecutors, but especially with the American people.
    The White House political operatives who helped spearhead 
this plan did not have effective and objective law enforcement 
as their principal goal. They would be happy to reduce United 
States Attorney's Offices to just another political arm of the 
administration.
    If nothing improper was done, people need to stop hiding 
the facts and tell the truth and the whole truth. If the White 
House did nothing wrong, then show us. Show us the documents 
and provide us with the sworn testimony--the sworn testimony--
of what was done and why and by whom. If there is nothing to 
hide, then the White House should stop hiding it.
    Quit claiming the e-mails cannot be produced. Quit 
contending that the American people and their duly elected 
representatives cannot see and know the truth. And I trust that 
after the weeks of preparation for this hearing, the Attorney 
General's past failures to give a complete and accurate 
explanation of these firings will not be repeated today.
    There has always been a tacit and carefully balanced 
intersection between politics and our law enforcement system, 
but it has been limited to the entrance ramp--the entrance ramp 
of the nomination and confirmation process. And instead of an 
entrance ramp, this administration seems to have envisioned a 
political toll road.
    Real oversight has returned to Capitol Hill, and the 
investigation of this affair already pulled back the curtain to 
reveal unbridled political meddling, Katrina-style cronyism, 
and unfettered White House unilateralism that has been directed 
at one of our most precious national assets--our law 
enforcement and our legal system.
    Earlier in this process, it seemed the administration was 
concluding that any answer would do, whether it was rooted in 
the facts or not. Those days are behind us. Just any answer 
won't do anymore. We need the facts, and we will pursue the 
facts until we get the truth.
    Just as respect for the United States as a leader in human 
rights has been diminished during the last 6 years, the current 
actions have served to undercut confidence in our United States 
Attorneys.
    And just as Mr. Gonzales cannot claim immunity from the 
policies and practices regarding torture that were developed 
under his watch while White House Counsel, he cannot escape 
accountability for starting off on this plan to undercut 
effective Federal prosecutors and to infect Federal law 
enforcement with narrow political goals. His actions have 
served to undermine public confidence in Federal law 
enforcement and the rule of law. By getting to the truth, we 
can take a step toward restoring that trust.
    [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 very much, Mr. Chairman.
    The purpose of this Senate oversight hearing is to 
determine this Committee's judgment as to whether Attorney 
General Alberto Gonzales should continue in that capacity. We 
are mindful of the difficulties and the achievements that 
Attorney General Gonzales had to surmount to become a Harvard 
Law graduate, become a Texas State Supreme Court Justice, White 
House Counsel, and now the chief law enforcement officer of the 
United States--a very distinguished record indeed. And we 
further appreciate your status as a role model as the first 
Hispanic Attorney General and well recall the historic 
occasion, January 4, 2005, when you appeared at that table at 
your confirmation hearing.
    As I see it, you come to this hearing with a heavy burden 
of proof to do three things: first, to re-establish your 
credibility; second, to justify the replacement of these United 
States Attorneys; and, third, to demonstrate that you can 
provide the leadership to the United States Department of 
Justice, which has such a vital role in protecting our national 
interests in so many lines.
    Notwithstanding demands for your resignation by Democrats 
and Republicans in the U.S. Senate and elsewhere, I have 
insisted both publicly and privately that you be given your so-
called day in court to give your responses. You do so in the 
context of testimony from a number of people in the Department 
of Justice who have contradicted certain of your public 
statements.
    You earlier said that you were not involved in any 
discussions, and then your subordinates testified to the 
contrary, that you were at meetings where discussions were 
undertaken about the replacement of these U.S. Attorneys.
    You then said that you did not see memoranda, and again 
your subordinates have testified under oath that you were at 
meetings where documents, memoranda, were distributed. And then 
you modified your statement about discussions to say that you 
were not involved in deliberations. And, again, the testimony 
of three of your key subordinates--your former Chief of Staff, 
Kyle Sampson; the Acting Associate Attorney General, Bill 
Mercer; and the former Director of the Executive Office of U.S. 
Attorneys, Michael Battle--who said that you were involved in 
deliberations and had done so with some particularity. So that 
this is your opportunity, Mr. Attorney General, to tackle that 
burden of proof, the heavy burden of proof, to re-establish 
your credibility here.
    With respect to the removal of United States Attorneys, 
there is no doubt that the President can remove U.S. Attorneys 
for no reason at all. And President Clinton did just that in 
1993 when, in one fell swoop, he removed 93 United States 
Attorneys. But there cannot be a removal for a bad reason; that 
is, if, as suggestions have been made, U.S. Attorney Lam in San 
Diego was replaced because she was hot on the trail of 
confederates of former Congressman Duke Cunningham, who is now 
serving 8 years in jail. Or a U.S. Attorney may not be replaced 
if, as the allegations are made--and until we hear from you, 
Mr. Attorney General, I am going to regard them as allegations, 
until we hear from you, until we give you an opportunity to 
respond. But the allegations were made that U.S. Attorney 
Iglesias in New Mexico was removed because he would not 
initiate prosecutions which, in his discretion, he felt were 
unwarranted.
    Now, as you and I know, I have been candid with you in 
suggestions as to what you should do. I think that is the role 
of a Senator, to be open to discuss the issues candidly, and 
you called me on a Saturday, and I wrote to you some time ago 
outlining what I thought you had to address. As far as I am 
concerned, this is not a game of ``gotcha.'' This is a matter 
where we want the facts. We want the hard facts so we can make 
an evaluation. And I suggested to you that you make a case-by-
case analysis as to all of the U.S. Attorneys who were asked to 
resign; and if you concluded on re-examination that some were 
asked to resign improperly, that you ought to say so and even 
ought to consider reinstatement. If someone is improperly 
removed, there are judicial remedies--not in this case but in 
other analogous situations where courts will order 
reinstatement. Well, it's pretty hard to unscramble the eggs, 
but that is a possibility.
    With respect to leadership, no one, short of the Secretary 
of Defense, has a more important role in our Government in the 
administration of civil and criminal justice than does the 
Attorney General of the United States heading the Department of 
Justice. In your effort to remove yourself or distance 
yourself, as you appear to have done, denying discussions, 
denying deliberations, denying memoranda, you face really the 
horns of a dilemma, and that is, if you were removed and 
actions were taken which were inappropriate, that you were not 
really part of, although you have articulated your overall 
responsibility as CEO, but not responsible on the judgments, 
from the other horn of the dilemma of how you can provide the 
leadership if you are detached on such really important 
matters. It is a very tough dilemma, I think, that you face. 
And I believe you have come a good distance from the day you 
said that this is an ``overblown personnel matter'' in the USA 
Today article.
    So this is as important a hearing as I can recall, short of 
the confirmation of Supreme Court Justices, more important than 
your confirmation hearing. In a sense, it is a reconfirmation 
hearing. And I await your testimony.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you, Senator Specter.
    What I am going to do, the Chairman and Ranking Member of 
the appropriate Subcommittee, even though we are holding this 
in the full Committee, the Chairman and Ranking Member, Senator 
Schumer and Senator Sessions, we are going to grant 2 minutes 
each to them, first Senator Schumer and then Senator Sessions, 
and then we will go, Attorney General, to your testimony.
    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 join you 
in mourning the losses at Virginia Tech.
    It cannot make anyone happy to have to question the 
credibility and competence of the Nation's chief law 
enforcement officer. This is, however, a predicament strictly 
of the Attorney General's own making, so I would like to make 
three points.
    First, we must get sincere and direct answers from the 
Attorney General. We need clear responses, not careful 
evasions. The Attorney General, as we have all read, has been 
preparing long and hard for this hearing, so I hope and expect 
we will be treated to a minimum of ``I don't recall.'' I hope 
we will not get meandering answers that take up time but do not 
answer the question. After all this time, if the Attorney 
General cannot answer a straightforward, factual question from 
a Senator about recent events, how can he possibly run the 
Department?
    Second, the burden of proof has clearly shifted. Of course, 
we are not going to find an e-mail that says, ``Fire Carol Lam 
because she is prosecuting Duke Cunningham.'' But when there is 
no cogent explanation for most of the firings, when there is 
virtually no documentation to support those decisions, when 
there are mounting contradictions, when there are constant 
coincidences, when those firings occur against a backdrop of 
mishaps, missteps, and misstatements by the highest officials 
at the Justice Department, what are we to think?
    Every lawyer knows that cases are often made without 
finding the so-called murder weapon, but are often made on 
circumstantial evidence. Here, the circumstantial evidence is 
substantial and growing, and the burden is on the Attorney 
General to refute it. If the Attorney General cannot give clear 
and consistent reasons for each firing, then that burden will 
not have been met.
    And, third, and finally, I hope we will not hear the 
Attorney General continually repeat like a mantra, as if it is 
some sort of defense against all inquiry, that the President 
can dismiss a U.S. Attorney for almost any reason. If the 
President suddenly ordered the firing of every U.S. Attorney 
with an IQ over 120 because he did not want smart people in the 
job, he is certainly legally permitted to do so. But a Congress 
that did not challenge such a silly plan would not be doing its 
job, and an Attorney General who would unquestioningly executed 
it should not keep his job. The issue is not whether the 
administration has the legal power to fire U.S. Attorneys. It 
is about how that power has been exercised. Was it used for 
proper, prudent reasons or improper political ones? Was it used 
wisely or crassly? Was it used with the best of intentions or 
the worst?
    We do not know all the facts yet. I hope we learn more 
today.
    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. This is an 
important hearing, and there is politics here, but there are 
some very serious problems, Mr. Attorney General. Having served 
as United States Attorney for 12 years myself and knowing so 
many of those people that have served, they are out there by 
themselves having to make tough decisions, and it is important 
that they feel like the Department of Justice will back them up 
when they are right.
    But they are accountable. They are appointed by the 
President and can be removed by the President. And there are a 
lot of important issues that United States Attorneys must be 
engaged in, such as illegal gun use, corruption, terrorism, 
immigration. They have to be held to account for the 
performance of those duties.
    It is a tough job for United States Attorneys, and I would 
say for the Attorney General, it is a very tough job. Ask John 
Ashcroft. Ask Janet Reno. It is not easy, the job that you 
have. It is a great challenge and a very great responsibility. 
The integrity of the office you hold must be above reproach. I 
know you feel that way. You have said that to me more than once 
and said so publicly. But we have got some questions, and those 
questions have to be answered.
    It does appear that your statements given at the Department 
of Justice at a press conference incorrectly minimized your 
involvement in this matter. I believe that you should have been 
more involved in the entire process. I believe, frankly, you 
should have said no. I do not believe this was a necessary 
process, particularly the way it was conducted.
    I do remember your Chief of Staff toward the end of the 
hearing said this: ``In hindsight, I wish that the Department 
had not gone down this road, and I regret my role in it.''
    I think it has hurt the Department. It has raised questions 
that I wish had not been raised, because when United States 
Attorneys go into court, they have to appear before juries, and 
those juries have to believe that they are there because of 
merit of the case and that they have personal integrity.
    So this matter has taken on a bit of a life of its own, it 
seems. Your ability to lead the Department of Justice is in 
question. I wish that were not so, but I think it certainly is. 
So be alert and honest and direct with this Committee. Give it 
your best shot. You are a good person, and I think that will 
show through.
    Thank you, Mr. Chairman.
    Chairman Leahy. Mr. Attorney General, please stand and 
raise your right hand. Do you solemnly swear that the testimony 
you will give before this Committee will be the whole truth, so 
help you God?
    Attorney General Gonzales. I do.
    Chairman Leahy. Your full statement will be made part of 
the record, and I understand that you have a shortened version 
you wish to give, so please go ahead.

   STATEMENT OF ALBERTO R. GONZALES, ATTORNEY GENERAL OF THE 
              UNITED STATES, DEPARTMENT OF JUSTICE

    Attorney General Gonzales. Good morning. Chairman Leahy, 
Ranking Member Specter, members of the Committee, I, too, want 
to begin by recognizing those who died and were injured on 
Monday. The tragic events in Blacksburg have shocked and 
saddened Americans who have come together this week to grieve, 
to remember, and to try to make sense out of this senseless act 
of violence. I offer my prayers and condolences to the victims, 
their families, and friends.
    I also want to recognize the law enforcement personnel who 
bravely responded to the scene. As I watched Monday's events 
unfold, I was filled with pride watching men and women risk 
their lives and care for victims in the line of duty. Moments 
like these underscore my commitment to the mission of law 
enforcement and the honor that I have to serve as the Nation's 
chief law enforcement officer.
    I have provided the Committee with a lengthy written 
statement detailing some of the Department's work under my 
leadership to protect our Nation, our children, and our civil 
rights. I am proud of our past accomplishments in these and 
other areas, and I do look forward to future achievements.
    I am here, however, to answer your questions, not to repeat 
what I have provided in writing. But before we begin, I want to 
make three brief points about the resignations of the eight 
United States Attorneys, a topic that I know is foremost on 
your minds.
    First, those eight attorneys deserve better. They deserve 
better from me and from the Department of Justice, which they 
served selflessly for many years. Each is a fine lawyer and 
dedicated professional. I regret how they were treated, and I 
apologize to them and to their families for allowing this 
matter to become an unfortunate and undignified public 
spectacle. I accept full responsibility for this.
    Second, I want to address allegations that I failed to tell 
the truth about my involvement in these resignations. These 
attacks on my integrity have been very painful to me. Now, to 
be sure, I have been--I should have been more precise when 
discussing this matter. I understand why some of my statements 
generated confusion, and I have subsequently tried to clarify 
my words. My misstatements were my mistakes, no one else's, and 
I accept complete and full responsibility here as well.
    That said, I have always sought the truth in every aspect 
of my professional and personal life. This matter has been no 
exception. I never sought to mislead or deceive the Congress or 
the American people. To the contrary, I have been extremely 
forthcoming with information. As a result, this Committee has 
thousands of pages of internal Justice Department 
communications and hours of interviews with Department 
officials, and I am here today to do my part to ensure that all 
facts about this matter are brought to light. These are not the 
actions of someone with something to hide.
    Finally, let me be clear about this: While the process that 
led to resignations was flawed, I firmly believe that nothing 
improper occurred. U.S. Attorneys serve at the pleasure of the 
President. There is nothing improper in making a change for 
poor management, policy differences or questionable judgment, 
or simply to have another qualified individual serve. I think 
we agree on that. I think we also agree on what would be 
improper. It would be improper to remove a U.S. Attorney to 
interfere with or influence a particular prosecution for 
partisan political gain. I did not do that. I would never do 
that. Nor do I believe that anyone else in the Department 
advocated the removal of a U.S. Attorney for such a purpose.
    Recognizing my limited involvement in the process, a 
mistake I freely acknowledge, I have soberly questioned my 
prior decisions. I have reviewed the documents available to the 
Congress, and I have asked the Deputy Attorney General and 
others in the Department if I should reconsider.
    What I have concluded is that although the process was 
nowhere near as rigorous or structured as it should have been, 
and while reasonable people might decide things differently, my 
decision to ask for the resignations of these U.S. Attorneys is 
justified and should stand. I have learned important lessons 
from this experience which will guide me in my important 
responsibilities. I believe that Americans focus less on 
whether someone makes a mistake than on what he or she does to 
set things right.
    In recent weeks I have met or spoken with all of our U.S. 
Attorneys to hear their concerns. These discussions have been 
open and frank. Good ideas were generated and are being 
implemented. I look forward to working with these men and women 
to pursue the great goals of our Department. I also look 
forward to continuing to work with the Department's career 
professionals, investigators, analysts, prosecutors, lawyers, 
and administrative staff, who perform nearly all of the 
Department's work and deserve the credit for its 
accomplishments.
    I want to continue working with this Committee as well. We 
have made great strides in protecting our country from 
terrorism, defending our neighborhoods against a scourge of 
gangs and drugs, shielding our children from predators and 
preserving the integrity of our public institutions, and recent 
events must not deter us from our mission.
    I am ready to answer your questions. I want you to be 
satisfied, to be fully reassured that nothing improper was 
done. More importantly, I want the American people to be 
reassured of the same.
    Thank you.
    [The prepared statement of Attorney General Gonzales 
appears as a submission for the record.]
    Chairman Leahy. Thank you, Attorney General. Your former 
Chief of Staff testified under oath about a conversation which 
Karl Rove told you about complaints of former New Mexico U.S. 
Attorney David Iglesias and two other U.S. Attorneys were not 
being aggressive enough against so-called voter fraud. When did 
such a conversation between you and Karl Rove take place?
    Attorney General Gonzales. What I recall, Senator, is that 
there was a conversation where Mr. Rove mentioned to me 
concerns that he had heard about pursuing voter fraud, or 
election fraud, in three jurisdictions--New Mexico, Milwaukee, 
Wisconsin, and Philadelphia, Pennsylvania, as I recall.
    Chairman Leahy. Going back to New Mexico, how many 
conversations about New Mexico with Mr. Rove?
    Attorney General Gonzales. Senator, I can only recall of 
that one conversation.
    Chairman Leahy. Do you recall when that was?
    Attorney General Gonzales. Senator, my recollection was 
that it was in the fall of 2006.
    Chairman Leahy. Do you remember where?
    Attorney General Gonzales. No, sir, I don't remember where 
that conversation took place. And, Senator, I don't recall 
either whether or not it was a phone conversation or it was an 
in-person conversation, but I do have a recollection of that 
conversation.
    Chairman Leahy. So when was David Iglesias added to the 
list of U.S. Attorneys to be replaced?
    Attorney General Gonzales. Of course, Senator, when I 
accepted the recommendation, I did not know when Mr. Iglesias 
was, in fact, added to the recommended list. As I have gone 
back and reviewed the record, it appears that Mr. Iglesias was 
added sometime between, I believe, October 17th and December 
15th, but I was not responsible for compiling that list.
    Chairman Leahy. He was added either before or after the 
elections, but you do not know when; is that what you are 
saying?
    Attorney General Gonzales. Senator, I just responded as to 
when I believe--as I have gone back and looked at the 
documents, it appears he was added sometime between October 
17th and November 15th.
    Chairman Leahy. I understand. But you do not know when?
    Attorney General Gonzales. Senator, I have no recollection 
of knowing when that occurred.
    Chairman Leahy. Do you know why he was added?
    Attorney General Gonzales. Again, Senator, I was not 
responsible for compiling that information. The recommendation 
was made to me. I was not surprised that Mr. Iglesias was 
recommended to me because I had heard about concerns about the 
performance of Mr. Iglesias.
    Chairman Leahy. From?
    Attorney General Gonzales. Certainly, I had heard concerns 
from Senator Domenici.
    Chairman Leahy. And who else?
    Attorney General Gonzales. Senator, certainly--
    Chairman Leahy. And Karl Rove?
    Attorney General Gonzales. I heard concerns raised by Mr. 
Rove, and what I know today--while I don't recall the specific 
mention of this conversation, I recall the meeting--is that 
there was a meeting in October with the President in which the 
President, as I understand it, relayed to me similar concerns 
about pursuing election fraud in three jurisdictions.
    Chairman Leahy. When was that?
    Attorney General Gonzales. Senator, I have gone back and 
looked at my schedule, and it appears that that meeting 
occurred on October 11th.
    Chairman Leahy. Mr. Iglesias has been described by your 
former Chief of Staff as a diverse up-and-comer. He was 
reportedly offered the job as the head of the Executive Office 
of the United States Attorneys for you here in Washington. He 
was selected by the Department of Justice to instruct other 
U.S. Attorneys on investigating and prosecuting voter fraud. 
This past weekend the Albuquerque Journal reported that when 
Senator Domenici told--this is a quote--``Senator Domenici told 
Gonzales he wanted Iglesias out in the spring of 2006.'' You 
refused--I'm quoting now from the article--``and told Senator 
Domenici you would fire Iglesias only on orders from the 
President.'' In your testimony that you provided, you 
characterize Mr. Iglesias as a fine lawyer, a dedicated 
professional, gave many years of service to the Department.
    In your March 7th column in USA Today you wrote that he was 
asked to leave because he simply lost your confidence. When and 
why did he lose your confidence?
    Attorney General Gonzales. Senator, Mr. Iglesias, like 
these other United States Attorneys, I recognize their service, 
I recognize their courage to serve the American people. Mr. 
Iglesias lost the confidence of Senator Domenici, as I recall, 
in the fall of 2005, when he called me and said something to 
the effect that Mr. Iglesias was in over his head, and that he 
was concerned that Mr. Iglesias did not have the appropriate 
personnel focused on cases like public corruption cases. He 
didn't mention specific cases. He simply said public corruption 
cases.
    I don't recall Senator Domenici ever requesting that Mr. 
Iglesias be removed. He simply complained about whether or not 
Mr. Iglesias was capable of continuing in that position.
    Chairman Leahy. With all due respect, Mr. Attorney General, 
my question was not when he may have lost the confidence of 
Senator Domenici, my question is when and why did he lose your 
confidence?
    Attorney General Gonzales. Senator, what I instructed Mr. 
Sampson to do was consult with people in the Department.
    Chairman Leahy. When and why did he lose your confidence?
    Attorney General Gonzales. Based upon the recommendation, 
what I understood to be the consensus recommendation of the 
senior leadership in the Department, that, in fact, there were 
issues and concerns about the performance of these individuals, 
that is when I made the decision to accept the recommendation, 
and in fact, it would be appropriate to make a change in this 
particular district.
    Now, the fact that Mr. Iglesias appeared on the list again 
was not surprising to me because I had already heard concerns 
about Mr. Iglesias's performance.
    Chairman Leahy. In a March 21 op-ed in the New York Times, 
Mr. Iglesias addressed the reasons he believes he was fired, 
and let me just quote from it. These are his words. ``As this 
story has unfolded these last few weeks, much has been made of 
my decision to not prosecute alleged voter fraud in New Mexico. 
Without the benefit of reviewing evidence gleaned from FBI 
investigative reports, party officials in my State have said 
that I should have begun a prosecution. What the critics, who 
don't have any experience as prosecutors, have asserted is 
reprehensible--namely that I should have proceeded without 
having proof beyond a reasonable doubt. The public has a right 
to believe that prosecution decisions are made on legal, not 
political, grounds.''
    Would you agree with that?
    Attorney General Gonzales. I do agree with that.
    Chairman Leahy. Justice Department officials, including 
your principal associate deputy, Mr. Moschella, has said that 
one of the reasons Mr. Iglesias was replaced, was because in 
their words he was an absentee landlord, but I understand he 
continues his service as an officer of the Naval Reserve, and 
in fulfilling his Naval Reserve responsibilities to take him 
out of the office approximately 40 days a year. You are aware, 
I assume, that the Uniformed Services Employment and 
Reemployment Rights Act and other laws prohibit employers from 
denying an individual employment benefits because of their 
military service?
    Attorney General Gonzales. I am aware of that. I support it 
strongly, and we enforce that act.
    Chairman Leahy. When, how and by whom did this absentee 
landlord rationale for replacing Mr. Iglesias arise?
    Attorney General Gonzales. Senator, that rationale was not 
in my mind, as I recall, when I accepted the recommendation. We 
have, of course, several other United States Attorneys who 
perform military service. I applaud it and I support it. It 
would not be a reason that I would ask a United States Attorney 
to leave.
    Chairman Leahy. Let me ask you about absentee landlords. 
You have a Mr. Mercer who is currently serving as your Acting 
Associate Attorney General, and who is U.S. Attorney of 
Montana. The Chief Judge out there has been very, very critical 
of the way that office is run, the fact that he is gone. How 
many days a year does Mr. Mercer stay here serving as your 
Acting Associate Attorney General, rather than the job he was 
confirmed for?
    Attorney General Gonzales. Senator, that is an answer that 
I have to get back to you. But I think every United States 
Attorney--
    Chairman Leahy. Do you have any general idea? I mean is it 
like a week, a year, is it several months a year?
    Attorney General Gonzales. Senator, let me get back with 
you with the most accurate information--
    Chairman Leahy. But he is your Associate Attorney General. 
I mean, you would certainly know whether it was a week a year 
or several months a year, would you not?
    Attorney General Gonzales. Senator, I would like to give 
you that information, but the main point I want the American 
people to understand is that every case is different with 
respect to serving in dual-hat capacities. I have heard no one 
complain about the fact that Pat Fitzgerald was prosecuting--
    Chairman Leahy. I am not talking about Mr. Fitzgerald.
    Attorney General Gonzales.--that case while he was still 
serving as United States Attorney.
    Chairman Leahy. I am talking about an office that the judge 
himself says is in disarray in Montana, and Mr. Mercer has 
testified that he is in Montana just 3 days a month, 3 days a 
month, while he is acting as your Associate Attorney General. I 
just mention that because if we are talking about absentee 
landlords, sometimes absentee landlords are created by your own 
office.
    Attorney General Gonzales. Can I respond to that?
    Chairman Leahy. Certainly, and then it is Mr. Specter's 
time.
    Attorney General Gonzales. In my travels talking to the 
United States Attorneys, I raise this issue whether or not 
dual-hatting continues to be a good idea to a person. I don't 
recall any dissent. They all thought it was good. It was good 
for the U.S. Attorney to get transparency into the Department 
of Justice. They also believed it was important for them to be 
able to call someone they knew working the Department of 
Justice. Every case is different. It may depend upon how strong 
the first assistant is, it may depend upon the strength of the 
other chiefs in that office, so every case is going to be 
different, Senator. So the fact that someone can do it, like 
Mr. Fitzgerald, depends on a lot of different circumstances.
    Chairman Leahy. In my State I would be pretty upset if the 
U.S. Attorney was there only 3 days a month.
    Senator Specter.
    Attorney General Gonzales. And, Senator, your views would 
be very important. I would be interested in knowing what those 
views are.
    Senator Specter. Mr. Attorney General, in my opening 
statement I raised the issue as to whether you had been candid, 
more bluntly truthful in your statements about not being 
involved in ``discussions'', not being involved in 
``deliberations'', not seeing a memoranda. And in your opening 
statement you said two things which appear to me to be carrying 
forward this same pattern of being candid. You said that you 
were only involved to a limited extent in the process, and then 
you say you should have been more precise. It is not exactly a 
matter of precision to say that you discussed the issues or 
were involved in deliberations and decisions, that is just a 
very basic, fundamental fact.
    Let me review some of the record with you, and we do not 
have much time, but it is necessary to go through it in a 
rather summary basis, but I know you are familiar with this 
record because I know you have been preparing for this hearing.
    Attorney General Gonzales. I prepare for every hearing, 
Senator.
    Senator Specter. Do you prepare for all your press 
conferences? Were you prepared for the press conference where 
you said there were not any discussions involving you?
    Attorney General Gonzales. Senator, I have already said 
that I misspoke, it was my mistake.
    Senator Specter. I am asking you were you prepared. You 
interjected that you were always prepared. Were you prepared 
for that press conference?
    Attorney General Gonzales. Senator, I didn't say that I was 
always prepared. I said I prepared for every hearing.
    Senator Specter. What I am asking you, do you prepare for 
your press conferences?
    Attorney General Gonzales. Senator, we do take time to try 
to prepare for the press conference.
    Senator Specter. Were you prepared when you said you were 
not involved in any deliberations?
    Attorney General Gonzales. Senator, I have already conceded 
that I misspoke at that press conference. There was nothing 
intentional. And the truth of the matter is, Senator, I--
    Senator Specter. Let us move on. I do not think you are 
going to win a debate about your preparation, frankly, but let 
us get to the facts. I would like you to win this debate, 
Attorney General Gonzales. I would like you to win this debate.
    Attorney General Gonzales. I apologize, Senator.
    Senator Specter. But you are going to have to win it. This 
is what some of the record shows, and this is according to 
sworn testimony from your former Chief of Staff, Kyle Sampson, 
from the Acting Associate Attorney General, Bill Mercer, and by 
the former Executive Director of the Office of U.S. Attorneys, 
Michael Battle.
    You had a first conversation with Sampson in December of 
2004 about replacing U.S. Attorneys. Then there were 
intervening events, but I will come to some of the highlights. 
On June 1st, 2006, in an e-mail, Sampson described your 
statements on a plan addressing U.S. Attorney Lam's problems 
with the option of removing her. Certainly, sounds like more 
than discussions, deliberations and judgments. I am going to go 
on because I want to give you the whole picture here.
    Then on June 4th or 5th, according to sworn testimony, 
Associate Attorney General Mercer discussed with you Lam's 
performance. Then on June 13th of 2006, Sampson, in sworn 
testimony, said that you were ``almost certainly consulted on 
the removal of Bud Cummins.'' Then in mid October--you have now 
identified a date of October 11th--you went to the White House 
to talk about your vote fraud concerns. Mr. Rove, with the 
President personally, came back, and according to Sampson's 
sworn testimony said: look into the vote prosecution issues, 
including those in New Mexico. That is what Sampson says under 
sworn testimony. Then on November 27th of 2006, you attended a 
meeting on the removal plans, attended by Sampson, Goodling, 
McNulty, Battle, a whole host of people.
    I have just given you a part of the picture as to what 
these three deputies of yours, high-ranking deputies, have said 
that you did on talking about removal, talking about 
replacements. Do you think it is a fair, honest 
characterization to say that you had only a ``limited 
involvement in the process? ''
    Attorney General Gonzales. Senator, I don't want to quarrel 
with you.
    Senator Specter. I do not want you to either, I just want 
you to answer the question.
    Attorney General Gonzales. Sir, I guess it's--I had 
knowledge that there was a process going on. I don't know all 
the--
    Senator Specter. You did not understand there was a process 
going on?
    Attorney General Gonzales. No, I had--sir, I had knowledge 
that there was a process going on.
    Senator Specter. Well, were you involved in it?
    Attorney General Gonzales. Senator, with respect to Carol 
Lam, for example--
    Senator Specter. Were you involved in the process?
    Attorney General Gonzales. I was involved in the process, 
yes, sir.
    Senator Specter. Were you involved to a limited extent 
only?
    Attorney General Gonzales. Yes, sir.
    Senator Specter. How much more could you have been involved 
than to be concerned about the replacement of Cummins, and to 
evaluate Lam, and to be involved in Iglesias? We have not gone 
over the others, but is that limited in your professional 
judgment?
    Attorney General Gonzales. Based on what I thought that I 
understood was going on, yes, Senator. I thought Mr. Sampson--I 
directed Mr. Sampson to consult with senior officials in the 
Department who had information about the performance of United 
States Attorneys. I believe that that was ongoing and that he 
would bring back to me a consensus recommendation. The 
discussion about Ms. Lam, never in my mind, was about this 
review process, and I indicated so in my conversation with Pete 
Williams, I believe on March 26th, is that we were doing this 
process. Of course, there were other discussions outside of the 
review process about the performance of U.S. Attorneys. I can't 
simply stop doing my supervisory responsibilities over U.S. 
Attorneys because this review process is going.
    Senator Specter. Did you tell Mercer to take a look at 
Lam's record with a view to having her removed as a U.S. 
Attorney, or is he wrong?
    Attorney General Gonzales. Senator, I don't recall--
Senator, what I recall is, of course, we had received, the 
Department had received numerous complaints about Carol Lam's 
performance with respect to gun prosecutions and immigration 
prosecutions. I directed that we take a look at those numbers 
because I wanted to know, and I don't recall whether it was Mr. 
Mercer who presented me the numbers, but I recall being very 
concerned.
    Senator Specter. But you were involved in evaluating U.S. 
Attorney Lam's record, were you not?
    Attorney General Gonzales. Senator, I did not view that, I 
did not view that as part of Mr. Sampson's project of trying to 
analyze and understand the performance of United States 
Attorneys for possible removal.
    Senator Specter. Never mind Mr. Sampson's project. Were you 
not involved in the evaluation of U.S. Attorney Lam?
    Attorney General Gonzales. Senator, of course, I was 
involved in trying to understand--
    Senator Specter. Were you not involved in the decision on 
the removal of Arkansas U.S. Attorney Bud Cummins, as Kyle 
Sampson testified?
    Attorney General Gonzales. Senator, I have no recollection 
about that but I presume that that is true.
    Senator Specter. Were you not involved with the decisions 
with respect to U.S. Attorney Iglesias in New Mexico, as you 
have already testified in response to the Chairman's questions?
    Attorney General Gonzales. Senator, I do recall having the 
conversation with Mr. Rove. I now understand that there was a 
conversation between myself and the President, and at some 
point Mr. Sampson brought me what I understood to be the 
consensus recommendation of the senior leadership that we ought 
to make a change in that district.
    Senator Specter. Okay. Now we have to evaluate--and this is 
a final statement before I yield--as to whether the limited 
number of circumstances that I have recited--and it is only a 
limited number, there are many, many more--whether you are 
being candid in saying that you were involved only to a 
limited--you only had a ``limited involvement in the process,'' 
as to being candid and as to having sound judgment, if you 
consider that limited. And as we recite these, we have to 
evaluate whether you are really being forthright in saying that 
you ``should have been more precise'' when the reality is that 
your characterization of your participation is just 
significantly, if not totally, at variance with the facts.
    Attorney General Gonzales. Senator, you are talking about a 
series of events that occurred over possibly 700 days. I 
probably had thousands of conversations during that time. So 
putting it in context, Senator, I would say that my involvement 
was limited. I think that is an accurate statement, that it was 
limited involvement.
    And with respect to certain communications, such as the 
communication with the President, such as the discussions about 
Carol Lam, I did not view that at the time as part of this 
review process. I simply considered those as doing part of my 
job. We had heard complaints about the performance of Ms. Lam. 
I directed the Department to try to ascertain whether or not 
those complaints were legitimate, and if not, we ought to look 
at perhaps doing something about it.
    Senator Specter. The Chairman says I can ask one more 
question. You are saying it is not part of the process, you 
thought it part of your job? Is that what you are saying? If 
you are, I do not understand it.
    Attorney General Gonzales. Senator, I did not consider it 
as part of this project that Mr. Sampson was working on. Simply 
because we had this process ongoing with Mr. Sampson, doesn't 
mean that I quit doing my job as Attorney General and 
supervising the work of the United States Attorneys, and that's 
what I attempted to do.
    Senator Specter. But it was intimately connected with her 
qualifications to stay on.
    Attorney General Gonzales. Senator, of course, in 
hindsight, I look back now that, of course, that that may have 
affected the recommendations made to me, yes, but, Senator, 
when I focused on those complaints, I wasn't thinking about 
this process to remove U.S. Attorneys. I was focusing on a 
complaint that I had received about her performance. That's 
what I was focused on. I wasn't focused on the review process 
itself. I wasn't focused on whether or not her name would go on 
this list. I was focused on making sure that she was doing her 
job. That's what I was focused on.
    Chairman Leahy. So that Senators can focus on where they 
are going to be, the order on the Democratic side will be, 
going back and forth of course, will be Senators Kennedy, Kohl, 
Feinstein, Feingold, Schumer, Durbin, Cardin, Whitehouse and 
Biden. And the list I have from the Republican side, it would 
be Senators Grassley, Cornyn, Brownback, Hatch, Sessions, 
Graham, Coburn and Kyl. And on what I said I would do earlier, 
I take that list from Senator Specter.
    Senator Kennedy.
    Senator Kennedy. Thank you, Mr. Chairman.
    We appreciate, General, your sentiments about this horrific 
tragedy. I think all of us here on the Committee, all 
Americans, know that that is certainly something that is 
hanging over all of our hearts at this very important and sad 
time.
    Just to come back to some themes that have been talked 
about a little bit here earlier during the course of this 
hearing, in your opening statement you indicated, as Senator 
Specter mentioned, that you had a limited involvement and that 
the process was not vigorous. And then you say: my decision is 
justified and should stand.
    Since you apparently knew very little about the performance 
of the replaced U.S. Attorneys, how can you testify that the 
judgment ought to stand? What is the basis for it?
    Attorney General Gonzales. I think that is a fair question, 
Senator. Obviously, when this began I was not the person at the 
Department who had the most information about the performance 
and qualification of U.S. Attorneys. There were many other 
people, particularly the Deputy Attorney General. I challenged 
Mr. Sampson, then my Deputy Chief of Staff, to engage in a 
review. I think it was perfectly appropriate to see where we 
could make changes to benefit the performance of the Department 
of Justice. What I understood and what I expected is he would 
talk to people like the Deputy Attorney General to ascertain 
how U.S. Attorneys were performing.
    And, of course, when the recommendation was presented to 
me, I understood it recommended the consensus view of the 
senior leadership of the Department.
    Senator Kennedy. I am going to ask you, how can you know 
that none of them were removed for improper reasons? How can 
you give us those assurances since you had a limited 
involvement, the process was not vigorous, and you left it 
basically to somebody else?
    Attorney General Gonzales. Well, Senator, since then, of 
course, I have gone back to look at the documents made 
available to Congress. I also had a conversation with--
    Senator Kennedy. This is since then?
    Attorney General Gonzales. Yes, sir.
    Senator Kennedy. But when you made the judgment and 
decision, you did not know, did you?
    Attorney General Gonzales. On December 7th, I know the 
basis on which I made the decision, no reasons that would be 
characterized as improper. I think I was justified--
    Senator Kennedy. But you did not know whether those 
decisions were proper or improper since you have said you had 
limited involvement, the process was not vigorous, and you 
basically gave the assignment to Mr. Sampson, as he testified, 
and you approved?
    Attorney General Gonzales. Senator, I think that I am 
justified in relying upon what I understood to be the 
recommendation, the consensus recommendation of the senior 
leadership. I think as we look through the documents, as you 
glean through the documents, there is nothing improper occurred 
here. You have more information about the testimony of 
witnesses than I do. I'm not aware that anyone based their 
recommendation on improper reasons, but just to be sure, I've 
asked the Office of Professional Responsibility to work with 
the Office of the Inspector General at the Department of 
Justice to ensure that nothing improper happened here.
    Senator Kennedy. Getting back to the time that you made the 
judgment and decision, you did not really know the actual 
reasons when you approved the removal, did you, at the time?
    Attorney General Gonzales. Senator, I have in my mind a 
recollection as knowing as to some of these United States 
Attorneys. There are two that I do not recall knowing in my 
mind what I understood to be the reasons for the removal. But 
as to the others, I recall knowing the reasons why. 
Independently I was not surprised to see their names 
recommended to me because through my performance as Attorney 
General I have become aware of specific issues related to 
performance.
    Senator Kennedy. We are reminded that the documents do not 
show any clear rationale for the firings.
    I want to come back to how you can say in your opening 
statement that the Department of Justice makes decisions based 
on evidence. That certainly was not the case with regard to 
your judgment and decisions with regard to these firings. As I 
understand, you said you had limited involvement, the process 
was not vigorous. In response to Senator Leahy, you said that 
you were not responsible for compiling information. How can you 
give a blanket statement that the Department of Justice makes 
decisions based on evidence when you did not have the rationale 
for the firings of these individuals at the time that they were 
fired?
    Attorney General Gonzales. Senator, that statement related 
to our decision with respect to prosecutions, but with respect 
to what happened here, I believe that I had a good process when 
this began.
    Senator Kennedy. Let me ask about the process, if I could, 
please. The Department of Justice has a process--it is called 
the EARS process--for the evaluation of U.S. Attorneys. It has 
been there for years and years. Am I correct that the 
Department of Justice's periodic, comprehensive evaluation of 
U.S. Attorneys is called EARS reports for Evaluation and Review 
Staff reports?
    Attorney General Gonzales. Senator, that evaluation is an 
evaluation that occurs of United States Attorneys Offices. It 
occurs every 3 or 5 years. It is a peer review, Senator. It is 
a review conducted by Assistant United States Attorneys.
    Senator Kennedy. I am asking you, Did you have an 
opportunity, since it does review the performance of U.S. 
Attorneys, did you have an opportunity to review that document 
which is the standard document for the Justice Department in 
the evaluation of U.S. Attorneys?
    Attorney General Gonzales. Senator, I did not review the 
document, but, however, it would be just one of many factors, I 
think, that should be appropriately considered in evaluating 
the performance of United States Attorneys. Just one of many 
factors.
    Senator Kennedy. Let me ask you some others. Did you speak 
personally with any of the replaced U.S. Attorneys about their 
performance? Have you at this time talked to any of the U.S. 
Attorneys who were--
    Attorney General Gonzales. Who were replaced?
    Senator Kennedy. Yes.
    Attorney General Gonzales. I have spoken with Mr. Bogden.
    Senator Kennedy. He is the only one?
    Attorney General Gonzales. He is the only one, yes.
    Senator Kennedy. Did you speak with any of the Assistant 
U.S. Attorneys in the affected offices of the U.S. Attorneys? 
Did you talk to any of the Assistant U.S. Attorneys, those that 
are serving with the U.S. Attorneys that have been replaced? 
Did you speak with any of them?
    Attorney General Gonzales. I certainly did it with respect 
to San Diego. There may be Assistant United States Attorneys 
who may be serving as the Acting U.S. Attorney that I may have 
met with in connection with my visit to visit with United 
States Attorneys after--sometime in the weeks of March 12th and 
thereafter.
    Senator Kennedy. So you may have met with someone that was 
in one of the offices?
    Attorney General Gonzales. I believe that I probably met 
with everyone who is serving in the affected offices, who is 
serving in the Acting U.S. Attorney capacity, and certainly 
with respect to San Diego, I did visit the San Diego office, 
and I spoke to the--
    Senator Kennedy. This is before the firings?
    Attorney General Gonzales. No, sir. This was well after the 
firings.
    Senator Kennedy. Did you perform any systematic review of 
the effect of the ongoing prosecutions of removing U.S. 
Attorneys? What would be the impact on ongoing prosecutions 
that those U.S. Attorneys were involved in? Did you do an 
evaluation of that?
    Attorney General Gonzales. Senator, I think that is a good 
question. I think it is important for the American people to 
understand that prosecutions are done primarily by Assistant 
United States Attorneys. Obviously, U.S. Attorneys are 
important. They provide leadership. They establish morale. But 
this institution is built to withstand change and departures in 
leadership positions. And so if we have information about a 
particularly important public corruption case, that would be 
something we would consider. But if we did not have information 
about a public corruption case and we were contemplating 
changes, would it be wise to reach into the division and get 
information about that case? I don't believe that would be a 
good idea.
    Senator Kennedy. My time is just about wrapped up. Did you 
speak with others in the Department about the performance of 
any of these U.S. Attorneys--individually, did you? Did you 
speak to anyone else in the Department of Justice about any of 
these U.S. Attorneys, about their performance, prior to the 
time that they were fired, other than Mr. Sampson?
    Attorney General Gonzales. Yes, sir.
    Senator Kennedy. Who?
    Attorney General Gonzales. Senator, I don't recall in 
connection with this review process that Mr. Sampson was 
engaged in, but obviously, issues came up with respect to Ms. 
Lam and her performance. And I recall a meeting at the 
Department. I don't recall everyone who was there, but I do 
recall a discussion about the numbers. And, again, Ms. Lam is a 
wonderful prosecutor and I acknowledge her service, but I had 
genuine concerns about her efforts in pursuing gun prosecutions 
and particularly her effort with respect to immigration 
prosecutions. This is a very important border district, and 
given the current debate about immigration reform, I felt that 
we should do better, much better in this district. And, yes, 
there was some discussion with others about Ms. Lam.
    Senator Kennedy. My time is up. Thank you.
    Attorney General Gonzales. Senator, there may have been 
other discussions. I don't want to leave you with the 
impression those were the only discussions.
    Chairman Leahy. Thank you.
    I am advised that Senator Grassley has stepped out and is 
going to a funeral. Senator Brownback, on the list I have from 
Senator Specter, you are next.
    Senator Brownback. Thank you very much, Mr. Chairman.
    Welcome, Attorney General. I would like to get just a 
series of facts out on the table on why this list of U.S. 
Attorneys out of the 93 were terminated. You have talked 
already some about David Iglesias and Carol Lam. You just 
addressed some of the reasons there. And I recognize, as you 
state, that these are people that serve at the will and at the 
pleasure of the President, so you can terminate them for cause, 
without cause, whatever it might be. But it appears you have 
come today prepared to discuss the reasons for the termination 
of these various U.S. Attorneys, and I think it is important 
that we find out what those reasons are, given the allegation 
that a number of them were fired for inappropriate reasons.
    So I want to just go down the list with you, if I could. 
Daniel Bogden of Nevada, why was he terminated?
    Attorney General Gonzales. Senator, this is probably the 
one that to me, in hindsight, was the closest call. I do not 
recall what I knew about Mr. Bogden on December 7th. That is 
not to say that I was not given a reason. I just don't recall 
the reason. I didn't have an independent basis or recollection 
of knowing about Mr. Bogden's performance.
    Since then, going back and looking at the documents, it 
appears that there were concerns about the level of energy 
generally in a fast-growing district, concerns about his 
commitment to pursuing obscenity, which is important for the 
Department. It is a law. We have an obligation to pursue it. 
And just generally getting a sense of new energy in that 
office.
    Now, in hindsight--and I had a discussion with the Deputy 
Attorney General on the evening of Mr. Sampson's testimony, 
because I went to the Deputy Attorney General and I asked him, 
Okay, do we stand behind these decisions? And if you look at 
some of the documents, you can see that the Deputy Attorney 
General agonized over this one. And I think that is good. That 
is a good thing that we are thinking about what is the effect 
of making this kind of decision on people. But at the end of 
the day, we felt it was the right decision.
    Now, I regret that we didn't have the face-to-face meeting 
with Mr. Bogden beforehand and let him know. And one of the 
things I have learned is that the Department does not have, has 
not had a good enough mechanism, in my judgment, to communicate 
with United States Attorneys. There should be at least one 
face-to-face meeting, at least, with the U.S. Attorney and with 
the Deputy Attorney General or the Attorney General. So if we 
are aware of concerns or if we have concerns, we can convey 
those to the U.S. Attorney. And my regret with respect to Mr. 
Bogden is that, in fact, that meeting did not occur.
    Nonetheless, in thinking about it, I believe it was still 
the right decision. However, because of the fact that Mr. 
Bogden was not notified of the decision, I did talk to Mr. 
Bogden, as I indicated that I had. And what I offered to Mr. 
Bogden was my help in securing employment moving forward. If 
there was anything that I could to help him, I wanted to do 
that because I struggled as well over this decision.
    Senator Brownback. Paul Charlton in Arizona, and if you 
could be as concise as possible, I would appreciate that. But I 
want to give you a chance to say why.
    Attorney General Gonzales. What I recall about Mr. 
Charlton, when the recommendation was made to me, is I recalled 
knowing of his poor judgment in pushing forward a 
recommendation on a death penalty case. These kinds of 
decisions, of course, are very, very important, and I take them 
very seriously. But we have a process in place to carefully 
evaluate death penalty decisions of the Department around the 
Nation.
    Obviously, the views of the local prosecutor are very, very 
important. I made a decision around, I believe, May 15th, 
somewhere around there, about a particular case, and he came 
back to me 2 months later, first going through the Deputy 
Attorney General's Office and then back to me to have me 
reconsider the case. And I am not aware of any new facts here, 
but the Deputy Attorney General, the Capital Unit Review 
Committee has already made a recommendation to me about this 
particular case. I had already made a decision on this 
particular case.
    Since the decision on December 7th, I have also learned 
that he exercised poor judgment in the way he pushed forward a 
policy with respect to interviewing of targets. He wanted to 
record those interviews. He implemented that policy on his own 
without consideration of how it would affect other offices 
around the country, without consideration of how the other 
units like the FBI would feel about it.
    In hindsight, there may be good reasons to pursue such a 
policy, but to implement it unilaterally on his own, in my 
judgment, I considered was poor judgment, but that is something 
that I became more familiar about as I have studied the 
documents.
    Senator Brownback. Kevin Ryan, Northern District of 
California.
    Attorney General Gonzales. I was not surprised to see Mr. 
Ryan on the list, and, again, it is difficult for me to talk 
critically about these individuals who served our country, but 
you are asking me these questions. I was aware, as a general 
matter, about poor management in that office. There was 
disruption. Mr. Ryan had lost confidence in some career 
prosecutors. We had to send out a second EARS team out to that 
office to try to get an understanding of the sources of 
complaints that we were hearing. So, in essence, I would say it 
is a question of poor management.
    Senator Brownback. Margaret Chiara of the Western District 
of Michigan.
    Attorney General Gonzales. Same issue. She is the other 
person, quite candidly, Senator, that I don't recall 
remembering--I don't recall the reason why I accepted the 
decision on December 7th. But I have since learned that it is a 
question of similar kinds of issues: poor management issues, 
loss of confidence by career individuals. We had to send 
someone out from Main Justice to help mediate some kind of 
personnel dispute. So it was a question simply of someone not 
having total control of the office.
    Senator Brownback. H.E. Bud Cummins of Arkansas.
    Attorney General Gonzales. Mr. Cummins obviously is someone 
who was on a different track, and because he was on a different 
track and was asked to resign on June 14th and not December 
7th, there has been some confusion about Mr. Cummins, was he 
part of the seven. He was asked to resign on June 14th. I 
myself was confused, quite frankly, when I testified on January 
18th. I had forgotten that, in fact, Mr. Cummins had been asked 
to resign on June 14th, and the reason I did is because Mr. 
Cummins left basically the same time as everyone else did.
    Mr. Cummins was asked to resign because there was another 
well-qualified individual that the White House wanted to put in 
place there that we supported because he was well qualified. I 
also understand--this is after the fact--that, in fact, Mr. 
Cummins had expressed a desire--and I do not want to put words 
in his mouth because I think he may have testified, maybe not--
he has testified about this, but there was a newspaper article 
that appeared in the Arkansas Times indicating that because of 
having four kids he had to put through college, don't be 
shocked if he didn't serve the rest of his term. So it was a 
question of seeing that there may be a vacancy coming up and 
having a well-qualified candidate to go in that office.
    Senator Brownback. John McKay, Western District of 
Washington.
    Attorney General Gonzales. Mr. McKay, when I accepted the 
recommendation on December 7th, generally I recall there being 
serious concerns about his judgment. That is what I recall when 
I accepted the recommendations, and what I have since learned, 
of course, is that it related to an information-sharing 
project. It is not the way that he--it is not that he pursued 
this. We expected him to. He was doing a good job with respect 
to that. It is the way he pursued it and exercising poor 
judgment that involved some of his colleagues and a letter that 
he sent to the Deputy Attorney General, that his colleagues 
would not have signed on the letter if they had known the 
Deputy Attorney General would not welcome the letter. And he 
nonetheless asked them for their signature, and the Deputy 
Attorney General was surprised by the letter. It angered his 
colleagues, it angered the Deputy Attorney General, and it was 
an indication of poor judgment.
    There was also an instance where he gave an interview in 
Washington where he basically told our State and local 
partners, Don't come to me for any more help in terms of 
partnerships because I just don't have the resources to do it. 
That was inappropriate. If, in fact, there were concerns about 
resources, he should come to us, try to let us help him with 
it. But to go out and give an interview and tell State and 
local partners, Don't come to us because we can't help any 
more''--and I am paraphrasing here. I want to be fair to Mr. 
McKay. That also demonstrated poor judgment.
    Senator Brownback. Thank you for giving the information on 
each of these; I am glad to hear the factual basis. I hope we 
can get into that more during this hearing, and I hope too that 
as this wears on, there is a chance for you to reach out to 
some of these individuals as well, as you have discussed, I 
guess, with Mr. Bogden in Nevada. I think that is something 
that would be useful as well.
    Attorney General Gonzales. Thank you, Senator.
    Senator Brownback. Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    I am just curious on one thing. You said, if I understand 
your answer to the question from Senator Brownback, that on 
Cummins, when you had testified on the 18th, you had overlooked 
what had happened on the 17th. Did you ever send a followup to 
that testimony to clarify the issue?
    Attorney General Gonzales. Senator, I don't recall sending 
a follow-up. Quite frankly, I think if you look carefully--I 
don't know if there was a misstatement or a mistake in my 
testimony.
    Chairman Leahy. Because witnesses often do correct their 
testimony afterward. We always leave the record open so people 
can do that.
    Attorney General Gonzales. Senator, there was a specific 
question about Mr. Cummins, and I did not indicate that the 
reason for Mr. Cummins was because there was another well-
qualified individual.
    Chairman Leahy. Senator Kohl.
    Senator Kohl. Thank you, Mr. Chairman.
    Mr. Gonzales, there have been allegations that voter fraud 
and public corruption cases have been influenced by partisan 
political considerations in my State of Wisconsin. We have seen 
documents showing State party efforts, Republican party efforts 
to influence these type of prosecutions routed through Karl 
Rove's office directly into the office of your former chief of 
staff.
    So, Mr. Attorney General, was Mr. Steve Biskupic, U.S. 
Attorney in the Eastern District of Wisconsin, ever on the list 
of U.S. Attorneys who were to be dismissed? It has been 
reported in the papers, both in the Washington Post and the 
Milwaukee Sentinel, that he was to be fired, but the Justice 
Department has not made public any documents to show that?
    Attorney General Gonzales. Senator, I was never aware that 
Mr. Biskupic was on a list, obviously, when I made my decision. 
I am aware that he may have appeared in a category which would 
indicate that there were concerns about Mr. Biskupic. But I 
think he has already issued a press release saying he never 
knew about that and that it never would have influenced and did 
not influence any decisions that he made with respect to cases 
in Wisconsin.
    Senator Kohl. I appreciate that, but the question is: Was 
he on a list of U.S. Attorneys who were being considered for 
dismissal?
    Attorney General Gonzales. Senator, I believe I testified 
that I believe that he was listed as someone, yes, that--
    Senator Kohl. So my question is: Why was he then taken off 
the list?
    Attorney General Gonzales. Senator, again, this was a 
process that was ongoing, that I did not have transparency 
into. I don't recall being--transparency with respect to Mr. 
Biskupic. I don't recall being aware of discussions about Mr. 
Biskupic. Mr. Biskupic is a career prosecutor. He was appointed 
United States Attorney through a bipartisan panel. With respect 
to the case I think everyone is focused on, he made charging 
decisions after consulting with the then Democratic State 
Attorney General and consulting with the Democratic local 
prosecutor, and he believed it was the best--his best judgment 
to charge that case based on the evidence.
    Senator Kohl. I do appreciate that, but I am trying to 
understand why he would have been on a list and then taken off 
a list. There must have been a reason for one and then the 
other.
    Attorney General Gonzales. Senator, with all due respect, 
there are other people that would have that information that 
are witnesses, fact witnesses. I have not consulted with them 
because I did not in any way want to compromise the integrity 
of this investigation or the investigation at the Department.
    Senator Kohl. That is fine. Could you get back to me within 
a week with respect to the question of why he was on the list 
and then why he was taken off the list?
    Attorney General Gonzales. With all due respect, Senator, 
the person who was responsible for compiling the list was Mr. 
Sampson, and he is the person that would have the answer as to 
why--he would be the best person as to why Mr. Biskupic was on 
a list or off a list or anybody else that was on or off a list.
    Senator, I will go back and see if there is something that 
I can do, but I want to be very careful about talking to fact 
witnesses, and I am not going to do that. I don't want to 
compromise the integrity of this investigation or the integrity 
of the Department investigations.
    Senator Kohl. Mr. Attorney General, once appointed by the 
President, confirmed by the Senate as Attorney General, we all 
understand that you are expected to cast aside all partisan 
politics and serve only the interests of justice and of the 
American people. The Justice Department is expected to 
investigate and prosecute those who violate our laws completely 
blind to their partisan political affiliation. Public 
confidence in your fidelity to these ideals, of course, is 
essential. Without the public's confidence in the impartial 
administration of justice, our entire judicial system is called 
into question.
    Sadly, your actions have severely shaken the confidence of 
the American people in you and in your ability to fulfill your 
public trust. According to recent polls, as many as 67 percent 
of Americans believe that these eight U.S. Attorneys were fired 
for political reasons, and over half of the American people 
believe that you should resign. Moreover, press accounts have 
detailed low morale among U.S. Attorneys across the country as 
a result of these events.
    I am sure we can agree that the integrity of the Office of 
the Attorney General as an institution is more important than 
the self-preservation of any one person who sits in it. Many 
Americans wonder, therefore, what is the rationale for you to 
remain as the Attorney General. Given the low morale, the 
history of mismanagement, the apparent lack of independence 
from the White House, and, most importantly the taint of 
politics trumping justice in your tenure, would you explain to 
the American people why it is so important that you should 
remain in this office?
    Attorney General Gonzales. Let me first address the 
question about taint of politics, and let me just start with an 
example, Senator.
    Six weeks before the election, this Department took a plea 
from Congressman Bob Ney. Six weeks before the election. We 
could have taken the plea after the election, and I am sure 
when we took that plea, there were some Republicans around the 
country probably scratching their heads wondering: What in the 
world are they doing?
    Well, what we are doing is doing what is best for the case. 
That is what we did. We don't let politics play a role, 
partisan politics play a role in the decisions we make in 
cases. And we have prosecuted Members of Congress, we have 
prosecuted Governors, Republicans. And so this notion that 
somehow we are playing politics with the cases we bring is just 
not true, and the American people need to understand that, 
because when you attack the Department for being partisan, you 
are really attacking the career professionals. They are the 
ones, the investigators, the prosecutors, the Assistant U.S. 
Attorneys, they are the ones doing the work. And so when 
someone says that we politicize a case, what you are doing is 
criticizing the career folks, and that is not right.
    In terms of why I should remain as Attorney General, you 
are right, this is not about Alberto Gonzales. This is about 
the Department of Justice and what is best for the Department. 
And as I look back over the past 2 years, I look back with 
pride in the things that we have accomplished--a lot of good 
things with respect to protecting our kids, protecting our 
neighborhoods, protecting our country.
    I have admitted mistakes in managing this issue, but the 
Department as a general matter has not been mismanaged. We have 
done great things, and we will continue to do great things. And 
I will work as hard as I can to improve morale.
    Obviously, this was an unfortunate incident for the 
Department, but the work of the Department continues, and it's 
very important for the American people to understand that. 
Cases are still being investigated, cases are still being 
prosecuted, because these are career folks and all what they 
care about is making sure justice is done. And that's what I 
care about, and I've instructed every United States Attorney, I 
don't want an investigation or a prosecution sped up or slowed 
down because of what has happened here. I expect everyone at 
the Department of Justice to do their job, and it continues.
    Senator Kohl. Well, I appreciate that. The point is still, 
I believe, that at the moment, two-thirds of the American 
people believe that these U.S. Attorneys were fired for 
partisan political reasons, and over half of the American 
people believe that we would be better off if you resign.
    Now, I am sure you would agree that the perception of the 
American people with respect to the Attorney General and his 
position and his impartiality in the dispensation of justice is 
critical. If after these hearings are over, if a week or two or 
three from now the American people still feel that way, how 
would you then feel about the importance of your tenure as the 
Attorney General of the United States?
    Attorney General Gonzales. Senator, I have to be--I have to 
know in my heart that I can continue to be effective as the 
leader of this Department. Sitting here today, I believe that I 
can. And every day I ask myself that question: Can I continue 
to be effective as leader of this Department? The moment I 
believe I can no longer be effective, I will resign as Attorney 
General.
    Senator Kohl. Yes, and if the American public's perception 
is negative, how does that impact your perception?
    Attorney General Gonzales. Senator, part of my goal today 
is to educate and information the American public about what 
happened here. The notion that there was something that was 
improper that happened here is simply not supported by the 
documents. I do not think it is supported by the testimony, 
much of which of it I haven't seen. It's certainly not the 
reason that I asked for these resignations. And I have tried to 
reassure the American public I am committed to getting to the 
bottom of this. I can't interfere with this investigation, but 
I've asked the Office of Professional Responsibility to work 
with the Office of the Inspector General and let's find out 
what happened here. If, in fact, someone did something, made a 
recommendation for improper reasons, yes, there is going to be 
accountability. Absolutely.
    Senator Kohl. Thank you very much, and thank you, Mr. 
Chairman.
    Chairman Leahy. Thank you.
    I should note, just for the audience, we have people here 
both supporters of the Attorney General and opponents of the 
Attorney General. You are guests of the U.S. Senate, and nobody 
is more protective of First Amendment rights than I. But if 
signs are being held up and are blocking the views of people, I 
don't care whether the signs are for the Attorney General or 
opposed to the Attorney General, if signs are being held up, 
blocking the views of others who have just as legitimate a 
right to be here as everyone else, the people doing that will 
be removed.
    We are going to go to Senator Hatch, and then I am going to 
go to Senator Feinstein, and then we will take a 10-minute 
break. Thank you.
    Senator Hatch.
    Senator Hatch. Well, thank you, Mr. Chairman. Welcome, Mr. 
Attorney General.
    Mr. Attorney General, do you make decisions at the Justice 
Department based upon the polls?
    Attorney General Gonzales. No, sir, I don't.
    Senator Hatch. No, you don't, do you?
    Attorney General Gonzales. Senator, I make decisions on 
what the case is based on the evidence, not based upon whether 
or not the target is Republican or Democrat. And, of course, I 
have been appointed by the President, confirmed by the Senate, 
to make the decisions based on my best judgment.
    Senator Hatch. I take it not whether it favors you or 
disappoints you?
    Attorney General Gonzales. Sometimes, Senator, in doing my 
job I am going to make people unhappy.
    Senator Hatch. On March 19th, one of my Democratic 
colleagues said that he would be surprised if you were Attorney 
General a week later. Well, I am glad to see you here a month 
later, personally, because we have worked rather extensively 
together, and I have seen an awful lot of good work done there 
that you have been describing to a degree here today. And you 
cannot even begin to touch all the good things that have been 
done.
    You have said here today that you want to help Congress and 
the public understand what happened in the removal of these 
U.S. Attorneys. Your actions back up your words. I applaud you 
for making available the Justice Department's top officials and 
staff for testimony and interviews, as well as thousands and 
thousands of pages of documents. I am afraid that some simply 
do not want to go where the evidence tells us to go. Some 
appear to have decided in our country today instead where they 
want to go, and they are fishing for anything that they can 
claim will back up their preconceived conclusions.
    Now, it is one thing to conduct legitimate oversight over 
matters that are a subject of legislative concern. It is 
another to traipse around on ground committed by the separation 
of powers to another branch of Government. I think that is what 
has been going on here, and I think it is unfortunate and I 
think it is wrong.
    You have stated this before, but let me ask you just once 
more for the record, because this is important. Were any of 
these eight U.S. Attorneys asked to resign in retaliation for 
or to interfere with any case that they brought or refused to 
bring?
    Attorney General Gonzales. That is not the reason I asked 
for the resignations, Senator. From everything that I have seen 
and heard--
    Senator Hatch. Then the answer is no.
    Attorney General Gonzales.--I don't think any one was 
motivated for that reason.
    Senator Hatch. Okay. How many employees do you have at the 
Department of Justice?
    Attorney General Gonzales. Around 110,000.
    Senator Hatch. Around 110,000 employees. What are the main 
core functions of the Department of Justice that you supervise?
    Attorney General Gonzales. Well, we enforce the law. We 
prosecute cases in our Federal courts. The FBI is the lead 
investigatory agency in the country. We have--
    Senator Hatch. You overview the FBI.
    Attorney General Gonzales. Pardon me?
    Senator Hatch. You overview the FBI.
    Attorney General Gonzales. The FBI comes within the 
jurisdiction of the Department of Justice. We have the Drug 
Enforcement Agency. We have the Bureau of Prisons. We have 
Alcohol, Tobacco, and Firearms involved, along with the FBI 
with respect to the tragedy that happened down at Blacksburg. 
And so there are many very, very important divisions that exist 
within the Department of Justice family that contribute to the 
core mission of the Department of ensuring that our laws are 
enforced and that justice is, in fact, delivered here in our 
country.
    Senator Hatch. You spend a lot of time traveling in the 
country as well, don't you?
    Attorney General Gonzales. I do. I think it's important to 
go out and see the components. One of the things I really enjoy 
is to visit folks in the United States Attorney Offices. I like 
to go by and visit the United States Attorneys. I like to speak 
with the staff, express to them how important they are, let 
them know that really the success of the Department is not the 
Attorney General. It is not the United States Attorney. It is 
the career investigators, the career professionals.
    Senator Hatch. You spend a lot of time down at the White 
House as well, do you not?
    Attorney General Gonzales. I don't spend as much time as I 
used to spend at the White House.
    Senator Hatch. What about the Cabinet meetings?
    Attorney General Gonzales. Of course, I'm there at Cabinet 
meetings, and I'm there for policy discussions and where 
there's a need for me to be at the White House. As Andy Card 
once used to say, if you need to see the President, you see the 
President, if you want to see the President, you don't see the 
President because his time is so valuable.
    Senator Hatch. If the President wants to see you, you are 
on call, right?
    Attorney General Gonzales. Of course.
    Senator Hatch. You go to intelligence meetings, right?
    Attorney General Gonzales. That is correct.
    Senator Hatch. Among various intelligence factions of 
Government.
    Attorney General Gonzales. Yes. From time to time we do 
have meetings relating to threats to United States' interests 
overseas, and of course, threats to the homeland.
    Senator Hatch. In fact, I have been in some of those 
intelligence meetings with you in the secure room in the White 
House, right?
    Attorney General Gonzales. We do have intelligence 
briefings from time to time in the Situation Room, yes, sir.
    Senator Hatch. Many of our fellow citizens may not have an 
accurate picture of what Federal prosecutors do or their 
relationship with the Justice Department here in Washington, 
what we call Main Justice. I think many people probably see 
U.S. Attorneys as something like independent contractors, able 
to call their own shots, set their own priorities, follow their 
own policies. There might also be another kind of 
misunderstanding in the other direction when people hear it 
said that U.S. Attorneys are political appointees. That makes 
understanding all of this much harder for our fellow citizens 
who have been characterized here today.
    I would like you to help dispel these myths a little by 
describing what the roles and the relationships should be 
between the U.S. Attorneys around the country and the Justice 
Department, which ultimately means you and the President here 
in Washington.
    Attorney General Gonzales. Senator, United States Attorneys 
are accountable to the President through me. We are accountable 
to the American people, and there has to be real 
accountability. Obviously, with respect to decision relating to 
prosecutions, U.S. Attorneys should have and do enjoy 
independence in exercising their judgment as to what cases to 
move forward with or not.
    But with respect to policy, a President and the Attorney 
General, we are accountable to the American people. The 
President is elected based upon a set of his policies, his 
priorities, and the only way to get those implemented is 
through the U.S. Attorney, and it's important that the United 
States Attorney support the policies and priorities of the 
President of the United States.
    Now, obviously, within each specific district, there are 
going to be specific needs and priorities that are local, and 
the U.S. Attorney has to find a way to accommodate those local 
needs and priorities as well as the national needs and 
priorities because those are important to the President of the 
United States, and the U.S. Attorney is a member of the 
President's team, is subordinate and is accountable to the 
President, and the President is accountable to the American 
people for his policies and for his priorities.
    Senator Hatch. I want to give you a fuller opportunity to 
explain your involvement in the process leading up to asking 
these U.S. Attorneys to resign. You made an important 
distinction which makes your description perfectly reasonable. 
You distinguished between the general supervision of U.S. 
Attorneys in which your involvement was extensive, and the 
specific evaluation for identifying who should resign in which 
your involvement was limited. Now this is an obvious 
distinction and an important distinction. Did I describe it 
accurately?
    Attorney General Gonzales. That is correct, Senator. I had 
in my mind this process that Mr. Sampson was coordinating, but 
obviously, from time to time issues would come up with respect 
to the performance of United States Attorneys that in my mind I 
viewed as simply doing my job as the Attorney General to deal 
with a concern or a complaint relating to performance of that 
United States Attorney. I do not in my mind view that as, Okay, 
that person goes on the list, because I relied upon Mr. Sampson 
to coordinate an effort to consult with senior officials and 
make a decision as to where there were issues and concerns 
relating to performance. But the fact that I delegated this 
task to Mr. Sampson doesn't mean that I abdicate my 
responsibility as Attorney General to field complaints and to 
review and address concerns about the specific issues relating 
to a United States Attorney. And so, yes, in my mind, those 
were separate and apart.
    Senator Hatch. My time is up, Mr. Chairman.
    Chairman Leahy. Thank you, Senator Hatch.
    What we will do, I am going to go now to Senator Feinstein, 
then take a 10-minute break. I am calling Senator Feinstein. As 
I mentioned earlier, Senator Grassley is at a funeral. If he is 
back, he would be next in line. If not, Senator Cornyn or 
Senator Sessions, depending upon which one is here.
    Senator Feinstein.
    Senator Feinstein. Thank you very much, Mr. Chairman.
    I have essentially three questions that I would like to ask 
you, Mr. Attorney General. Let me go back. Whose idea was it to 
change the law in an amendment written by your staff, conveyed 
by your staff, Mr. Moschella, to Senator Specter's staff, Brett 
Tolman, on or about November 15th, 2005, to add in conference, 
without sharing it with any Member of this Committee, an 
amendment which effectively gave you the ability to replace 
U.S. Attorneys without Senate confirmation? Whose idea was 
this?
    Attorney General Gonzales. Senator, I don't recall 
specifically the genesis of the idea. In going back and looking 
at the documents, it appears that there was some thinking about 
this as early as 2004. I will say this, I do support, I did 
support the change in the law, not in order to avoid Senate 
involvement, but because I, quite frankly, do not like the idea 
of the Judiciary deciding who serves on my staff, and that's 
why I supported the law.
    Senator Feinstein. So you essentially approved it being 
conveyed to the Senate in the manner in which it was conveyed?
    Attorney General Gonzales. No, that's not what I'm saying. 
I don't have any recollection about the mechanics of getting 
it--of the legislative process.
    Senator Feinstein. So you do not have a recollection. Let 
me go on because my time is short. I am very confused. I am 
unsure whether you were really the decider on this list or not 
because your written comments, printed yesterday, say, ``I did 
not make decisions about who should or should not be asked to 
resign.'' Today you said three different things: I accepted the 
decision of the staff; I accepted the recommendations of the 
staff; and then sort of a vague statement, I made my decision. 
Who was the decider?
    Attorney General Gonzales. Senator, I accepted the 
recommendations made by the staff. I'm the Attorney General. I 
make the decision. Can I see what you're reading from? You 
referred to statements from yesterday. I don't recall making 
any--
    Senator Feinstein. Something entitled Statement of Alberto 
Gonzales.
    Attorney General Gonzales. Oh, the written statement.
    Senator Feinstein. The written statement, the top of page 
4.
    Attorney General Gonzales. Okay.
    Senator Feinstein. So in writing, you clearly say: I did 
not make decisions about who should or should not. I guess, one 
of the problems is that all of this has been kind of constant 
equivocation. Apparently--
    Attorney General Gonzales. Senator, you're not reading my 
entire statement. Maybe you did, I'm sorry. During those--Mr. 
Sampson periodically updated me on the review. As I recall, his 
updates were brief, relatively few in number, and focused 
primarily on the review process itself. During those updates, 
to my knowledge, I did not make decisions about who should or 
should not be asked to resign, so in connection with this 
review process, as Mr. Sampson gave me updates, I don't recall 
ever saying--even though they were still in deliberative 
process, ever saying, no, take that person off, or add this 
person. I don't recall ever doing that.
    Now, certainly, after the work had been completed, Mr. 
Sampson brought me recommendations. I accepted those 
recommendations. Those were my decisions. I accept full 
responsibility for those decisions.
    Senator Feinstein. That is what I wanted to know.
    Attorney General Gonzales. Yes.
    Senator Feinstein. You are prepared to say that you made 
the decision to fire these 7 U.S. Attorneys on that day, 
December 7th?
    Attorney General Gonzales. Senator, I don't recall whether 
or not I made the decision that day. I don't--
    Senator Feinstein. I am not saying that day.
    Attorney General Gonzales. No, that was your question.
    Senator Feinstein. Mike Battle made the phone calls that 
day.
    Attorney General Gonzales. Mr. Battle made phone calls that 
day. I made a phone call to Senator Kyl. Yes, phone calls were 
made that day. I don't recall exactly when I made the decision.
    Senator Feinstein. You are testifying to us that you made 
the decisions without ever looking at the performance reports?
    Attorney General Gonzales. Senator, that is correct again.
    Senator Feinstein. That is what I wanted to know.
    Attorney General Gonzales. I just want to reemphasize that 
those EARS evaluations are the evaluations of the performance 
of the office. They would just be one of many factors, and I 
would say United States Attorneys universally would say they 
ought to be given the appropriate weight when looking at the 
performance of a United States Attorney.
    Senator Feinstein. Mr. Mercer, who was in charge of the 
process, in his transcript on the--
    Attorney General Gonzales. Senator, I don't believe he was 
in charge. Mr. Sampson, I delegated to Mr. Sampson the task 
coordinating this process.
    Senator Feinstein. Mr. Mercer was not in charge of looking 
at the EARS reports?
    Attorney General Gonzales. Senator, I don't recall knowing 
whether Mr. Sampson was in--you mean as a general matter?
    Senator Feinstein. Excuse me; Mr. Battle.
    Attorney General Gonzales. Mr. Battle. He was the Director 
of the Executive Office of United States Attorneys, so the EARS 
evaluation is performed through that office.
    Senator Feinstein. He would have looked at those reports. 
Let me give you a question and an answer from the transcript, 
page 43.
    Attorney General Gonzales. Senator, can I see what you are 
reading from?
    Senator Feinstein. I am reading from the staff interview on 
a transcript.
    Attorney General Gonzales. I haven't seen that transcript. 
Could I see it if you're going to ask me a question about it?
    Senator Feinstein. May I ask the question and then I will 
send it down?
    Attorney General Gonzales. Certainly, I'm sorry.
    Senator Feinstein. The question is: ``What did you do in 
response to her request to identify certain U.S. Attorneys and/
or districts? '' Answer: I ``basically wondered about the 
request. I had my secretary print out a list of all the U.S. 
Attorneys just to see if I could look at the list and see if 
there was anybody on there who may have been involved in some 
issues of misconduct or things of that nature that somebody 
maybe didn't know about, and I could report that to someone. I 
looked at the list, nobody jumped out at me. I put the list 
away.'' If you would like to see it--
    Chairman Leahy. I think, without--
    Attorney General Gonzales. Could you just give me the page 
number, Senator?
    Chairman Leahy. I will offer extra time to the Senator from 
California in this.
    Mr. Attorney General, I sent you a letter notifying you of 
this subject and referring to the transcript so you would not 
be surprised.
    Attorney General Gonzales. Thank you, Senator.
    What page is that on, Senator?
    Senator Feinstein. It is page 43.
    Attorney General Gonzales. And your question is?
    Senator Feinstein. My question is, did anybody that was 
involved in the unprecedented group firing of U.S. Attorney 
ever look at their performance reports prior to putting them on 
the list?
    Attorney General Gonzales. Senator, I don't know that.
    Senator Feinstein. Oaky. You said today--
    Attorney General Gonzales. But I would just say again, I 
want to emphasize, about the appropriate way to put on a EARS 
evaluation. You could have a great EARS Evaluation, which means 
you have a great team, but you could have a U.S. Attorney who's 
not doing a very good job.
    Senator Feinstein. You said today, ``We could do much 
better with regard to Carol Lam.'' So let me be clear. Carol 
Lam was ranked as one of the top ten prosecutors in the country 
for her prosecutions and her conviction rates. San Diego 
reached its lowest crime rate in 25 years during her tenure. 
She brought down the Hell's Angels gang in San Diego. She was 
told by Deputy Attorney General James Comey that he was 
satisfied with her prosecution strategy for gun crimes. She 
brought indictments against the Arellano Felix Cartel, a 
significant success in the fight against drugs. She gained a 
national reputation for her work on public corruption cases, 
which was the FBI's second highest priority just after 
terrorism. She was praised by the Border Patrol, the 
Immigration and Customs Enforcement, local leaders of the FBI, 
the San Diego City Attorney, judges in her district, and many 
others.
    The letters have said immigration is not one of the 
Department's top priorities, however, immigration prosecutions 
accounted for the largest single crime category prosecuted 
during Lam's tenure. I received a letter dated August 23rd--
that is just prior to the December 7th firing--signed by Will 
Moschella that says this: Prosecutions for alien smuggling in 
the Southern District under 8 U.S.C. Section 1324 are rising 
sharply in the year 2006. As of March 2006, the halfway point 
to 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. This was an answer to an inquiry I 
made. The letter says all is fine on the western front, the 
Southern District, with respect to these prosecutions. And 
finally, no one in the Department communicated to Carol Lam 
that there were concerns with the handling of her immigration 
cases. If this is the reason for the firing of a distinguished 
U.S. Attorney, should not somebody talk to her and say, look, 
we have a concern, and give her an opportunity to respond?
    Attorney General Gonzales. Senator, she is a distinguished 
prosecutor, and I commend her service as a prosecutor and as a 
judge, and she's a wonderful person. She was acutely aware of 
the concerns that existed with respect to her policies. She 
received letters directly from Congress. She met with Members 
of Congress. There were communications back and forth with the 
Department of Justice about her numbers. I think that she was 
aware of the fact that we had concerns.
    With respect to the letter, I don't recall being aware of 
the letter when I accepted the recommendation. I made the 
decision to ask for Ms. Lam's resignation. But you can't just 
focus solely on alien smuggling. Illegal entry, illegal reentry 
are likewise important.
    Ms. Lam served with distinction in a lot of other areas, 
and of course, she's going to have a lot of fans, and as do 
these other United States Attorneys that were asked to resign 
because there are good things that they did, but this was a 
very important border district, and it was appropriate for the 
President of the United States and the Attorney General to 
expect that we would make improvements with respect to both gun 
prosecutions and immigration prosecutions. That is the reason 
why I asked for Ms. Lam's resignation. She had served for 4 
years, and we felt it was the appropriate time to make a 
decision to try to improve performance with respect to, 
certainly with respect to immigration prosecutions.
    Senator Feinstein. If I might, you mentioned the House 
members. I would like to bring to your attention an e-mail sent 
on August 2nd that indicates she is meeting with Issa and 
Sensenbrenner. This is from Rebecca Seidel to Mark Edley. 
``Sounds like she handled well and it was actually 
constructive. See below.'' Then there is a litany about the 
meeting, very cordial, very constructive, et cetera.
    Attorney General Gonzales. Senator, there is no question 
that the record is full of discussions and concerns that the 
Department had about Ms. Lam's performance which related to 
immigration and gun prosecutions. That is the reason why I 
decided to ask for her resignation, to make a change. That's 
the reason why.
    Senator Feinstein. Thank you, Mr. Chairman.
    Chairman Leahy. Thank you. We will take a 10-minute recess, 
and then Senator Cornyn will be next.
    [Recess 11:17 a.m. to 11:30 a.m.]
    Chairman Leahy. The Committee will be in order, and again, 
I would remind people that you are here as guests of the U.S. 
Senate. We have both supporters and opponents of the Attorney 
General. That is fine. I think the Attorney General would agree 
with me, we protect the right of people to do that, but I will 
not have you disrupting anybody on either side, disrupting 
these hearings. These hearings are important. The Attorney 
General is entitled to be heard, the Senators are entitled to 
ask their questions, and we will have the kind of decorum 
expected by the Senate, just so everybody understands.
    Senator Cornyn.
    Senator Cornyn. Thank you, Mr. Chairman.
    General Gonzales, you and I have known each other a long 
time, and I believe that you are a good and decent man. But I 
have to tell you that the way that this investigation has been 
handled has just been really deplorable. You say that the 
process was flawed and you made mistakes in managing it, and I 
would like to ask you: How should you and the Department have 
conducted this process, if at all?
    Attorney General Gonzales. I believe that the review was 
appropriate, quite frankly. I think it is appropriate to ensure 
that public servants are doing their job, and that if we can 
make improvements, I think I have an obligation as the Attorney 
General to pursue those improvements.
    Looking back, things I would have done differently, I think 
I would have had the Deputy Attorney General more involved, 
directly involved. I think that I should have told Mr. Sampson 
who I wanted him to consult with specifically. I should have 
asked him, Who are you going to consult with? I should have 
told him I want the recommendation to include these people, and 
I think I should have asked him, Who do you think it ought to 
include as well?
    I should have told him the factors that I thought were 
important for him to consider. I should have told him this is a 
process that should not take 2 years; it is a process that 
should be completed in probably about 6 months, 6 to 12 months, 
something like that. And I think I would have told, I should 
have told him there ought to be a face-to-face meeting with 
every United States Attorney during this review, and it ought 
to involve the DAG or it ought to involve me, and we should 
have a list of particulars and talk with them about issues or 
concerns that we have and give them an opportunity, give the 
United States Attorney an opportunity to respond to those 
concerns that we have raised. And so I think these are the 
things--when I talk about a more rigorous, a more structured 
process, I think these are the kinds of things, in hindsight, 
that I wish would have happened.
    Now, I want to be very, very careful about formalizing a 
review process. Quite frankly, I raised this issue in my United 
States Attorney dialog. United States Attorneys do not want a 
formal evaluation process. They don't want it. They want to 
report to the DAG and to the Attorney General, and so what we 
are going to do is try to improve communication as opposed to 
implementing a formal process.
    I think it is also unfair to the President of the United 
States, quite frankly. If you have a formal evaluation process 
and that process shows that a United States Attorney is doing a 
great job but the President wants to make a change, politically 
it may be tougher for the President to do that.
    And so I think for those reasons, I would not have a 
formalized process, but I would have had a more structured and 
a more rigorous process in the manner that I've described.
    Senator Cornyn. Well, what I am struggling to understand 
about this controversy is. President Clinton replaced 93 United 
States Attorneys in one fell swoop. There is no requirement 
that any cause for replacement of a U.S. Attorney be stated 
because they serve at the pleasure of the President of the 
United States. That is one of the consequences of the election.
    And so if, in fact, there is no evidence--and I have not 
heard of any evidence--that these U.S. Attorneys were replaced 
with the purpose in mind of interfering with an ongoing 
investigation or prosecution--your comments along that line 
have been backed up by the FBI Director and others that there 
is no evidence of that--then I can only conclude that we find 
ourselves here today, you find yourself where you are today, as 
a result of injecting performance-based rationale into the 
decision to replace the United States Attorney. My recollection 
is that the Deputy Attorney General, Mr. McNulty, first offered 
those performance-based rationales for replacement of these 
attorneys, each of whom had served 4 years, and this is not a 
lifetime tenure job. It is not like a Federal judge. And it 
would have been much better to tell each of these United States 
Attorneys, ``Thank you for your service. You have served for 4 
years, and now it is time for someone else to have an 
opportunity to serve their country in this important job.'' 
Wouldn't that have been a better way to address this in 
retrospect?
    Attorney General Gonzales. Senator, that was, as I have 
gone back and reviewed sort of the implementation plan, in 
essence, sort of the talking point. It was not to get into 
specifics about issues or concerns about performance.
    But if you look at the documentation, it is clear that we 
struggled--not struggled, but this was an endeavor to identify 
those areas where there were issues or concerns about 
performance. Where we made a mistake, clearly, I think, is once 
we said performance, we should have defined that, because 
performance to me means lots of things. It means whether or not 
you have got the appropriate leadership skills, whether or not 
you have got the appropriate management skills. It may mean 
whether or not you support the President's policies and 
priorities. It may mean that you don't have--do you have a 
sufficient--do you have relationships with State, local, and 
Federal partners to discharge the mission of the office?
    And so there are lots of things that fall within, in my 
judgment, the definition of ``performance related,'' and I 
think that having said ``performance related,'' we should have 
defined what we meant by that. It did not mean that the person 
was a bad lawyer, necessarily a bad manager. It may have been 
an instance where the person no longer continued to be the 
right person at the right time for that position.
    Senator Cornyn. Well, I think that invariably, when 
people's performance is placed in issue, then they feel the 
necessity to defend themselves, and that should not have been 
required of them in a public forum like this, because, 
unfortunately, their reputations now have been affected by this 
present controversy. And what concerns me even more is there 
have been attempts, I know on the House side particularly, to 
identify people who were reviewed who were not relieved and to 
further drag them and their reputations through this process. I 
think that would be a disservice to them and a serious mistake 
to engage in that kind of fishing expedition.
    But, Mr. Attorney General, since I do not have a chance to 
ask you questions like this very often, let me change the topic 
just briefly to decisions made by Federal prosecutors in recent 
border prosecutions. Senator Feinstein asked you about Carol 
Lam and some of her immigration-related prosecutions, but, in 
particular, I have received a number of complaints from 
constituents about the prosecution and jailing of two Border 
Patrol agents from the El Paso area, Agents Ramos and Compean. 
I assume you are familiar with that. I am confident you are 
given the attention that it has received, and I would like to 
ask you to answer these questions, and I will ask you the 
questions, and my time will run out, and you feel free to 
answer them.
    Do you believe that the public has been fully informed by 
the news media about this case? Do you agree that a hearing by 
this Committee on that case at which time all of the facts can 
be explored would be a legitimate exercise of our oversight 
responsibility? Would you, in fact, welcome such a hearing? And 
would you pledge on behalf of the Department of Justice full 
cooperation with the Committee as we prepare for such a 
hearing?
    Attorney General Gonzales. Senator, it is hard for me to 
answer the first question. There is a lot, I think, of 
misinformation or disinformation about what happened here. I 
have known the prosecutor for many years, and I have confidence 
in his judgment. A jury agreed with the fact that these border 
agents who--let me just say, Border Patrol agents should be 
saluted as heroes. They serve this very important function for 
our country, sometimes at the risk of their lives. But a jury 
agreed that in this particular case, these two individuals 
broke the law. And not only did they break the law, but they 
tried to hide their crime. Mr. Sutton, again, following the 
evidence, did what he thought was right based upon the 
circumstances of this particular case.
    With respect to a hearing by the Committee in terms of what 
happened here, I will say that the Department will try to be--
as always, will fully cooperate. We will try to be as helpful 
as we can. And I would be happy to consider your request for a 
hearing. There is already a lot of information out there, but 
if we have not provided more information about this, I would be 
happy to do so.
    We want the Committee to be reassured that, in fact, there 
was nothing improper that happened here as well, that Mr. 
Sutton, again, followed the evidence, a jury agreed that, in 
fact, a crime had been committed, and this was the right 
result. And if there is information that we have that we can 
provide to the Committee to reassure the Committee, I would be 
happy to look at that.
    Senator Cornyn. I know a hearing was scheduled, and then it 
was postponed, and my hope is that it can be rescheduled and we 
can have that oversight hearing to make sure all of the facts 
get out--not rumor, innuendo, and speculation but the facts--so 
we can conduct our proper oversight responsibilities and the 
American people can be reassured of what the facts actually 
are.
    Thank you, Mr. Chairman.
    Chairman Leahy. I just want to make sure I fully understand 
something. It was mentioned--and I understand this to be a 
fact--that President Clinton replaced 93 of the U.S. Attorneys 
from the previous administration. How many of President 
Clinton's U.S. Attorneys were replaced by President Bush?
    Attorney General Gonzales. Eventually, Senator, I believe--
I don't know--
    Chairman Leahy. It was either 92 or 93, I think you will 
find.
    Attorney General Gonzales. Over a period of time, that is 
correct, sir. There was a conscious decision made that we would 
not follow the model used by this President's predecessor, that 
it was too abrupt and disruptive, and that we felt that we 
ought to do the resignation on staggered terms.
    Chairman Leahy. Just because I get a lot of calls from 
people saying, ``Well, didn't President Clinton replace''--as I 
recall it, just in the period of time I have been here, 
President Carter replaced all of the Ford-Nixon U.S. Attorneys. 
President Reagan replaced all of President Carter's. Former 
President Bush eventually replaced most of President Reagan's. 
President Clinton replaced President Bush's. And then this 
President Bush replaced President Clinton's. I cannot speak 
about what happened before I was in the Senate, but that is my 
recollection.
    Senator Feingold.
    Senator Feingold. Thank you, Mr. Chairman, and let me just 
note that I hear a lot in my State about these border guard 
incidents as well, and I look forward to whatever information 
is coming forward on that, or hearings.
    Mr. Attorney General, you have sworn an oath today, and 
that oath carries with it certain legal consequences, but you 
have a duty to the American people as a public servant to tell 
the truth when you speak to the public in a press conference, a 
news interview, or by publishing an op-ed piece in the 
newspaper, don't you?
    Attorney General Gonzales. Senator, I believe that when I 
speak to the American people and to the public that I should be 
truthful, and I endeavor to be truthful.
    Senator Feingold. Let me then go back to the subject that 
Senator Kohl brought up that is of particular interest to us in 
Wisconsin and the question of the case of Georgia Thompson. 
This was the highly publicized public corruption case which got 
a lot of attention in Wisconsin during much of 2006, especially 
since it happened during the re-election campaign of the 
Governor of Wisconsin.
    On April 5th, right after oral argument in the case, the 
Court of Appeals for the Seventh Circuit ordered that Ms. 
Thompson be immediately released from prison and her conviction 
was summarily reversed. I thought the report was wrong because 
it is so unusual for an appeals court to simply release 
somebody at that level. The appellate judges suggested that the 
evidence in the case was extremely weak and said essentially 
that the case should have never been brought.
    Can you understand why many citizens of my State, as they 
see this U.S. Attorney scandal widen, are now questioning 
whether the U.S. Attorney in Milwaukee could have possibly 
brought the Thompson case for political reasons?
    Attorney General Gonzales. Senator, I don't--look at the 
facts here. Again, this was a career prosecutor. The charging 
decision was made in consultation with the then Democratic 
State Attorney General and a Democratic local prosecutor.
    When you allege or anyone alleges--I am sorry. When anyone 
alleges that, in fact, there may have been politics involved in 
this case, what does that say to that Attorney General, to that 
local prosecutor, to the career investigators and career 
prosecutors?
    Senator Feingold. Let me interrupt here because time is 
limited. I did not ask you--and I am not alleging that there 
were political considerations here. I am asking, Can't you see 
how this U.S. Attorney scandal or problem that has occurred 
throughout the Justice Department leads to a situation where 
people wonder if there are political situations, 
considerations?
    Attorney General Gonzales. Senator, I can't speak to what 
may be in the minds of the people in your State. Again, I am 
doing everything I can--
    Senator Feingold. Yes, I can, and I can tell you this 
overall problem here has led to some very unfortunate thoughts 
about the situation that may or may not be justified. I am just 
trying to highlight what a problem this whole scandal has 
created.
    Do you plan to have the Department's Office of Professional 
Responsibility review the Georgia Thompson case?
    Attorney General Gonzales. Sir, am I?
    Senator Feingold. Yes, are you planning to have the 
Department's Office of Professional Responsibility review this 
case that I just--
    Attorney General Gonzales. Senator, I don't recall whether 
there has been action on that, but I would be happy to consider 
that.
    Senator Feingold. I hope you will because I think it is 
very important for the reason I just gave you.
    I also understand from press reports that the U.S. 
Attorney's Office in Milwaukee has provided documents to the 
Justice Department that are responsive to the letter that 
Senator Kohl and I sent, along with Chairman Leahy and other 
members of the Committee, last week on this incident. When can 
we expect a response to our letter and the production of the 
documents we asked for?
    Attorney General Gonzales. Senator, it is a recent request. 
I am told that we are talking about a voluminous amount of 
records. We are in discussions with, I understand, Committee 
staff and trying to do what we can to get documents up as 
quickly as we can.
    Senator Feingold. I hope it will be soon. Now, let me ask 
you about something that has been a major part of the 
questioning of Senator Specter, Senator Kennedy, Senator 
Feinstein, and others, and these are factual questions. I hope 
there can be quick answers.
    Kyle Sampson has testified that he kept you generally 
informed about the process of identifying U.S. Attorneys who 
might be asked to step down. Did you ever ask him for specific 
information about who he was speaking to in connection with 
this process or what he was doing to follow-up and check out 
the information he received?
    Attorney General Gonzales. Senator, what I recall is 
telling Mr. Sampson, ``Make sure the White House is 
appropriately advised,'' because these are political 
appointees, and telling him that I expected him to consult with 
the senior leadership of the Department, people who would know 
best the qualifications, the performance of United States 
Attorneys.
    Senator Feingold. This is what you told him to do, but I am 
asking whether you checked back with him after he did it.
    Attorney General Gonzales. Senator, I can't recall whether 
or not at the time he made the recommendations that I said, 
``Who did you consult with and whose recommendations are these? 
'' I will tell you what I understood. What I understood--
    Senator Feingold. Let me continue. That is a sufficient 
answer. You said you don't recall having done that. Did you at 
any time probe the information that Kyle Sampson provided you, 
including the recommendations that he ultimately made in the 
seven U.S. Attorneys to be fired?
    Attorney General Gonzales. Senator, I don't recall having 
specific questions about specific reasons. I do recall that 
when the recommendations were made, I was not surprised to see 
five of the names on the list.
    Senator Feingold. Did you ever talk to Deputy Attorney 
General Mr. McNulty about whether he was comfortable with the 
process that was under way?
    Attorney General Gonzales. With the process that was under 
way? I don't recall such a conversation, but afterwards, on the 
evening of Mr. Sampson's testimony--
    Senator Feingold. Oaky. I am just interested in the facts 
prior to. Did you ever talk to the head of the Executive Office 
of U.S. Attorneys or anyone else, other than Mr. Sampson, about 
whether the process was identifying the proper U.S. Attorneys 
to be relieved of their positions?
    Attorney General Gonzales. What I recall, a conversation 
with Mr. Sampson. That is what I recall, Senator.
    Senator Feingold. Did you at any time prior to your meeting 
on November 27, 2006, ask for a report in writing on the 
progress of the project?
    Attorney General Gonzales. I don't recall asking for a 
report in writing.
    Senator Feingold. How about when the final decisions were 
made? At any time prior to November 27, 2006, when you approved 
the firings, were you given or did you request a written memo 
or report giving the justifications for each of the decisions?
    Attorney General Gonzales. Senator, I don't recall that 
occurring. Again, what I recall is Mr. Sampson presenting to me 
a recommendation, which I understood to be the consensus 
recommendation of senior officials at the Department.
    Senator Feingold. Well, in light of the fact that you had 
so little to do with the decision and made so little effort to 
understand--
    Attorney General Gonzales. I had everything to do with the 
decision. It was my decision.
    Senator Feingold. Well, so little to do with the basis for 
the decision or why it was done, and you made so little effort 
to understand the reasons behind them, you really had no basis 
for telling the American people in your USA Today op-ed of 
March 7th that these U.S. Attorneys had lost your confidence, 
did you?
    Attorney General Gonzales. Senator, what I understood was 
that the recommendations reflected the consensus judgment of 
the senior leadership of the Department and that, therefore, 
the senior leadership had lost confidence in these individuals, 
thus the Department had lost confidence.
    Now, I will say I regret the use of those words, but, 
clearly, I understood that the senior leadership--that the 
recommendation made to me reflected the consensus view of the 
senior leadership of the Department, of individuals who would 
know better than I about the qualifications of these 
individuals.
    Senator Feingold. Well, I recognize that you have stated 
this now, but you could have taken immediate steps to correct 
the misstatements in this op-ed. You could have sent a letter 
to the editor. Instead, you let what is essentially a false 
statement sit out there, harming the reputation of dedicated 
public servants, and I think that is inexcusable. In light of 
the fact that you had so little to do with the decisions and 
made so little effort to understand the reasons behind them, 
you can't really say with certainty, as you did in your 
testimony today, that ``There is no factual basis to support 
the allegation, as many have made, that these resignations were 
motivated by improper reasons.'' You can't really say that, can 
you?
    Attorney General Gonzales. Senator, I know the basis on 
which I made my decision, and I'm not aware of anything in the 
record, I'm not aware of any testimony which would seem to 
support the allegation that someone was motivated by improper 
reasons in making a recommendation to me. I don't think the 
documents support such an allegation. But just to be sure, I 
have asked the Office of Professional Responsibility to work 
with the Office of Inspector General to confirm this. I want to 
get to the bottom of this as well, Senator, just as you do, and 
I want to reassure the American people that there was nothing 
improper about what happened.
    Senator Feingold. I appreciate that sentiment at this 
point, but you didn't know then and you don't know today how 
each of these people actually made it onto that list that you 
were presented with on November 27th, do you?
    Attorney General Gonzales. Senator, I have gone back and 
searched the record. I have spoken with the Deputy Attorney 
General and asked him whether or not he stood by the decision. 
And so that is his view, that is my view. The decision stands. 
It should stand. And I believe it was the right decision. I 
regret the way in which it was implemented. There were 
obviously mistakes in the review process. I have outlined to 
Senator Cornyn the things that I would have done differently 
that in hindsight I think would have been more appropriate.
    Senator Feingold. Well, you know, I am obviously taking 
that as a no to the question I actually asked, but, you know, 
it is pretty clear that this is the situation, that at the time 
you had no basis to know exactly how these people came to be on 
the list. The fact that various justifications have been made 
up or concocted after the fact does not cut it with me.
    Attorney General Gonzales. Senator, if you look carefully 
at the documents, you can see that there were people at the 
Department of Justice looking at various issues with respect to 
U.S. Attorneys, a lot of documentation with respect to 
immigration and gun prosecutions with respect to Carol Lam. 
There is some documentation with respect to obscenity and Mr. 
Bogden. There is documentation with respect to the information 
sharing and Mr. McKay. So there is documentation, Senator, 
about these reasons.
    Now, there may be other evidence or information in the 
minds of fact witnesses that you have access to that I don't 
have access to, but it's because I want to respect the 
integrity of this process.
    Senator Feingold. There is no credibility to the notion 
that it was your considered judgment that those justifications 
were the reason for removing those people at the time. There is 
simply nothing in the record that demonstrates that you had a 
sufficient effort made to make that determination.
    Attorney General Gonzales. Senator, I thought I had a good 
process in place. I think I am justified in relying upon the 
judgment of the senior leadership of the Department of Justice. 
I think I'm justified in relying upon the people who know a lot 
more about the qualifications and performance of United States 
Attorneys and accepting that recommendation. I did have in my 
mind at least information or reasons with respect to five of 
these individuals. I was not surprised that they were 
recommended to me based upon my knowledge.
    Senator Feingold. Thank you, Mr. Chairman, for the extra 
time.
    Chairman Leahy. Thank you very much.
    Senator Sessions.
    Senator Sessions. Mr. Attorney General--
    Chairman Leahy. Before we start the clock on Senator 
Sessions, just so we will know what the timing is, after 
Senator Sessions it will be Senator Schumer, Senator Graham, 
and Senator Durbin.
    Thank you. Go ahead, Senator Sessions.
    Senator Sessions. Mr. Attorney General, I think the thing 
that caused a lot of us concern was you had a press conference 
at the Department of Justice--it was a formal matter--to 
address these issues, and in that press conference you stated, 
``I was not involved in seeing any memos, was not involved in 
any discussions about what was going on.'' And at a later press 
conference, you said, ``I don't recall being involved in 
deliberations involving the question of whether or not a United 
States Attorney should or should not be asked to resign. I 
didn't focus on specific concerns about individuals.''
    Now, Mr. Sampson testified that there was a meeting--a 
final meeting, I guess--when this was discussed in some detail 
and that you were present. Do you recall that meeting and where 
it took place?
    Attorney General Gonzales. Senator, I have searched my 
memory. I have no recollection of the meeting. My schedule 
shows a meeting for 9 o'clock on November 27th, but I have no 
recollection of that meeting. My understanding, as I reviewed 
Mr. Sampson's public testimony, was that he had hazy 
recollections about it as well.
    But, in any event, I have no recollection of that meeting.
    Senator Sessions. Well, do you recall who Mr. Sampson said 
was there present along with you?
    Attorney General Gonzales. Senator, I recall, looking at 
the documentation on the calendar, who would be there. It would 
be the Deputy Attorney General, and I have no memory--
    Senator Sessions. McNulty.
    Attorney General Gonzales. Yes. I have no memory of this, 
but I think the calendar shows that the invitees were the 
Deputy Attorney General; the Principal Associate Deputy 
Attorney General, Mr. Will Moschella; Kyle Sampson, the Chief 
of Staff; Mike Battle, the Executive Director of the Executive 
Office of United States Attorney Attorneys; Monica Goodling, 
senior counselor in the Attorney General's Office; and myself.
    Senator Sessions. And this was not that long ago. This was 
in November of last year?
    Attorney General Gonzales. According to my calendar, 
November 27th.
    Senator Sessions. And Mr. Sampson seemed to indicate that 
he understood it was a momentous decision, that there would 
probably be political backlash. He even performed some outline 
about how that should be managed, and you don't recall any of 
that?
    Attorney General Gonzales. Senator, I can only testify as 
to what I recall. Believe me, I have searched my mind about 
this meeting. I would have no reason not to talk about this 
meeting.
    At some point, of course, Mr. Sampson presented to me the 
recommendations, and at some point I understood what the 
implementation plan was. But I don't recall the contents of 
this meeting, Senator. I am not suggesting that the meeting did 
not happen.
    Senator Sessions. I know, but I am worried about it. Mr. 
Battle, who was there, testified that you were there, and he 
thought you were there most of the time. Would you dispute Mr. 
Battle?
    Attorney General Gonzales. Senator, putting aside the 
issue, of course, sometimes people's recollections are 
different, I have no reason to doubt Mr. Battle's testimony.
    Senator Sessions. Well, I guess I am concerned about your 
recollection, really, because it is not that long ago, it was 
an important issue, and that is troubling to me, I have got to 
tell you.
    Attorney General Gonzales. Senator, I went back and looked 
at my calendar for that week. I traveled to Mexico for the 
inauguration of the new President. We had National Meth 
Awareness Day. We were working on a very complicated issue 
relating to CFIAS, and so there were a lot of other weighty 
issues and matters that I was dealing with that week.
    You have to remember that this was a process that had been 
ongoing for 2 years. This wasn't something that just showed up 
1 day on my desk. And I'm not downplaying the importance of 
this issue--
    Senator Sessions. Well, what about you mentioned you made a 
call to Senator Kyl? Was that on this day, about one of the 
U.S. Attorneys in his district, his State?
    Attorney General Gonzales. Sir, I don't understand what the 
question is.
    Senator Sessions. You indicated you made a phone call to 
Senator Kyl--
    Attorney General Gonzales. Yes, that was--
    Senator Sessions [continuing]. About the decision you had 
made.
    Attorney General Gonzales. That was on December 7th, as I 
recall it, December 7th.
    Senator Sessions. That was later on.
    Attorney General Gonzales. The day we were implementing--
the day the plan was being implemented.
    Senator Sessions. Well, Mr. Gonzales, with regard to United 
States Attorney Iglesias, there are concerns about vote fraud. 
Senator Feingold has raised concern about a United States 
Attorney in his district on vote fraud. Senator Cornyn has 
raised questions about a decision by a United States Attorney 
in Texas on prosecuting Border Patrol agents. So I would 
suggest first, there is nothing wrong with questioning a United 
States Attorney by a politician or anyone else, raising 
questions about it. But I am going to tell you what I think Mr. 
Iglesias was entitled to as a member of the Department of 
Justice who is out there in the field. I think he should have 
been inquired of about this voter fraud case. And I am going to 
tell you, I have prosecuted voter fraud cases. They are the 
most controversial things you can imagine. And sometimes they 
look like they are easy to prosecute, and I have been 
criticized as Attorney General for not being aggressive in 
that, and I have been criticized as a United States Attorney 
over those cases.
    So I would just suggest to you that that is a delicate 
matter, and I think somebody should have met with him to 
ascertain his judgment on that.
    Attorney General Gonzales. You are absolutely right. It is 
a delicate matter. It is one thing to tell Mr. Iglesias, ``How 
are you doing on voter fraud cases generally? '' But if you are 
talking about inquiring about a specific case, that is really 
delicate because simply inquiring into the case sends a message 
to the United States Attorney. And if you mention, ``Oh, by the 
way, the home-State Senator, the guy who recommended you for 
this job, is concerned about how you are doing on this case,'' 
that is really dangerous. And so--
    Senator Sessions. Well, perhaps, but, you know, we are 
all--United States Attorneys have to be tough, too. I mean, 
they have to defend what they do, and if Senator Feingold wants 
to ask about a voter fraud case, somebody at some point, I 
think, should inquire as to what he can say about that case and 
to form an opinion on it.
    Let me ask you a couple of things I think that were 
somewhat important from your perspective. Apparently there was 
a suggestion from Harriet Miers, Counsel to the President, that 
all the United States Attorneys should be fired, you should 
start over again after the first 4 years of the Bush 
administration. I thought you responded well, as I understand 
it, to that. What did you say to that?
    Attorney General Gonzales. Senator, my recollection is that 
I didn't think that would be a good idea, and let me just--I 
don't know whether or not that was Harriet Miers' idea, whether 
even she supported the idea. But I recall Mr. Sampson coming to 
me and telling me that this was an idea raised by Ms. Miers.
    Senator Sessions. You rejected that.
    Attorney General Gonzales. Yes.
    Senator Sessions. Then Kyle Sampson proposed--Senator 
Feinstein has expressed concern about the new law that allows 
appointment without a potential confirmation hearing here. She 
asked about that. And Mr. Sampson said these appointments 
should be made under that new Act. I believe he testified that 
you disapproved and said no, and that, ``the Attorney General 
was correct.'' Is that a fair statement?
    Attorney General Gonzales. Senator, I never liked this 
idea, quite frankly, because I believe it is important for 
United States Attorneys to be Presidentially appointed and 
confirmed. They've got to knock heads sometimes with other 
Federal officials and with State and local officials. I just 
think it makes them look stronger to have been through that 
process. And quite frankly, I thought it was kind of a dumb 
idea, because the first time we would do it as a matter of 
routine the Senate would simply change the law, and so I never 
liked the idea.
    And the first opportunity, the first concrete time 
opportunity came up with respect to Mr. Griffin in the Eastern 
District of Arkansas, and I had conversation with Senator 
Pryor, and I told Senator Pryor we're going to put in Tim 
Griffin in an interim basis. I want to see how he does. You 
should see how he does. Let's see how he does.
    Senator Sessions. Not utilize the new Act?
    Attorney General Gonzales. Pardon me?
    Senator Sessions. You did not utilize the new--
    Attorney General Gonzales. Even before the change in the 
law, the Attorney General had the authority to put someone in 
on an interim basis for at least 120 days. That's been true for 
many, many years. What changed here was eliminating the 120-day 
requirement. But I had told Senator Pryor I wanted Mr. Griffin 
in for a period of time. Let's see how he does. And in a 
subsequent conversation with Mr. Pryor I asked him, ``Can you 
support Mr. Griffin as the nominee? '' And he made it clear to 
me that he would not support him by not giving me a yes answer, 
and so I said: Well, then I cannot recommend him to the White 
House, because if you don't support him, I know he will not be 
confirmed. We'll look for someone else, and give me names that 
we ought to consider.
    And so at the first concrete opportunity that came up with 
respect to this interim authority and avoid Senate 
confirmation, what I did was consult with the home State 
Senator, solicit his views, and when I believe that he was not 
going to be supportive of Mr. Griffin as a nominee, I said, 
fine, we'll look a different direction.
    Senator Sessions. My time is expired.
    Chairman Leahy. Of course, under the law that we then voted 
to repeal, you could have kept him in there whether Senator 
Pryor wanted him or not. You know, Mr. Attorney General, you 
said in answer to Senator Sessions' question you do not recall 
the November 27 meeting where you made the decision.
    Attorney General Gonzales. Senator, I don't know that a 
decision was made at that meeting.
    Chairman Leahy. How can you be sure you made the decision?
    Attorney General Gonzales. Senator, I recall making the 
decision. I recall making the decision.
    Chairman Leahy. When?
    Attorney General Gonzales. Sir, I don't recall when the 
decision was made.
    Chairman Leahy. We may go back to that. Count on it.
    Senator Schumer.
    Senator Schumer. Thank you, Mr. Chairman.
    Chairman Leahy. And I will ask, again, I will advise the 
people in the audience, this is a serious matter. Out of 
respect both for the Senate and the Attorney General, I would 
ask not to have any displays of either approval or disapproval. 
You certainly are going to have plenty of time to state that 
publicly to one way or the other to the press, but not here.
    Senator Schumer. Thank you, Mr. Chairman.
    Thank you, Mr. Attorney General. First I want to just go 
back to an interchange that you had a couple of minutes ago. 
You told Senator Feinstein that Carol Lam was, quote, these are 
your words, ``acutely aware of the Department's concerns about 
her immigration enforcement.''
    Now let me read to you a portion of Mr. Sampson's public 
testimony on March 29th. He said, ``I'm not suggesting that 
someone did give Carol Lam notice,'' these are his words. ``I 
think we did not give--no one to my knowledge talked to Carol 
Lam about the concerns we had in the leadership of the 
Department about her office's immigration enforcement.''
    This is Kyle Sampson, the man you said was at the center of 
the whole decisionmaking process saying she was not given 
notice, and yet, a few minutes ago you told Senator Feinstein 
that she was, ``acutely aware.''
    Attorney General Gonzales. Notice of what, Senator?
    Senator Schumer. Notice both case of immigration 
enforcement, both--
    Attorney General Gonzales. Senator, I'm not going to 
characterize Mr. Sampson's testimony. What I will tell you is 
what I recall, and I will tell you what I have learned from 
looking at the documents. I believe in looking at the 
documents, there was communication with Ms. Lam about how she 
was doing with respect to immigration. There was a lot of 
communication by Members of Congress with Ms. Lam about 
immigration. And so she was aware that there was some concern, 
certainly interest, about how she was doing in--otherwise, why 
would we contact her?
    Senator Schumer. Senator Feinstein just informs me Carol 
Lam was not aware of the Justice Department's views on her 
prosecution of immigration. Kyle Sampson says she was not 
aware. And you are saying that the Department made her aware, 
and this is what we have been through all morning. The people 
that we have interviewed, whether it is Kyle Sampson or Mercer 
or Battle, have contradictory statements as to what you say. I 
am sure when the Department has trouble with a U.S. Attorney 
they do not tell a Congressman to go tell her. Which is right?
    Attorney General Gonzales. Senator, I recall sitting in a 
meeting concerned about Ms. Lam, and saying that those numbers 
needed to change, and I expected that information to be 
communicated. Now, Ms. Lam may not have been told that in fact, 
if you don't change your policies, there's going to be a 
change, but I believe, looking at the documents--and I never 
spoke to her directly--but I believe looking at the documents 
that she had knowledge that there was certainly an interest 
about her immigration numbers. And why would we have an 
interest but for the fact that we were concerned about those 
numbers.
    Senator Schumer. Kyle Sampson said no one told her. She 
said no one told her.
    Attorney General Gonzales. No one told her what? No one 
told her that if--that there was any interest or concern, or no 
one told her that if you don't change, you're going to be 
removed?
    Senator Schumer. I will yield to my colleague.
    Senator Feinstein. If I may, Attorney General, Carol 
Sampson said she was never spoken to--
    Senator Schumer. Carol Lam.
    Senator Feinstein. Excuse me. Carol Lam said she was never 
spoken to by the Department about their concern on her 
immigration prosecutions.
    Senator Schumer. Let me just say, Mr. Attorney General, 
this is a serious hearing, you have had months to prepare. The 
U.S. Attorney in question says she was not spoken to. Kyle 
Sampson, at public testimony, not the private transcripts, not 
a private conversation, says the same.
    Attorney General Gonzales. Senator, I did not say that Ms. 
Lam was aware that if her numbers didn't change, we would ask 
her to resign. What I said was that she was aware of the 
concerns, and certainly the interest that we had about her 
performance. There's no question about that. If you look at the 
letters, if you look at the e-mail communication, there is no 
question about that.
    Senator Schumer. Sir, I am going to move on. I think the 
record will state just what we have stated, that she does not 
believe she was talked to and Kyle Sampson does not believe she 
was talked to about immigration concerns. That was Senator 
Feinstein's question. That is what Carol Lam said. That is what 
Kyle Sampson said. I am going to move on here.
    Attorney General Gonzales. But why would Members of 
Congress send her letters about her immigration reform?
    Senator Schumer. Sir.
    Attorney General Gonzales. Why would they want to have 
meetings with her?
    Senator Schumer. Sir.
    Attorney General Gonzales. Why did we send her 
communications about immigration? Because there was concern 
about her numbers.
    Senator Schumer. Is it general policy of the Department of 
Justice, when they have problems with a U.S. Attorney, to let a 
Congress member tell them that something is wrong, or is the 
Department supposed to communicate directly with the U.S. 
Attorney?
    Attorney General Gonzales. Here's what I'll say, I think we 
should have done a better job in communicating with Ms. Lam. I 
think we should have done a better job in communicating with 
all of these United States Attorneys. I've already conceded 
that, and that's one of the things that we're going to 
institutionalize going forward.
    Senator Schumer. But, sir, the issue goes beyond that. It 
goes to who is telling the truth around here. You said a minute 
ago she was told. She is saying, Kyle Sampson is saying she was 
not told. It is beyond doing a better job, it is getting to the 
real truth in a hearing where you have had a month to prepare, 
where all of these things are public. It is a key question, and 
it is still an answer that contradicts what others have said. 
But I am going to move on because I have limited time. this is 
about another issue. There is a real question raised by this 
investigation about whether you and the Department of Justice 
intended to bypass the Senate's role in confirming the U.S. 
Attorney as it relates to the law that Senator Feinstein passed 
and all but two of us in the Senate voted for, and equally 
troubling, as I mentioned, is a real question about whether you 
were honest with the Members of Congress about your intent, and 
this is a serious matter.
    Attorney General Gonzales. I agree, Senator.
    Senator Schumer. To emphasize how serious I want to read to 
you what Senator Pryor had to say on the floor of the Senate 
about his interactions with you.
    Attorney General Gonzales. Can I see his transcript?
    Senator Schumer. Yes. But I will read it. It is very clear. 
And I am sure you know it, his searing words, as you will hear.
    Attorney General Gonzales. I would like to see it.
    Senator Schumer. We will get it to you. As everyone here 
knows, Senator Pryor is one of the most temperate members of 
the Senate. He is mild mannered, and his words are all the more 
striking for that reason. He said: ``The Attorney General not 
only lied to me as a person, but when he lied to me, he lied to 
the Senate and he lied to the people I represent.'' I spoke to 
Senator Pryor yesterday. He stands by those words.
    Kyle Sampson wrote to Harriet Miers last September--that is 
what he wrote--he wrote that they wanted to do this plan of 
getting around the Senate and appointing interim U.S. 
Attorneys, and he also told Congress that the White House never 
rejected the idea of evading the Senate confirmation in the 
Eastern District of Arkansas. According to Kyle Sampson, you 
became aware of this idea or plan in early December of 2006. He 
told you about it. You did not reject it.
    Then on December 19th Kyle Sampson is promoting this 
astonishingly perverse plan. He is going forward with it. And 
this poster, which we have here--and I will get you a copy of 
what it says--shows it. Sampson's advice to the White House is, 
``We'' meaning the Department, ``We should gum this to death to 
run out the clock.'' He lays out a specific plan for running 
out the clock. The Department of Justice should ask Arkansas 
Senators to meet Tim Griffin, give him a chance. After that, 
the administration to pledge to desire a Senate-confirmed U.S. 
Attorney and so forth. The plan was to use these tactics to 
delay so Griffin could stay in without Senate confirmation 
until the end of the President's term.
    But now, 4 days before Kyle Sampson sends that plan, you 
personally talked with Senator Pryor. Kyle Sampson testifies 
that he was in the room. You talked to him twice--he was in the 
room on one of those occasions--about Tim Griffin. Kyle Sampson 
says you talked with Senator Pryor two times. He was in the 
room and you said to Senator Pryor that you wanted to go 
through a Senate confirmation. This is in December. What would 
you think if you are in Senator Pryor's shoes? There is a plan 
to circumvent U.S. Attorneys early in December. You go along 
with that.
    Attorney General Gonzales. I didn't go along with it.
    Senator Schumer. On December 19th a memo was sent to 
implement it. Yet on December 15th you are on the phone with 
Senator Pryor saying, oh, no, no, you are going to get 
confirmation.
    So which is it? Again, did Kyle Sampson put out this memo 
completely on his own? And if he did, I mean you cannot have it 
both ways. If your chief of staff is implementing a major plan 
that contradicts what you just told a U.S. Senator from that 
State, in my view you should not be Attorney General. And if on 
the other hand, what you said to Senator Pryor contradicts the 
plan you also should not be Attorney General. Can you explain 
what happened to you?
    Attorney General Gonzales. Yes.
    Senator Schumer. Because I am totally sympathetic with what 
Senator Pryor said.
    Attorney General Gonzales. Mr. Sampson also testified 15 to 
20 times in various ways that I either rejected this plan, I 
never liked this plan, thought it was a bad idea, never 
considered it, would not have considered it.
    Senator Schumer. No. He said that you did know about it. He 
told you about it and you did not reject it.
    Attorney General Gonzales. Senator, 15 to 20 times he said 
I either rejected it, didn't like it, thought it was a bad 
idea, wouldn't consider it, didn't consider it.
    Senator Schumer. Oab. Then he went ahead, when you did not 
like the plan, on December 19th?
    Attorney General Gonzales. Senator, I didn't--
    Senator Schumer. That was later that you did not like the 
plan. Kyle Sampson said in December you had no rejection of the 
plan. But let's even assume you did not like it. What are we to 
think as U.S. Senators? You do not like a plan your chief of 
staff, the man in charge of everything, even though you are 
saying do not do this plan, puts out something to go ahead and 
go forward. Who is running the Department?
    Attorney General Gonzales. Senator, I wasn't aware of this 
e-mail, but again, I want to be very, very clear about this. I 
never liked this plan.
    Senator Schumer. You never liked the plan, and your chief 
of staff, 4 days after you assure Senator Pryor otherwise, puts 
out a detailed, step-by-step process on how to implement the 
plan. Does that indicate someone who is running the Department?
    Attorney General Gonzales. Senator, Mr. Sampson has 
testified that this was a bad idea, and it was a bad idea, and 
it was never accepted, not only by me, but he also testified as 
to the principles.
    Senator Schumer. Sir, Mr. Sampson said it was a bad idea in 
retrospect in February and March. In December he was going full 
bore ahead with the plan, as the memo you have just been shown 
shows.
    Attorney General Gonzales. Senator, and he's also 
testified--if we're going to go on his testimony--that this was 
a plan I never liked, that I rejected it, that I didn't 
consider it--
    Senator Schumer. No. That is not what he testified to, sir. 
Go look at the transcript. In December he says you did not 
reject the plan when he talked to you about it.
    Attorney General Gonzales. Sir, I don't recall the exact 
timeframe, but he also said that I never liked this idea, I 
didn't consider it and wouldn't consider it.
    Chairman Leahy. Gentlemen.
    Senator Schumer. I would just say, sir, that it defies 
credulity that your chief of staff, 4 days after you tell 
somebody you're going one way, goes exactly the opposite way 
and says, says that you never rejected the plan when you say 
you did.
    Thank you, Mr. Chairman.
    Chairman Leahy. Obviously, though, you accepted the use of 
the provision in the PATRIOT Act to replace a number of 
Senators, and now in probably the strongest bipartisan vote I 
have seen in the Senate in years, we voted to remove that from 
the PATRIOT Act.
    Attorney General Gonzales. Senator, if you look at the 
record, the reauthorization of the PATRIOT Act was March 9th, 
and the administration has nominated to virtually all these 
vacancies. We are pursuing and have been pursuing and 
respecting the role of the Senate, and I take issue with 
Senator Schumer's characterization.
    Chairman Leahy. We will go back to that. Senator Graham has 
been waiting patiently, but I would note that when you talk 
about sending up nominations to these vacancies, you sent two 
nominations, 21 vacancies. That is one out of 10.
    Attorney General Gonzales. Senator, sometimes it's because 
we have to wait for recommendations from home State Senators, 
so let's look at their performance as well.
    Chairman Leahy. Sometimes I think one would look for the 
possibility of a nomination before they started--
    Attorney General Gonzales. We want to continue working with 
the Senate.
    Senator Graham. Thank you, Mr. Chairman. Is it my turn?
    Chairman Leahy. I will let that one go. We have a 
difference of opinion.
    Go ahead, Senator Graham.
    Senator Graham. Let us make sure that we understand the two 
things we are talking about in terms of plans. One plan was to 
get rid of all 93 U.S. Attorneys at once; is that correct?
    Attorney General Gonzales. Sir, I don't know if I would 
call it a plan. It was an idea that was raised.
    Senator Graham. And it was shot down.
    Attorney General Gonzales. That is correct.
    Senator Graham. This plan that you are talking about with 
Senator Schumer involves what?
    Attorney General Gonzales. As I understood it, what I 
expected Mr. Sampson to do was coordinate a review of all U.S. 
Attorneys, and make an evaluation, make a recommendation to me 
as to where there were issues or concerns of particular U.S. 
Attorney districts where it may be appropriate to make a change 
for the benefit of the Department.
    Senator Graham. This December memo that he is talking 
about, or e-mail, what is the point there? From your point of 
view, how do you reconcile the conversation with Senator Pryor 
and the e-mail?
    Attorney General Gonzales. Senator, it's difficult for me 
to reconcile the conversation. All I know is what I 
communicated to Senator Pryor in good faith.
    Senator Graham. Was?
    Attorney General Gonzales. Was that we wanted to put Mr. 
Griffin in on an interim basis. I didn't know Mr. Griffin that 
well, and I wanted to see how he did, and I recall telling 
Senator Pryor--
    Senator Graham. And the reason Mr. Griffin was going to be 
put in is because the White House wanted him to have an 
opportunity to serve in this position?
    Attorney General Gonzales. This was a well-qualified 
individual, and, yes, the White House had a desire to have him 
serve.
    Senator Graham. And it was no problem with Mr. Cummins' 
performance, it was just a preference for somebody new in the 
second term?
    Attorney General Gonzales. I would say that's a fair 
statement.
    Senator Graham. Now, if you told Mr. Sampson 15 or 20 times 
this is a bad idea, why did it not sink in?
    Attorney General Gonzales. Sir, I didn't tell him 15 or--I 
don't recall telling him 15 or 20 times. As I reviewed the 
transcript from his testimony, he was asked repeatedly about 
whether or not was this something the Attorney General 
supported or approved, and my recollection is, is that 15 to 20 
times he said something like, I didn't consider it, I wouldn't 
consider it, thought it was a bad idea, I rejected it, it was 
rejected by principles. So 15 or 20 times, as I recall, this 
question was posed to Mr. Sampson in one way or another to try 
to get a sense--
    Senator Graham. But he always said you never bought into 
this idea?
    Attorney General Gonzales. Well, sir, he never said that, 
as I recall, in his testimony. And again, the first opportunity 
really where this came up--
    Senator Graham. But he always said that you disagreed with 
this plan?
    Attorney General Gonzales. I believe he said I didn't like 
it. Look, I know I didn't, I never liked it. I thought--again, 
I thought--
    Senator Graham. And what did you not like?
    Attorney General Gonzales. What I didn't like was the fact 
that I think it's more important to have U.S. Attorneys 
nominated by the President and confirmed by the Senate because 
I believe it--you know, that certainly the appearance of more 
authority, and it makes it more effective.
    Senator Graham. The White House had a different view?
    Attorney General Gonzales. Sir, I can't speak for the White 
House, quite--
    Senator Graham. Where did this idea come from?
    Attorney General Gonzales. Which idea, sir?
    Senator Graham. The idea of Senate confirmation being 
changed?
    Attorney General Gonzales. Well, let me--I can't speak to 
where the idea came from, but what I can say is that I 
supported the idea because I don't--I supported a change in the 
law, not the idea of avoiding Senate confirmation. I supported 
the change in the law because I didn't like the notion of a 
judge telling the Attorney General who should be on his staff, 
and the prior law had a requirement that after 120 days of an 
interim appointment, then the chief judge in the district makes 
the decision about who serves as the acting--the acting United 
States Attorney.
    Senator Graham. Just some personal advice, you know, we all 
respect Senator Pryor, and he said some pretty harsh things, 
which is out of character, so I would just advise you to set 
down with him and walk through what happened, because I think 
he is a reasonable fellow, and you all straighten that out if 
you can.
    Attorney General Gonzales. Senator, I couldn't agree more. 
I have a great deal of admiration for Senator Pryor, and I 
think that's a good idea.
    Senator Graham. I guess my basic problem is that you 
apologize here in April to all the U.S. Attorneys that have 
gone through pretty hard times about their job performance, and 
you gave a very good explanation to Senator Brownback about 
each person. But it took us a long time to be able to nail that 
down, and you have given news conferences where things were--
you did not have any ownership of the process, basically, you 
delegated it. You made the final decision, but the process 
itself--is it fair to say that when you made your final 
decision it was based on trust of your senior team more than it 
was knowledge?
    Attorney General Gonzales. I think that's a fair 
assessment. Again, what I understood was that the 
recommendation that would come to me would be a consensus 
recommendation of people that I trusted that would know most, 
certainly better than I, about the qualifications and 
performance of United States Attorneys.
    Senator Graham. My basic question is that the decision to 
replace people based on poor performance that you would roll 
out to the Nation, because eventually it was your decision, I 
know you have said this, but it really does bother me that 
people like Mr. Iglesias apparently were never able to tell 
their side of the story. If someone came to me and said, this 
person has to go, they are not doing their job well in terms of 
prosecuting a particular case or a series of cases, they need 
to go, no one seemed to contact Mr. Iglesias and say, ``What is 
your side of the story? ''
    Attorney General Gonzales. Senator, I agree with that. I 
think in hindsight, certainly, what I discovered is that we 
don't have good enough communication between me--
    Senator Graham. And you said Ms. Lam did have notice of her 
poor performance.
    Attorney General Gonzales. Senator, I think Ms. Lam 
certainly had notice of the fact that there was interest, if 
not concern, about her immigration numbers. There were 
meetings. There was communication with her.
    Senator Graham. I guess what I am trying to wonder, is this 
really performance based or do these people just run afoul of 
personality conflicts in the office and we were trying to make 
up reasons to fire them because we wanted to get rid of them?
    Attorney General Gonzales. Sir, I think if you look at the 
documentation, I think you can see that there is documentation 
supporting these decisions.
    Senator Graham. Mr. Attorney General, most of this is a 
stretch. I think it is clear to me that some of these people 
just had personality conflicts with people in your office or at 
the White House, and we made up reasons to fire them. Some of 
it sounds good, some of it does not, and that is the lesson to 
be learned here.
    Attorney General Gonzales. Senator, I respectfully disagree 
with that, I really do.
    Senator Graham. I do believe this, that you never 
sanctioned anybody being fired because they would not play 
politics a particular way.
    Attorney General Gonzales. I would not do that.
    Senator Graham. I do believe that your associates have 
prosecuted both Democrats and Republicans. I do not believe you 
are that kind of person. I do not believe that you are involved 
in a conspiracy to fire somebody because they would not 
prosecute a particular enemy of a politician or a friend of a 
politician. But at the end of the day, you said something that 
struck me, that sometimes it just came down to these were not 
the right people at the right time. If I applied that standard 
to you, what would you say?
    Attorney General Gonzales. Senator, I think what I would 
say, what I would say--Senator, what I would say is that I 
believe that I can continue to be effective as the Attorney 
General of the United States. We've done some great things in 
the past 2 years.
    Senator Graham. And you have done some very good things, I 
agree with that.
    Attorney General Gonzales. I acknowledge the mistakes that 
I have made here. I've identified the mistakes. I know what I 
would do differently. I think it was still a good idea.
    Senator Graham. What kind of damage do you believe needs to 
be repaired on your part with the Congress or the Senate in 
particular?
    Attorney General Gonzales. Senator, I think I need to 
continue to have dialog with the Congress, to try to be as 
forthcoming as I can be to reassure the Congress. I've tried to 
inform the Congress that I don't have anything to hide. I 
didn't say no, to the document request. I didn't say ``no, you 
can't interview'' to my internal staff. You know, I asked OPR 
to get involved. I've done--everything I've done has been 
consistent with the principle of pursuing truth and 
accountability.
    Senator Graham. Finally, you are situationally aware that 
you have a tremendous credibility problem with many Members of 
the Congress, and you are intent on trying to fix that. Today 
is a start, right?
    Attorney General Gonzales. Absolutely, Senator.
    Senator Graham. Thank you.
    Chairman Leahy. Senator Durbin of Illinois.
    Senator Durbin. Thank you, Mr. Chairman.
    Thank you, Mr. Attorney General, for being with us today. 
When you were White House counsel, did you ever sit in on these 
meetings with the Attorney General and Karl Rove to discuss 
judicial nominations and nominations for U.S. Attorneys?
    Attorney General Gonzales. Senator, that's an internal 
White House process of making decisions about judicial nominees 
and U.S. Attorneys. I was a part of that committee. Mr. Rove 
would, I would say infrequently, but he would occasionally be 
present at these meetings.
    Senator Durbin. Do you recall the conversation leading up 
to the nomination of Patrick Fitzgerald to be the U.S. Attorney 
for the Northern District of Illinois?
    Attorney General Gonzales. I do not.
    Senator Durbin. You were not present?
    Attorney General Gonzales. I do not recall. I'm sorry, I 
thought your question was ``do you recall the conversation? '' 
I don't recall the conversation. I don't recall whether or not 
I was present. I suspect I probably was, but I don't recall.
    Senator Durbin. It has been reported that Mr. Rove had 
misgivings about Patrick Fitzgerald because of the political 
impact it might have in my State of Illinois. Do you remember 
any statements by Mr. Rove to that effect?
    Attorney General Gonzales. I don't recall, Senator. Where 
has it been reported?
    Senator Durbin. It has been reported in the New York Times. 
I can read portions of it to you, but it is in a March New York 
Times article just recently published. But I would like to ask 
you this: you took over as Attorney General, if I am not 
mistaken, in January of 2005?
    Attorney General Gonzales. I believe it was in February of 
2005, Senator.
    Senator Durbin. February 2005. At the time you knew who 
Patrick Fitzgerald was?
    Attorney General Gonzales. Yes, sir.
    Senator Durbin. He was a rather high profile U.S. Attorney 
having been chosen as Special Counsel by Deputy Attorney 
General Comey to investigate the Valerie Plame incident and the 
involvement of the Vice President's Office and other offices; 
is that correct?
    Attorney General Gonzales. That is correct.
    Senator Durbin. Shortly after you arrived, there was an 
evaluation made of Patrick Fitzgerald's performance as U.S. 
Attorney. Do you remember that evaluation?
    Attorney General Gonzales. Senator, I think you--no, sir, I 
don't. I don't know what evaluation you're referring to. Could 
you just, please, clarify?
    Senator Durbin. The evaluation I refer to was by Mr. 
Sampson.
    Attorney General Gonzales. Okay. I'm aware now of what 
you're referring to.
    Senator Durbin. And you are aware of the fact that Patrick 
Fitzgerald, who had been designated Special Counsel, who was in 
the process of investigating any criminal wrongdoing by members 
of the President's or Vice President's staff, was given a 
recommendation that said he had ``not distinguished himself 
either positively or negatively.'' Do you remember that?
    Attorney General Gonzales. Senator, now I'm aware of this. 
I didn't know about this at the time, but subsequent--I mean 
recently I've become aware of this issue.
    Senator Durbin. So these evaluations by Kyle Sampson of 
U.S. Attorneys were never shown to you?
    Attorney General Gonzales. Senator, I don't recall ever 
seeing these evaluations.
    Senator Durbin. Let me ask you point blank: do you think 
that was a fair evaluation of Mr. Fitzgerald at that time?
    Attorney General Gonzales. Well, let me say a couple of 
things. One, I recused myself and had been recused with respect 
to Mr. Fitzgerald and the investigation. Two, even if I weren't 
recused, I would have serious questions about an evaluation of 
a U.S. Attorney involved in this kind of prosecution. And 
third, let me just say that based upon my own personal 
knowledge and experience, I think Mr. Fitzgerald is an 
outstanding prosecutor.
    Senator Durbin. Are you aware of the fact that Kyle Sampson 
testified under oath that he recommended to Harriet Miers that 
Patrick Fitzgerald also be removed as a U.S. Attorney as part 
of this purge?
    Attorney General Gonzales. Senator, I'm aware of what he 
said. I remember reading the transcript. I'm not sure that it 
was a recommendation, per se. I'm aware of what he said in his 
testimony, yes, sir.
    Senator Durbin. Did he speak to you before he made that 
recommendation, and tell you that he was going to ask for 
Patrick Fitzgerald to be removed in the middle of this 
investigation of the White House?
    Attorney General Gonzales. I don't recall him speaking to 
me about that, sir.
    Senator Durbin. It did not happen, it did happen, or you do 
not recall?
    Attorney General Gonzales. Senator, again, you're talking 
about events that happened over 2 years, thousands of 
conversations. I don't think that conversation occurred.
    Senator Durbin. Mr. Gonzales, this is the highest profile 
U.S. Attorney in America.
    Attorney General Gonzales. Yes.
    Senator Durbin. He is investigating the White House, 
including people that you have worked with for years, and now 
your chief of staff is going to make a recommendation to the 
President's White House counsel that he be removed as U.S. 
Attorney and you cannot remember that conversation?
    Attorney General Gonzales. Senator, I don't think that 
conversation happened. I don't think he ever made that 
recommendation to me or raised it. And I wouldn't characterize 
it as a recommendation. I would refer you back to his 
testimony. But whatever it was, I don't think he raised it with 
me.
    Senator Durbin. Did you ever have a conversation after the 
appointment of Patrick Fitzgerald as a Special Counsel to 
investigate the White House over the Valerie Plame incident, 
with either the President or Mr. Rove about the removal of 
Patrick Fitzgerald?
    Attorney General Gonzales. Senator, I believe the answer to 
that is no.
    Senator Durbin. Could I ask you about the other U.S. 
Attorneys that were removed? Did you ever have a conversation 
with Karl Rove about the removal of David Iglesias?
    Attorney General Gonzales. Senator, I recall a conversation 
with Mr. Rove. It wasn't a recommendation or a discussion about 
removal of Mr. Iglesias. But there was a discussion that I 
recall Mr. Rove had with me about voter fraud cases in three 
districts, including New Mexico, which of course, Mr. Iglesias 
is United States Attorney.
    Senator Durbin. What did Karl Rove say to you?
    Attorney General Gonzales. Senator, my recollection, the 
conversation was basically, I've heard complaints about voter 
fraud prosecutions or lack of prosecutions, and again, I could 
be--I'm paraphrasing. I don't recall precisely what he said, 
but it was generally about voter fraud prosecutions or voter 
fraud cases in three districts, including New Mexico.
    Senator Durbin. And there was no conclusion to that 
conversation about the fate of Mr. Iglesias?
    Attorney General Gonzales. Senator, I believe that I 
communicated this information to Mr. Sampson, but I don't 
remember or recall what happened after that.
    Senator Durbin. How about the fate of Mr. Iglesias himself? 
Was that something that you were party to, the decision for his 
removal?
    Attorney General Gonzales. It was my decision.
    Senator Durbin. And now that you reflect on that decision, 
having looked at his performance and considered the calls that 
were made by Members of Congress, do you still think that was 
the right decision?
    Attorney General Gonzales. Senator, I think that is a very 
fair question. Obviously--and, by the way, this is a matter 
being investigated by the Congress, so I am not conceding that, 
in fact, what Mr. Iglesias said was true. Senator Domenici and 
Congresswoman Wilson will have the opportunity to present their 
story. But if a Member of Congress contacts a U.S. Attorney to 
put pressure on him on a specific case, that is a very, very 
serious issue. And if, in fact, we had known, if the Deputy 
Attorney General, I believe, had known about these calls, which 
Mr. Iglesias admitted that he did not contact us, would it have 
made a difference? It probably would have made a difference. 
But now we are looking in hindsight, and so what we also know 
is that Mr. Iglesias did not report these conversations. That 
was a serious transgression. He intentionally violated a policy 
meant to protect him.
    And so as we weigh these additional facts, my conclusion is 
that I stand by the decision that Mr. Iglesias should no longer 
serve as United States Attorney.
    Senator Durbin. In the situation with Carol Lam, did you 
have any conversations with Karl Rove about her fate?
    Attorney General Gonzales. Senator, I don't recall having 
any conversations with Mr. Rove about Ms. Lam in connection 
with this process.
    Senator Durbin. Let me conclude, Mr. Chairman. I thank 
everyone for their patience here. I am going to send this 
article down to you, and I wish you would take a look at it. It 
is an article published in the Chicago Tribune April 17th by 
Patrick M. Collins. Do you know Mr. Collins?
    Attorney General Gonzales. I don't believe I do, sir.
    Senator Durbin. Mr. Collins served as an Assistant U.S. 
Attorney from 1995 to March 2007, was the lead prosecutor in 
the trial of a former Governor of Illinois, worked with Mr. 
Fitzgerald. He believes that your continued service creates a 
problem for people who have served in his position as Assistant 
U.S. Attorney, and he believes that, frankly, it raises 
questions about their impartiality when it comes to public 
corruption cases. He says in conclusion here, ``all U.S. 
Attorneys `serve at the pleasure of the President,' .  .  . But 
they must never serve only to please the President.''
    Attorney General Gonzales. I agree with that.
    Senator Durbin. And I think what we have heard here about 
some of the political considerations, comments about ``loyal 
Bushies'' by Kyle Sampson, the involvement of Mr. Rove in 
decisions about the fate of some of these U.S. Attorneys, 
raises serious questions as to whether or not your continued 
service is going to make it difficult for professional 
prosecutors in the Department of Justice to do their job 
effectively.
    Attorney General Gonzales. Senator, if I could respond, I 
think, again, it's absolutely true that this is not about 
Alberto Gonzales. It's about what's best for the Department and 
whether or not I can continue to be effective in leading this 
Department.
    I believe that I can be. I think that there are some good 
things that working with this Committee I can accomplish on 
behalf of this country. Clearly, there are issues that I have 
to deal with, and I am going to work as hard as I can to re-
establish trust and confidence with this Committee and Members 
of Congress, and, of course, with the career professionals in 
our Department. And all the credit, everything that we do, the 
credit goes to them. And so when there are attacks against the 
Department, you're attacking the career professionals.
    Senator Durbin. Mr. Gonzales, that is like saying if I 
disagree with the President's policy on the war I am attacking 
the soldiers.
    Attorney General Gonzales. What I'm saying is--
    Senator Durbin. The fact of the matter is--
    Attorney General Gonzales.--you should attack me. You 
should attack me.
    Senator Durbin.--your conduct in this Department--your 
conduct in this Department has made it more difficult for these 
professionals to do their job effectively--
    Attorney General Gonzales. And I'm going to deal with that.
    Senator Durbin.--and if you ignore that reality, then you 
cannot be effective as an Attorney General.
    Attorney General Gonzales. Senator, I understand that, and 
I'm going to work at that. What I'm saying is that be careful 
about criticizing the Department. Criticize me.
    Senator Durbin. Mr. Gonzales, this testimony today is from 
you about your reputation. It is not about the reputation of 
the men and women working in these offices.
    Attorney General Gonzales. Thank you, Senator.
    Chairman Leahy. What we will do is, so everybody will 
understand--Officer?
    What we will do, if I might have the attention of everybody 
here, we will break for lunch until 2 o'clock. After lunch, 
provided the funeral is over, we will recognize Senator 
Grassley, then Senator Cardin, then Senator Coburn, then 
Senator Whitehouse, then Senator Kyl, then Senator Biden, and 
we will go to a second round. Is that OK with you, Senator 
Specter.
    Senator Specter. Yes, sir.
    Chairman Leahy. We stand in recess.
    [Whereupon, at 12:37 p.m., the Committee was recessed, to 
reconvene at 2 p.m., this same day.]
    AFTERNOON SESSION [2:35]
    Chairman Leahy. I want to welcome everybody back. As you 
understand, we had votes in the Senate, which delayed us coming 
back, but it was the Port Security Act, which is a significant 
piece of legislation, which I know the Attorney General and 
everybody on this Committee has supported, and a significant 
piece of legislation which we passed, and I thank all the 
Senators who supported it.
    As I mentioned this morning, Senator Grassley had to be at 
a funeral and would have been recognized much earlier this 
morning, but we will begin, Senator Grassley, with you.
    Senator Grassley. Thank you very much.
    General Gonzales, I have reserved judgment on what has 
happened with the firing of U.S. Attorneys. I have to admit 
that it has been difficult. The inconsistent information has, 
unfortunately, made what may be a perfectly explainable 
situation into something that many have already concluded was 
misconduct. Your testimony today--and I left about the time you 
were starting your opening statement, so I have missed 
everything since then. But your testimony today, it seems to 
me, is extremely important, at least for me, to sort through 
all the facts and draw my own conclusions. I hope your 
testimony sets the story straight and clears the waters.
    No one seriously takes issue with the statement that U.S. 
Attorneys serve at the pleasure of the President. The President 
has the authority to hire or fire U.S. Attorneys. If an 
individual was not pursuing his priorities aggressively enough 
or if the President wanted to give another candidate an 
opportunity, those things are not against the law. However, it 
is improper for a President to fire a U.S. Attorney for 
retaliatory reasons or to impede or obstruct a particular 
prosecution for unjust political or partisan gain. We do not 
want to see the independence and integrity of our attorneys 
compromised to a point where they are not serving their 
district in the interest of justice.
    I do not know if the U.S. Attorneys were fired because they 
were pursuing or not pursuing investigations or prosecutions 
based on political motivation. But once the administration 
started to make representations to Congress and the American 
people about how or why the firings came about, those 
representations had to be accurate and complete. Yet documents 
produced by your Department are inconsistent with public 
statements and congressional testimony of other officials and 
we just do not have a straight story on what transpired and 
whether the motivations for what happened were pure.
    You are well aware that I am very serious about conducting 
congressional oversight. Oversight is a core responsibility of 
my job as a Member of the Senate. I am an equal opportunity 
oversight person when it comes to that. Over the years I have 
looked into both Republican and Democrat administrations with 
the same vigor. So to get complete and truthful information is 
important for me, but I feel that on many occasions this 
administration has made a concerted effort to thwart my 
oversight efforts. Just last week, the Justice Department tried 
to block a convicted felon from testifying before the Finance 
Committee. I was glad to say that the Federal courts disagreed 
with you, and in the end we got our witness.
    I know that the Justice Department has produced documents 
to the Judiciary Committee in response to our request for 
information on U.S. Attorney firings, but your representations 
to Congress need to be accurate and complete, or else our 
oversight activities will not be able to get to the bottom of 
anything. We should not be getting conflicting statements from 
the Attorney General and/or his staff. We should not be getting 
conflicting statements at all. The story needs to be 
consistent, complete, and, of course, it must be the truth. We 
and the American people expect nothing less from our top law 
enforcement officials.
    So, General Gonzales, I hope that you will be able to be 
complete and forthcoming and candid with me as I ask questions. 
I am looking for my first question to see what the environment 
was and the situation all this took place. I would like to 
start by asking you for an explanation as to why there are so 
many inconsistencies. There is something about the environment 
you work in that would produce these inconsistencies. How does 
that happen?
    Attorney General Gonzales. Senator, I think as an initial--
well, first of all, I regret the inconsistent statements, and 
as I said in my opening statement, the misstatements are my 
mistakes, and I accept responsibility for it.
    I think as an initial matter, when I came out on March 13th 
and gave the press conference, I made some statements that 
were, quite frankly, overbroad. I should have been more precise 
in my statements. One of the reasons is because--one of the 
primary reasons is because I had not gone back and looked at 
the documents. I hadn't gone back and looked at my calendar, 
for example, about the November 27th meeting.
    And so, in hindsight, maybe I got out there too quickly, or 
certainly my statements were too broad. I felt a tremendous 
need to come out quickly and defend the Department about 
accusations about improper conduct. And that is why I made the 
statements on March 13th, and in hindsight that was a mistake, 
because obviously we had not gathered up all the documents 
which we have now produced to the Congress. But I accept full 
responsibility for not being more careful.
    Senator Grassley. So you are not running a Department where 
there is enough protocol so that everybody can be on the same 
page?
    Attorney General Gonzales. I wouldn't say that, Senator. 
Again, this was a situation where there was a lot of 
information--we are talking about a 2-year process, and 
conversations and meetings that happened over a 2-year process. 
And I did not do my job in making sure that I had all the 
information before I made my first public statements. And those 
first public statement, I should have been more careful about 
those statements.
    Senator Grassley. Oka7. In prior statements, you indicated 
that you really had not been involved in any discussions or 
deliberations to remove the U.S. Attorneys. But e-mails 
indicated that you had discussions with Mr. Sampson about this 
in late 2004 or early 2005 and that you attended a November 
2006 meeting just prior to the firing. Mr. Sampson testified 
before this Committee that your statements were not fully 
accurate, and your testimony today backtracks on what you said 
earlier.
    Why is your story changing? Can you tell us when you first 
got involved and the extent of your participation in the 
process to evaluate and replace U.S. Attorneys? And, 
additionally, who came up with the plan to evaluate U.S. 
Attorneys?
    Attorney General Gonzales. Yes, sir. Well, the reason why 
my statements initially were incorrect is because I had not 
gone back and looked at the record. Since then, I have tried to 
clarify it. I think Mr. Sampson even in his testimony said that 
I have clarified my statements.
    The meeting--the e-mail that you are referring to, the 
discussion that happened in either--I think January 2005, as I 
recall, Senator, would relate to a discussion that would have 
happened in Christmas week, between Christmas and New Year's, 
and just weeks before my confirmation. And so I don't have a 
recollection of that discussion, quite frankly, but what we 
have tried to do since this time, since early March, is gather 
up as much information as we can and provide to the Congress 
documents and make people available so that we can get to the 
bottom of what happened here.
    And I'm here to provide what I know, what I recall as to 
the truth in order to help the Congress help to complete the 
record, but there are clearly some things that I don't know 
about what happened, and it is frustrating to me as head of the 
Department to know that--to not know that still today. But I 
haven't done that--I haven't talked to witnesses because of the 
fact that I haven't wanted to interfere with this investigation 
and Department investigations.
    Senator Grassley. Who did you discuss the review with at 
the White House? Did you question any of the recommendations? 
Were you comfortable with the process and the methodology for 
the final recommendations? And what was your personal input in 
that process?
    Attorney General Gonzales. Senator, as to whether or not I 
had a specific conversation with individuals about the review 
process is not something that I can recall having that kind of 
conversation. I had understood that there was a process in 
place where Mr. Sampson would consult with the senior 
leadership in the Department, people that knew the most 
information about U.S. Attorneys, and that he would bring back 
to me a consensus recommendation of the senior leadership of 
where there were districts in terms of issues and concerns 
about the performance of United States Attorneys.
    Still today, I think that was an appropriate thing for a 
manager to do, is to try to identify where there were areas of 
improvement. Clearly, there were mistakes made in the 
implementation of this plan and the review of this plan, and I 
accept responsibilities for those mistakes.
    Senator Grassley. The red light is on, but there was a 
question just prior that you did not answer. Who came up with 
the plan to evaluate U.S. Attorneys?
    Attorney General Gonzales. Senator, I think--that was my 
plan. I believed it was appropriate to look to see whether or 
not the United States Attorneys were doing a good job. Were 
they doing their job? I felt that was a good management 
decision to simply look to see whether or not the United States 
Attorneys were doing their job. I think the American people 
want to know that public servants are serving them.
    Chairman Leahy. Did you get all you need?
    Senator Grassley. Yes.
    Chairman Leahy.
    Senator Cardin.
    Senator Cardin. Thank you, Mr. Chairman.
    Mr. Gonzales, I have listened to the entire hearing here 
today, listened to your response to my colleagues' questions, 
answering my colleagues' questions, and I find some things 
troubling. But I think what concerns me the most is after 
reviewing all the facts involved in the dismissal of the U.S. 
Attorneys, having a chance now to really go into detail and 
understand all the problems that have developed, you stand by 
the decision to remove these U.S. Attorneys.
    You have acknowledged, and rightly so, that dismissing U.S. 
Attorneys would be wrong if it interferes with or influences a 
particular prosecution for partisan political gain. Your former 
Chief of Staff, Mr. Sampson, stated basically the same thing 
when he said it would be wrong if it was an effort to interfere 
with or influence a prosecution of a particular case for 
political or partisan advantage. Yet Mr. Sampson acknowledged 
that a factor that was used in the consideration would be 
losing the trust and confidence of important local 
constituencies in law enforcement or government. Mr. Sampson 
confirmed--a question that I asked him--that local political 
concerns from partisans may have been influential in the 
firing.
    You have said a couple times that you had confidence in the 
process that had been set up. How did you know that wrong 
political considerations were not being used in the advice that 
was being given to you on the firing of these U.S. Attorneys?
    Attorney General Gonzales. Senator, I think that's a fair 
question. I certainly know the reasons on which I made my 
decision, and I, quite frankly, relied upon people that I 
trusted to make a recommendation to me. I think I'm justified 
in relying upon the Chief of Staff to bring forward to me a 
consensus recommendation of the senior leadership of the 
Department.
    I'm not aware of anything in the documentation or anything 
with respect to testimony that would support the allegation 
there was anything that was improper that happened here. But, 
again, as I've said before, just to reassure myself, I did ask 
the Office of Professional Responsibility and they are working 
with the Office of the Inspector General to ensure that nothing 
improper happened here.
    Senator Cardin. I asked Mr. Sampson at a hearing in this 
Committee, ``What safeguard did you have in the process to make 
sure that that was not being done? ''--that is, improper 
political considerations. Mr. Sampson replied, ``I don't feel 
like I had any safeguards in the process.''
    Attorney General Gonzales. Senator, I would never ask 
someone to leave their position as United States Attorney for 
an improper reason. The truth of the matter is, of course, 
public corruption cases, for example, as a general matter, are 
not tried by the United States Attorney. They are tried by the 
Assistant United States Attorney and assisted by career people.
    Senator Cardin. But the person who is giving you the 
advice, who puts it all together, says there are no safeguards 
in the process to filter out improper local political pressure 
that may have been exerted to influence who is on that list. 
And yet you have said in your testimony, ``I also have no basis 
that anyone involved in the process sought the removal of U.S. 
Attorneys for improper reasons.'' How do you know that?
    Attorney General Gonzales. Senator, based on what I know--
and, again, it wasn't just the Chief of Staff. I was relying 
upon what I understood to be the consensus recommendation of 
the Department, in particular, the Deputy Attorney General. 
U.S. Attorneys report to the Deputy Attorney General. He is a 
former colleague. I don't believe that he would make a 
recommendation based upon improper reasons that a former 
colleague, a United States Attorney, should be removed.
    Senator Cardin. Now you know that of the seven U.S. 
Attorneys who were removed on the same day, five had 
controversial political investigations in their jurisdiction, 
including in New Mexico, where there was a probe of State 
Democrats and Republicans were unhappy that in Nevada there was 
a probe of a Republican Governor in Arizona, there were probes 
of two Republican Congressmen in Arkansas, there was a probe of 
a Republican Governor in Missouri, in California Representative 
Cunningham's investigation which was being expanded; and 
Washington declined to intervene in the disputed gubernatorial 
election that angered local Republicans. You now know all that. 
This was a unique process that was being used. It had not been 
used before to remove this many attorneys for this type of a 
reason.
    Don't you see that this might have been interpreted as 
trying to send a message to U.S. Attorneys around the country 
to stay away from sensitive political corruption cases?
    Attorney General Gonzales. Senator, I think that is a fair 
question, and I spoke with the United States Attorney 
community, I think the week of March 12th, and I told them what 
I expected, and that is, no one should speed up or slow down a 
prosecution or investigation in any way; that we follow the 
evidence, we make decisions on cases based on the evidence and 
not based upon the target is a Republican or Democrat. And if 
you look at the record of the Department, Senator--
    Senator Cardin. That is not really my question. My question 
is the public perception.
    Attorney General Gonzales. Yes, of course, I--
    Senator Cardin. Mr. Sampson acknowledged a lack of 
foresight that people would perceive it as being done to 
influence a case for improper reasons. Your former Chief of 
Staff has already acknowledged that.
    Looking at all the information we now know, do you still 
stand by the decision that this was the right thing to do, the 
dismissal of these attorneys?
    Attorney General Gonzales. I do, Senator. I do. One thing 
we have to understand--and I have gone back and thought about 
this a lot, believe me, and looking at the documents, and I had 
a conversation with the Deputy Attorney General about this, 
whether or not this was still the right decision, did he stand 
behind his recommendation. And based on what I know today, I do 
stand behind the decision because I have no information to tell 
me that, in fact, the decisions were based upon improper 
motive.
    Senator Cardin. So you disagree with Mr. Sampson on the way 
that he had analyzed what is out there. Or do you think 
perception is Okay?
    Attorney General Gonzales. No, I don't--I think perception 
is very, very important.
    Senator Cardin. Do you disagree with the perception that is 
out there?
    Attorney General Gonzales. I don't disagree with the 
perception. I think perception--
    Senator Cardin. But you would still do the same thing 
again.
    Attorney General Gonzales. Senator, but I have also 
admitted mistakes in the way we did this and that it should 
have been done a different way. The process should have been 
more rigorous and more structured.
    Senator Cardin. Let me just challenge you on the process 
for one moment. I delegate to my senior staff for advice on a 
lot of issues, but they try to understand where I am coming 
from on these issues. You had some very sensitive political 
discussions on at least three of these U.S. Attorneys. Your 
senior staff knew about those discussions. Did it ever appear 
to you that maybe they understood that when they made the 
recommendation to you that they were trying to adhere to what 
they thought you wanted?
    Attorney General Gonzales. Well, Senator, I think I've been 
very, very clear about my commitment not to improperly 
interfere with cases, and--
    Senator Cardin. You understood the political contacts that 
had already been made with you, including the President of the 
United States.
    Attorney General Gonzales. Senator, I don't know about--I 
can't speak to as to what people understood about what the 
President of the United States may have said to me. But, 
listen, Senator, I have been very, very committed to ensuring 
that the Department makes this decision not based on politics 
but on the evidence. And if you look at the record of the 
Department in prosecuting public corruption cases in 
particular, it has been extremely strong all across the board.
    Senator Cardin. That is my concern. The message you sent 
out is that it was too strong in some of the jurisdictions. 
That is why you dismissed the--that is the impression: that is 
why you dismissed the U.S. Attorneys.
    Attorney General Gonzales. I would be concerned about that 
perception, and that's why I spoke to the U.S. Attorney 
community the week of March 12th to reassure them that that is 
not what I expected of them.
    Senator Cardin. I would tell you that public confidence is 
also part of supporting the U.S. Attorney's Office, and that 
has been undermined by your own acknowledgment and by Mr. 
Sampson's acknowledgment.
    Attorney General Gonzales. No question this has been an 
unfortunate episode.
    Senator Cardin. But you would still do the same thing 
again. I don't understand that. I guess that is--
    Attorney General Gonzales. Senator, maybe I should rephrase 
it this way: I would use a different process--a different 
process--
    Senator Cardin. The same conclusion.
    Attorney General Gonzales. Senator, it depended what the 
recommendation would be coming to me. But hopefully--I believe 
that we had a good process in place. I now know that that is 
not true, that it was flawed, and that we should have used a 
different kind of process. But I have no reason to believe that 
these were improper motives in terms of the basis of the 
recommendation.
    Senator Cardin. Thank you.
    Chairman Leahy. Thank you very much, Senator Cardin.
    Senator Coburn.
    Senator Coburn. Thank you, Mr. Chairman.
    General Gonzales, in one of the statements earlier today, 
you stated in terms of the insertion of the ability of the 
administration to replace U.S. Attorneys--and if this quote is 
not right, please pardon me; I think I wrote it down--that you 
didn't think someone should decide who works for you at the 
U.S. Attorney's Office?
    Attorney General Gonzales. I said that I--I was troubled--
well, I can't recall exactly what I said, but the reason why I 
supported a change in the law, 28 U.S.C. 546, was because of 
the district judges making decisions about who should serve on 
my staff as United States Attorneys.
    We had had a recent incidence in South Dakota with respect 
to trying to put someone in as the Acting United States 
Attorney. The judge there wanted to put someone in who we had 
concerns about. And so we were--I supported the change in the 
law for that reason, not to circumvent--
    Senator Coburn. I understand. All right. You testified 
earlier this morning about Bud Cummins, and you made a 
differential from him and the rest of the U.S. Attorneys and a 
difference in the date at which he was actually either notified 
or came about through that. But it was said that he had poor 
performance. Is that correct?
    Attorney General Gonzales. Senator, based on my review of 
the documents--
    Senator Coburn. I am asking you what was said formally by 
the U.S. Justice Department about Bud Cummins's performance.
    Attorney General Gonzales. Senator, I don't know what all 
has been said about performance of Bud Cummins, but clearly--
clearly--from what I can tell looking back at the documents is 
that Mr. Cummins was in a different situation for two reasons: 
one is because he was asked to resign on June 14th--
    Senator Coburn. I do not want to talk about the different 
situation. I want to talk about was the statement said that he 
was being replaced because of poor performance.
    Attorney General Gonzales. Sir, I don't recall specifically 
that statement, but if, in fact, that statement was made, then 
I apologize for that statement, because, in fact, Mr. Cummins 
was asked to resign on June 14th, and one of the reasons he was 
asked to resign is because there was a desire to place another 
well-qualified person--
    Senator Coburn. Absolutely. And I have no qualms with that, 
which really leads me to the other area. You know, what Senator 
Cardin just raised, the issue that it appears--or the 
perception that people were replaced for other than what seems 
to be the facts as you have testified and certainly looks to be 
the facts under a legitimate process for what you evaluate as 
concerns in management and leadership. But I think the damage 
to the Justice Department, the Attorney General, and you 
personally has been significant.
    Several people's reputations have been harmed, including 
Bud Cummins. Communication has been terrible. Management has 
been terrible. You were asked by Senator Cardin if you would 
make this decision again, and you said yes because you thought 
it was the right decision. The question I have for you is: How 
would you have handled it differently in terms of implementing 
the decision?
    Attorney General Gonzales. Well, sir, when you say 
implementing, you mean after the decision is made, how to 
implement it going--after the decision is made?
    Senator Coburn. Yes.
    Attorney General Gonzales. Well, one of the things I would 
have done, of course, is been more respectful in communicating 
the decision, I think a face-to-face meeting, if at all 
possible, involving the Deputy Attorney General or myself or 
certainly a phone call involving the Deputy Attorney General or 
myself instead of the Director of the Executive Office.
    I think also if, in fact, the Department was going to say 
something publicly about performance related, I think we should 
have told these individuals the specific reasons. As a legal 
matter, they are not entitled to those reasons, but I think as 
a matter of fairness, as a matter of good management, I think 
it would have been appropriate to apprise them of the concerns 
that we had. I think it would have been better, of course, to 
make them aware of those concerns before the actual decision. 
It is one of the things that I identified as a problem in the 
Department and certainly one of the things that I regret, and 
what we are going to do is institutionalize a process where we 
have at least an annual meeting face to face with every United 
States Attorney and either the Deputy Attorney General or 
myself so we can talk about issues that are of concern to us.
    Senator Coburn. You said earlier this was an unfortunate 
episode. You also said that these attorneys were evaluated 
based on their leadership skills and management skills. And you 
answered a question from Senator Graham earlier about your 
position in light of all this.
    Why would we not use the same standards to judge your 
performance in handling this event that you applied to these 
same individuals?
    Attorney General Gonzales. I think that's a fair question, 
Senator, and I think that I clearly made mistakes here--
clearly. And I accept responsibility for those mistakes, 
Senator. I've tried to identify where those mistakes were made 
and institutionalize where we can make changes to make the 
Department even stronger.
    I think the Department under my leadership in the past 2 
years, I think we have done some great things. I think the 
Department has been managed in a good way. This has not been 
managed in a good way, and I accept responsibility for that. 
But I still continue to have great faith in the career people 
at the Department. Cases still continue, investigations still 
continue. Obviously, I have a lot of work to do to restore 
confidence and trust. I am committed to doing that.
    Senator Coburn. That is not what I asked you. I said: Why 
should you not be judged by the same standards by which you 
judged these dismissed U.S. Attorneys?
    Attorney General Gonzales. Senator, again, I've identified 
my mistakes, and you'll make your decisions based upon my 
testimony, based upon the review of the record in terms of what 
has happened, and based upon the testimony of others. And, 
Senator, what I can commit to you is that--I have acknowledged 
mistakes. We all make mistakes. And I'm committed to addressing 
those mistakes and working with you to make our country even 
stronger.
    Senator Coburn. I believe there are consequences to a 
mistake. I was quoted in the paper saying I think this has been 
handled in a very incompetent manner, and I believe most 
people, I do not care which side of the aisle they are, would 
agree with that. U.S. Attorneys' reputations that were 
involved, have been harmed. The confidence in U.S. Attorneys 
throughout this country has been damaged. The reputation of the 
Attorney General's Office has been tarnished and brought into 
question. I disavow aggressively any implication that there was 
a political nature in this. I know that is the politics of the 
blood sport that we are playing. I do not think it had anything 
to do with it.
    But to me there has to be consequences to the accepting 
responsibility, and I would just say, Mr. Attorney General, it 
is my considered opinion that the exact same standards should 
be applied to you in how this was handled. It was handled 
incompetently. The communication was atrocious. It was 
inconsistent. It is generous to say that there were 
misstatements. That is a generous statement, and I believe you 
ought to suffer the consequences that these others have 
suffered. I believe the best way to put this behind us is your 
resignation.
    Attorney General Gonzales. Senator, I don't know whether or 
not that puts everything behind us, quite frankly. I am 
committed--I know the mistakes that were made here, and I am 
committed to fix those mistakes, and I'm committed to working 
with you and try to restore the faith and confidence that you 
need to have to work with me.
    Senator Coburn. Mr. Attorney General, you set the standard. 
You said leadership skills, management skills. They were sorely 
lacking in this instance, and the responsibility is to start 
with a clean slate, a new set of leadership skills, a new set 
of management skills to heal this and the country, to restore 
the confidence in this country.
    I like you as a man. I like you as an individual. I believe 
you are totally dedicated to your job in this country, but I 
think mistakes have consequences, and I believe that should be 
the one that it should be.
    I have no further questions.
    Chairman Leahy. Thank you, Senator Coburn.
    Senator Whitehouse, you are next. So people know what is 
happening, it will be Senator Whitehouse, then Senator Kyl. We 
will then start those who want a second round, begin with 
myself and Senator Specter, and we will go based on who is here 
and the order they are in.
    Senator Whitehouse, then Senator Kyl.
    Senator Whitehouse. Thank you, Mr. Chairman.
    Here is what concerns me, Attorney General Gonzales. The 
administration of justice in our country is controlled within 
structures. Some of them are constitutional structures. Some of 
them are statutory structures. But some of them are structures 
that have developed over time that amount to tradition and 
practice, but they are there for good and important reasons. My 
concern, after reading your testimony and hearing your 
testimony today is that you do not seem to be aware of the 
damage to those structures that this episode has caused. I 
would like to run a few by you just to let you know where I am 
coming from.
    The two areas where you ask us to agree with you in your 
testimony, the first is that U.S. Attorneys can be fired at 
will by the President. That is undeniably true, but I think its 
use as a rhetorical point in this discussion is highly 
misleading, deeply misleading, because I think you and I both 
know that for years, for decades, there has been a tradition of 
independence on the part of U.S. Attorneys. Once they are 
appointed, unless there is misconduct, they are left to do 
their jobs, and that rule, that practice, has existed for good 
and meaningful reason, and it cannot be overlooked by just 
blithely saying, well, the President has to power to remove 
these people. That misses the point. These people make tough 
decision. They are out there on their own very often. Very 
often the Department of Justice and the political environment 
that surrounds it is one that you want to protect them from, 
and the idea that willy nilly senior staff people can come out 
and have the heads of U.S. Attorneys, I think is highly 
damaging to that piece of structure.
    This was not customary practice; we can agree on that, can 
we not?
    Attorney General Gonzales. Senator, I think that that's--I 
do agree on that, and I do agree with you that structures and 
traditions are important. I agree with that as well.
    Senator Whitehouse. The second piece of the structure here 
that I think is significant is that although you as Attorney 
General are in command of the administration of justice in the 
Federal system, there is actually very little prosecution that 
takes place out of Main Justice. The enormous majority of the 
prosecutive authority of the United States of America has been 
dispersed out into 93 judicial districts, and it has been 
dispersed to men and women who have certain characteristics. 
One is that they are from the local community, and when they 
are done they go back and they live in that local community, 
and it is good for the administration of justice when they are 
accountable in that way for their decisions, given the power 
and often terror that prosecutor action can create in a family.
    The second is that they have to get a Senator to sign off 
on them, in fact, they have to get the majority of the whole 
Senate to sign off on them, and a President of the United 
States. When those things happen, it creates a corps, if you 
will, c-o-r-p-s, a corps of practicality, of common sense, of 
responsibility, of experience, that I consider to be a huge 
value to the administration of justice in this country.
    And in every way in which this was handled, it is highly 
destructive of that independence, whether it is people from 
Justice going out and taking these positions, whether it is 
ducking Senate confirmation, whether it is not bringing people 
from the local community up to take those positions, or whether 
it is the general level of disrespect that has been shown for 
the U.S. Attorneys through this whole process.
    I guess I would like to ask you to comment, do you think 
that that is a structural component of the administration of 
justice, that dispersion of the authority out to 93 independent 
local U.S. Attorneys that has value and that is important and 
should be protected?
    Attorney General Gonzales. I do think it has value, and I 
think that the independence of the U.S. Attorneys is important. 
I think U.S. Attorneys should feel independent to exercise 
their judgment in prosecuting cases based upon the evidence.
    However, I have to qualify that a bit, Senator, in that 
with respect to policies and priorities, again, the President 
of the United States has elected based upon his policies and 
priorities.
    Senator Whitehouse. I will spot you that, Attorney General, 
but my point is, when you are making a decision like that, 
there is a counterbalance to it. When you go to Carol Lam and 
say, you know what, you are not doing enough immigration 
prosecutions, therefore, you are fired, there are all sorts of 
collateral consequences of that, some of which are really quite 
damaging and evil, particularly when you are knocking off 
somebody who is known among her colleagues as being really the 
prime United States Attorney in the country on public 
corruption prosecutions. It sends a really rough message. So in 
the balancing between the structural protections and the 
respect and all of that, and this question of policy, I would 
hazard to you that you cannot let the policy question just run 
away with the issue.
    Attorney General Gonzales. No question.
    Senator Whitehouse. You have to think it through 
thoughtfully, and I cannot find a place in the whole tragic 
record of the situation in which that careful thought was 
administered.
    Attorney General Gonzales. No question about it. No 
question about it that we have to take into account how 
decisions may affect ongoing cases. There's no question about 
that.
    But also I think it's important for the American people to 
understand that even when there's a change at the top with the 
Attorney General or a change in the U.S. Attorney, the cases 
continue.
    Senator Whitehouse. That is true.
    Attorney General Gonzales. The cases continue to be 
investigated.
    Senator Whitehouse. As you and I know, the leadership from 
the U.S. Attorney makes a big difference. That is why you 
thought these replacements were important in the first place.
    Attorney General Gonzales. They do make a big difference 
with respect--
    Senator Whitehouse. If I may make my second point because I 
am running out of time here. It is the second thing that you 
suggest, which is we should further agree on a definition of 
what an improper reason for the removal of a U.S. Attorney 
would be. Over and over again you have used the word improper 
as sort of your target word as to where the boundary is, where 
you should and should not go, but your definition of improper 
is almost exactly the same as Kyle Sampson's.
    He came in here and testified, you said without consulting 
with anybody, and said that the improper reasons include an 
effort--and I quote--``to interfere with or influence the 
investigation or prosecution of a particular case for political 
or partisan advantage.'' Your testimony is to interfere with or 
influence a particular prosecution for partisan political gain. 
You loaded up those words. You have used them repeatedly, and I 
think that the definition of where impropriety lies, clearly, 
that would be improper, that would be grotesquely improper. But 
I think you have set the bar way low for yourself, if that is 
your standard of where impropriety is, and I would like to hear 
you comment on this. I think any effort to add any partisan or 
political dimension into a U.S. Attorney's conduct of his 
office, irrespective of whether it is intended to affect a 
particular case or not, is something we need to react to 
firmly, strongly, resolutely, and without any tolerance for it. 
You have set the bar so that it is not impropriety until it 
affects a particular case. Why did you do that?
    Attorney General Gonzales. Senator, because of the 
accusations that have been made primarily, certainly as an 
initial matter, was that there was something improper, we were 
trying to interfere with particular cases. And that's why, 
certainly, the focus in my mind was to focus on, Oaky, what is 
the legal standard? And I think it's important for us to 
understand, as an initial matter, what is the legal standard, 
what would be improper?
    Senator Whitehouse. But something a lot less than that 
would be improper, would it not? I mean when Admiral Bing got 
hanged there was the famous comment: every once in a while you 
have to hang an admiral just to encourage all the others. If 
you hang a U.S. Attorney once in a while just to discourage all 
the others, even if your intention is not to affect a 
particular case, you have to agree that would be highly 
improper.
    Attorney General Gonzales. Senator, it may be improper as a 
matter of management, some would have to wonder, is that really 
an appropriate way to manage a department? But again, Senator, 
you have to understand that--
    Senator Whitehouse. Otherwise, it would be obstruction of 
justice, correct?
    Attorney General Gonzales. These individuals have served 
their 4 years, they are holding over. There is no expectation 
of a job here, there shouldn't be, because of the fact that 
they are Presidential appointees. Now, clearly, as a management 
issue, there is value added to a person who has served as a 
United States Attorney in terms of experience, expertise, and 
so those things are very important.
    Senator Whitehouse. It is more than just a management 
issue. It is an issue about the structure through which justice 
is administered in this country, and when it is broken and when 
it is damaged, and when the Attorney General of the United 
States says the only place where impropriety exists is when 
political and partisan influence has risen to the point that it 
is intended to affect a particular case, but otherwise it is 
fine, I have a real problem. And I think everybody in America 
should have a real problem with that.
    My time is expired.
    Chairman Leahy. Thank you very much.
    Senator Kyl.
    Senator Kyl. Thank you, Mr. Chairman.
    I think I am last, and I think just about everything has 
been said, but not everybody has said it. Although I would say 
that it has been said better by some than by others, and I 
think what Senator Whitehouse just did was to set out two very 
important points well. I am not sure that the last point was 
adequately answered. In addition to being wrong, if you 
affected a particular political corruption case, would it not 
also be an improper firing if it was for the purpose of 
generally affecting or influencing political corruption cases?
    Attorney General Gonzales. That would trouble me, Senator, 
because--
    Senator Kyl. Would it not more than trouble you?
    Attorney General Gonzales. Yes, sir, I think that would be 
wrong. I think--
    Senator Kyl. Okay, thank you.
    Attorney General Gonzales. I think U.S.--well, go ahead.
    Senator Kyl. So I think you and Senator Whitehouse and I 
can all agree that the standard that you set forth was not the 
one and only situation that would be improper, but described 
the situation that was being attributed to the Department of 
Justice in this particular episode.
    Attorney General Gonzales. We do not want to send a message 
that prosecutors should not follow the evidence and prosecute 
people. We want them to do that, absolutely. We don't want them 
to be discouraged, and I don't want them to be discouraged from 
coming forward and being candid with their views about issues 
or about cases.
    Senator Kyl. Let me ask you, as far as you know, since this 
has all occurred, has there been any difference in the way that 
any of the political corruption cases has been handled by the 
career prosecutors in any of the offices?
    Attorney General Gonzales. Senator, not to my knowledge, 
but I think the American people need to understand that we have 
limited information in Main Justice about cases being 
prosecuted around the country. We really have limited 
information, for good reason, I think.
    Senator Kyl. Yes, indeed, and I would close this part 
because I have two other questions I want to ask. There are 
thousands of pages of documents and hundreds of hours of 
testimony and interviews, and I found it instructive that 
Senator Schumer would suggest this morning what I gather is a 
new conspiracy theory standard, which is if the evidence does 
not show any violation of what all would agree would be proper 
practices, in this case, an attempt to influence political 
corruption cases, that therefore, the burden should shift to 
the Department of Justice to prove that it did not happen, in 
effect, to prove a negative. That would be wrong. It would be 
unprecedented. In my view, it would be dangerous.
    Since this is an oversight hearing, I would like to ask 
about a couple of other matters. I want to thank you, first of 
all, for visiting recently with me about funding for crime 
victims' rights. As you know, I remain very concerned about 
that, and I just want to follow-up on our conversation and see 
if we can get some additional information by having a meeting 
next week, not involving you, but involving both John Gillis, 
who is the Director of the Office for Victims of Crime, and 
Will Moschella. Would you assist me in setting up such a 
meeting next week?
    Attorney General Gonzales. Yes, sir.
    Senator Kyl. Thank you very much. And on the other matter, 
relating to Internet gambling, I want to applaud your office 
for cracking down on Internet gambling through a number of 
prosecutions that have recently occurred. As you know, last 
October 13th, the President signed into law the Unlawful 
Internet Gambling Enforcement Act, and one of its purposes is 
to target these offshore gambling operations that are not 
readily subject to U.S. prosecution. The law creates tools to 
enforce Federal and State gambling laws, particularly with 
these website operators offshore. The purpose is to cutoff the 
financial lifeblood of Internet gambling businesses by 
requiring the financial institutions and payment systems to 
block illegal Internet gambling transactions. I know you are 
aware of this background, but let me just, one more quick 
paragraph here.
    Most illegal gambling entities operate offshore beyond the 
personal jurisdiction of U.S. law enforcement. So the financial 
regulations authorized under this new law are critical to 
effective implementation of the law, and under Section 5364 of 
Title 31 U.S.C., the regulations must require financial 
institutions to implement policies and procedures to identify 
and block funds related to illegal Internet gambling. The 
regulatory authority is broad to allow Treasury to adapt the 
procedures to the expediencies of different types of payment 
systems. Under the law regulations are to be written by the 
Treasury Department and the Federal Reserve Board, in 
consultation with the Attorney General.
    At the DOJ oversight hearing on January 18th I discussed 
with you the need for your office to work with Treasury so 
these regulations can be quickly issued, and you testified that 
you had already initiated discussions with Treasury, the 
process is moving hopefully and can be completed in an 
expeditious manner.
    On March 15th I sent to you and Secretary Paulson, a letter 
signed by Judiciary Committee Members Specter, Cornyn, Sessions 
and Brownback, noting time was of the essence, and urging the 
regulations provide financial institutions with a periodically 
updated list of gambling operations to whom transactions should 
be blocked. Earlier this month I reiterated that same concern 
for that list with you.
    Just one quick prelude to the trigger that I will pull here 
on my three or four questions. Both people from the Department 
of Justice and the Department of State have noted that a major 
concern that the Department has about online gambling is that 
Internet gambling businesses provide criminals with an easy and 
excellent vehicle for money laundering. That was testimony of 
your Deputy Assistant Attorney General of the Criminal 
Division, Mr. Malcolm, and from the State Department, just 
quoting two lines, ``Internet gambling is particularly well 
suited for the laying and integration stages of money 
laundering. Internet gambling operations are in essence the 
functional equivalent of wholly unregulated offshore banks with 
the better accounts serving as bank accounts for account 
holders who are in the virtual world virtually anonymous. For 
these reasons, Internet gambling operations are vulnerable to 
be used not only for money laundering but also for criminal 
activities ranging from terrorist financing to tax evasion.''
    Now, four quick questions. First, do you agree with me that 
regulations need to be strong in this area?
    Attorney General Gonzales. Absolutely.
    Senator Kyl. You are familiar with the March 15th letter I 
mentioned. The letter notes that the House Financial Services 
Committee report expressly states the law contemplates a 
mechanism whereby banks and other financial service providers 
will be provided with the identity of specific Internet 
gambling bank accounts to which payments are to be prohibited. 
Does that seem reasonable to you?
    Attorney General Gonzales. Senator, I think there are some 
operational issues for us, quite frankly, with respect to 
whether or not we can develop such a list. What we're saying is 
these guys are breaking the law, and quite frankly, as a normal 
matter, what we do is we prosecute that. And so I know my staff 
has been consulting with your staff, trying to work through 
this because I'm as anxious as you are to try to get these 
regulations working so we can do a better job of enforcing the 
law against these--
    Senator Kyl. But providing that information specifically to 
the financial institutions would offer them certainty as to 
their legal obligations and would assist them in ensuring that 
the law would be effectively enforced, would it not?
    Attorney General Gonzales. It would certainly provide more 
certainty. I'm not saying it can't be done. We're trying to 
work through this, Senator, and I certainly understand your 
interest in this, and my staff is working as hard as we can to 
see if we can find a way to do this.
    Senator Kyl. What I am interested in though, since Treasury 
does not have access to the same information DOJ does, and the 
list of these improper sites needs to come from DOJ rather than 
Treasury, and the regulations are to be provided by Treasury in 
consultation with the Department of Justice, whether you will 
agree with us that the Department of Justice should do 
everything it can to gather this information together and 
provide it to the Department of Treasury, not just once, but on 
some appropriate ongoing basis?
    Attorney General Gonzales. Sir, what I can commit to you is 
we are going to do everything we can to make sure these 
regulations are strong and that we get them implemented as 
quickly as we can. That's what I can commit to you, sir. I know 
this is an important issue to you. It's an important issue to 
me, but we need to do it the right way and I think we can--I'm 
not saying we can't do this list. We're still looking at this. 
It's very, very hard.
    Senator Kyl. If I can just conclude, Mr. Chairman. Treasury 
is just about to issue the regulations. They need input from 
DOJ.
    Attorney General Gonzales. They sure do. Yes, sir, I'm 
aware of that.
    Senator Kyl. It needs to occur quickly.
    Attorney General Gonzales. Yes, sir.
    Senator Kyl. Thank you very much, Mr. Chairman.
    Chairman Leahy. Thank you, Senator Kyl.
    Mr. Attorney General, late last week the White House 
spokesperson claimed that an unknown number of e-mails, 
including those of Karl Rove from both White House accounts, 
apparently those sent or received, using Republican National 
Committee accounts were lost. Mr. Rove's attorney, in the 
investigation that led to Scooter Libby's conviction for lying, 
suggested that U.S. Attorney Patrick Fitzgerald, as part of the 
Department of Justice, obtained all of Mr. Rove's e-mails as 
part of the investigation into the leak of the identity of a 
covert CIA operative.
    If that is the case, those e-mails would be in your 
possession or in the possession of the Department of Justice. 
What do we have to do to obtain Mr. Rove's e-mails relevant to 
the development and implementation of the plan to replace U.S. 
Attorneys and the Committee's investigation into that matter?
    Attorney General Gonzales. Senator, I was not aware that--I 
didn't see that article, wasn't aware that Mr. Fitzgerald had 
that information, or if, in fact, the Department still has that 
information, so I would have to go back and look to see what, 
in fact, the facts are.
    Chairman Leahy. If he does have the information, and it 
involves e-mails relevant to the development and implementation 
of the U.S. Attorneys' plan--
    Attorney General Gonzales. Sir, I believe that those--well, 
I don't have the answer to that, Senator. I know that they're 
of interest to the Committee, and obviously, the Department 
wants to be cooperative with the Committee. There may be White 
House equities here that need to be considered, and so I don't 
have an answer--
    Chairman Leahy. We are not talking about e-mails from the 
President. In fact, the President does not use e-mail, as I 
understand, am I right?
    Attorney General Gonzales. As far as I know, that's 
correct, sir. But the fact that they may have been 
communications over an RNC account doesn't mean that they're 
not Presidential records. If, in fact, it relates to Government 
business and they're transmitted over an RNC account, they 
could nonetheless be Presidential records, and so there would 
be a White House interest in those records.
    Chairman Leahy. These are the records supposedly that were 
lost though.
    Attorney General Gonzales. Senator, I don't know the 
significance of these e-mails. What I'm saying is if, in fact, 
they exist--
    Chairman Leahy. Let me ask you this. The White House 
Counsel's Office is responsible for the establishment and 
oversight of these kind of internal rules, conduct. When you 
served as White House Counsel--you were there for 4 years--what 
was the policy and practice with regard to Karl Rove and other 
political operatives at the White House using Republican 
National Committee e-mail accounts to conduct official 
Government business?
    Attorney General Gonzales. Well, of course, Senator--
    Chairman Leahy. That would be a policy set by your office. 
What was the policy?
    Attorney General Gonzales. Senator, there were a few people 
in the White House, as I recall, who used nongovernmental 
communications equipment. That was done actually, quite 
frankly, for legitimate reasons in terms of not wanting to 
violate the Hatch Act and using Government facilities for 
political activity that is permitted under the Hatch Act for 
certain individuals in the White House.
    Chairman Leahy. What was the policy? Could they conduct 
official business on those--
    Attorney General Gonzales. I think the intent of the 
policy, as I recall, Senator, is that those e-mails were to be 
used primarily for nongovernmental purposes, but in fact, but 
if there was governmental transactions or communications 
communicated over these nongovernmental communications 
equipment, that there ought to be some kind of effort to 
preserve that communication if, in fact, these are Presidential 
records.
    Chairman Leahy. There ought to be or was there a policy 
that there had to be?
    Attorney General Gonzales. I think the policy--I have to go 
back and look at it--was the policy was that it should be 
preserved, printed out or somehow forwarded to a Government 
computer.
    Chairman Leahy. Are we talking about two or three computers 
or a number of computers?
    Attorney General Gonzales. Senator, I don't recall the 
number.
    Chairman Leahy. If the White House spokesperson says as 
many as 50 current White House officials had these separate RNC 
or other outside e-mail accounts to conduct official business, 
would that sound accurate?
    Attorney General Gonzales. Sir, I would have no way of 
knowing.
    Chairman Leahy. As White House Counsel, did you conduct any 
audit or oversight of the use of nongovernmental e-mails by 
White House personnel?
    Attorney General Gonzales. Senator, I don't recall there 
being an audit. We provided guidance, but I don't recall such 
an audit.
    Chairman Leahy. Is there anybody investigating this issue 
now?
    Attorney General Gonzales. At the Department of Justice or 
at the White House?
    Chairman Leahy. Are you aware of anyone investigating this 
issue now?
    Attorney General Gonzales. Senator, from what I understand 
in the papers is that I think the Counsel's Office is looking 
to see what happened here. I don't know if that's what you mean 
by an investigation. I think there is an effort, but I haven't 
spoken to the Counsel's Office about this issue as to whether 
or not they're doing an investigation to see what happened.
    Chairman Leahy. And you are not doing any investigation 
from the Department of Justice?
    Attorney General Gonzales. Senator, I'm not aware that 
there is an investigation that's ongoing with respect to this 
issue.
    Chairman Leahy. In all likelihood, something like that 
would be brought to your attention, would it not?
    Attorney General Gonzales. Well, Senator, I'm aware of it, 
so--you mean investigation? Senator, I don't know if such an 
issue would be brought to me. I expect the career folks to 
simply do their job and--
    Chairman Leahy. You have been Attorney General since 2005. 
Have you done anything to ensure that political operatives, Mr. 
Rove and others, or his deputies, not use the Republican 
National Committee e-mail accounts for official Government 
business?
    Attorney General Gonzales. Senator, again, that would not 
be necessarily illegal or criminal. The obligation--
    Chairman Leahy. Have you taken any official position on it?
    Attorney General Gonzales. As Attorney General, I don't 
believe--I don't recall taking such a position, sir.
    Chairman Leahy. What was Monica Goodling's role in the 
process of evaluating U.S. Attorneys and choosing U.S. 
Attorneys for termination?
    Attorney General Gonzales. Senator, I don't know of 
everything that she did in connection with this issue. Her job 
at the Department was senior counselor. She was also the White 
House liaison. She worked on budget issues and special 
projects. She, in essence, supported Mr. Sampson. Since Mr. 
Sampson was coordinating this effort, my assumption is that she 
coordinated Mr. Sampson's efforts in connection with this 
review process.
    Chairman Leahy. I noted a reporter for Newsweek, Michael 
Isikoff, highly respected, wrote about your testimony, what it 
does not say. He observed you never say if you talked to 
Harriet Miers. An even more conspicuous omission is your 
failure to mention talks about the subject of U.S. Attorneys 
with Karl Rove, the President's chief political adviser. I had 
asked you to include in your written statement a full and 
complete account of the development of the plan to replace U.S. 
Attorneys. Have you told us all you can recall about your role, 
and the White House's role in the development of the plan to 
replace U.S. Attorneys?
    Attorney General Gonzales. In terms of what I know, 
Senator, and not in terms of what I have since learned, it is 
already in the documents. I suspect the Committee, Members of 
this Committee, have a lot more information about what happened 
here. I'm here to supplement the record by telling you what I 
know.
    Chairman Leahy. You told us all you can about your role?
    Attorney General Gonzales. Senator, I think the written 
statement reflects what I recall with respect to the 
development of the plan. There are some conversations that are 
not included that I've tried to try to inform the Committee 
about in response to certain questions today.
    Chairman Leahy. The President ever tell you specifically to 
fire a U.S. Attorney?
    Attorney General Gonzales. I don't recall the President 
ever telling me specifically to fire a United States Attorney, 
sir.
    Chairman Leahy. Part of my problem is, we have had a number 
of statements about the dismissal of these eight U.S. 
Attorneys. I just want to know which one is the accurate one, 
your January 18th testimony, or your March 7th op-ed in USA 
Today, or your March 13th press conference, or your March 26th 
interview with Pete Williams on MSNBC, or your written 
testimony that was submitted in advance today, or your live 
testimony here today? Which one is the one we should grab hold 
of and say, this is the accurate statement, this is the one we 
can go to the bank with?
    Attorney General Gonzales. Senator, again, I've not done 
anything intentional, and I have made misstatements, and those 
misstatements, those are my mistakes, and I accept 
responsibility for it. If there were specific issues that you 
have questions about, I'm happy to try to answer your question.
    Chairman Leahy. It would be--well, my time is up. I do have 
a lot of specific questions, simply because those statements I 
mentioned, each one on this subject, each one varies.
    Senator Specter.
    Senator Specter. Thank you, Mr. Chairman.
    Understandably, most of the questions today have been on 
the issue of the replacement of United States Attorneys, but 
there are many other issues of great concern coming within the 
purview of the Department of Justice on this oversight hearing. 
And I would like to turn to the massacre at Virginia Tech on 
Monday. The Congress has acted on campus safety. In 1990, 
legislation was enacted known as the Jeanne Clery Act after a 
young woman was brutally raped and murdered in Lehigh 
University in Pennsylvania. And that law requires campus 
authorities to notify in a timely way the campus community on 
crimes considered to be a threat to other students or 
employees.
    Well, we do not have a crime which was reported as to Cho 
Seung-Hui, but there were a number of indicators, which I want 
to explore with you to see what might be done by way of 
amendments to the Act or other legislation.
    In late 2005, two female students complained separately 
that they were stalked by Cho. He contacted them 
inappropriately, personally, online and by phone. Campus police 
obtained a court order requiring Cho to be evaluated at a 
psychiatric facility, and he was released after an overnight 
study finding him to be potentially suicidal.
    Cho's work in an English class alarmed his professor, who 
said that Cho wrote exceedingly dark essays about death and 
murder. He was eventually removed from the class for his 
antisocial behavior, and another professor reportedly tutored 
Cho and had a signal with somebody in the room to mention the 
name of a specific individual if there was some threat.
    The law obviously cannot reach every potential threat or 
identify them. But what I would ask you to do, Attorney General 
Gonzales, is to undertake a more detailed study as to what we 
know about Cho Seung-Hui and to see if there is any ambit that 
law enforcement could act on.
    One thought comes to me. When two women reported that he 
stalked them, they could have been compelled to come forward. 
The State, the prosecutor, has the authority to subpoena 
witnesses. It is a crime against the Commonwealth, against the 
State, not just the individuals. So that might have been 
undertaken to give more of a background for some action. But to 
the extent that we can find some way to deal with these 
signals, it would be very useful. The public ought to--we ought 
to be doing what we can to reassure the public that we will 
look at the facets of what has happened here.
    The President had a town hall meeting after the Amish 
incident on October 10th of last year in Lancaster, 
Pennsylvania, where there was talk about a clearinghouse that 
could be set up by the National Association of Sheriffs. You 
were at that meeting, along with the Secretary of Education. 
Has anything been done on that, looking to identify this kind 
of aberrant, unusual behavior which might mark or give some 
insights into people who would be at risk? We talk often about 
at-risk youth, trying to give them mentors. Has anything been 
done on that report on the sheriffs' clearinghouse?
    Attorney General Gonzales. Senator, with respect to the 
specific conference, one of the things that we focused 
primarily on as the Department of Justice was to ensure the 
development of stronger relationships between State and local 
police and the schools, but--
    Senator Specter. Would you deal with my question before you 
go to some other subject?
    Attorney General Gonzales. I'm not aware that there has 
been any effort, Senator. That doesn't mean that there hasn't 
been with respect to this issue of--
    Senator Specter. Well, would you--
    Attorney General Gonzales [continuing]. Signs or marks, but 
I would be happy to look at it.
    Senator Specter. Would you check that out and get back to 
us?
    Attorney General Gonzales. Yes, sir.
    Senator Specter. There are a couple of other subjects I 
want to take up with you. The National Security Letters have 
been misused, flagrantly, by the FBI. We had a very rugged 
session with FBI Director Mueller where we found that in 
structuring the PATRIOT Act, we gave law enforcement additional 
powers, but we were very careful to put restraints on them. But 
those National Security Letters were misused. They were used 
under limited procedures for exigent--that is, emergency--
circumstances, misused, supposed to have documents to follow-
up.
    What have you done, Mr. Attorney General, to act to see to 
it that those problems are corrected?
    Attorney General Gonzales. Senator, I've spoken with the 
Director several times about this. I was very upset about this. 
I'm going to have--
    Senator Specter. Spoken to him? Upset about it?
    Attorney General Gonzales. Yes.
    Senator Specter. What did you do specifically?
    Attorney General Gonzales. I asked the National Security 
Division and our Privacy Officer to work with the FBI in trying 
to find out what happened here. And--
    Senator Specter. Wait a minute. Wait a minute. We know what 
happened. They misused the letters.
    Attorney General Gonzales. They did, so we're trying to--
    Senator Specter. The question is: What corrective action 
have you taken?
    Attorney General Gonzales. Senator, we are involved in the 
oversight and auditing of field offices, and moving forward, we 
are going to be doing field office sites, 15 a year, so that 
people--so we have a better idea of what is ongoing.
    I think one of the things that Mr. Mueller--
    Senator Specter. Attorney General Gonzales, I want to take 
up one more subject, and I have got very limited time. What I 
would like you to do on that subject is tell us what you as 
Attorney General have done. You have responsibility over the 
FBI, and we know what Director Mueller has done. And this 
Committee would be interested in knowing specifically what you 
have done in terms of your oversight to see to it that the FBI 
complies with the law.
    Attorney General Gonzales. I would be happy to, Senator.
    Senator Specter. Let me take one other subject up very 
briefly. You wrote to Senator Leahy and me on January 17th of 
this year concerning the Foreign Intelligence Surveillance 
Court and the Terrorist Surveillance Program, writing to us 
that ``authorizing the Government to target for collection 
international communications in or out of the United States has 
now been given to the FISA Court, which would have to be 
preceded, where there is probable cause''--that is the regular 
proceeding. So that the President has discontinued the 
Terrorist Surveillance Program. Is that correct? That program 
has been discontinued?
    Attorney General Gonzales. That is correct.
    Senator Specter. In deference to sending all these cases 
before the Court?
    Attorney General Gonzales. That is correct, sir.
    Senator Specter. Okay. We do not have time to go into this 
in any detail, and it may be something that you cannot talk 
about in an open session. But I would like to know the 
specifics and details on what is done to provide probable cause 
to the FISA Court in light of the tremendous number of 
interceptions involved here. Interceptions from the U.S. going 
out are supposedly in a smaller number, but I would like the 
information on that. And, more specifically, on the quality of 
the factors required to establish probable cause on the 
communications coming from outside the United States in. And 
the final question on that subject for the moment is: In the 
light of the change in the approach, what is the need for the 
legislation which you have submitted last Friday, April 13th? 
If you would provide those responses in writing, we would 
appreciate it.
    Attorney General Gonzales. Yes, sir.
    Senator Specter. Thank you, Mr. Chairman.
    Chairman Leahy. Thank you, Senator Specter.
    Senator Feinstein.
    Senator Feinstein. Thank you very much, Mr. Chairman.
    I want to take you back once again, Mr. Attorney General. I 
may be very slow--
    Attorney General Gonzales. No, you are not, Senator.
    Senator Feinstein [continuing]. But I do not understand how 
this list was compiled. The list was essentially 10 percent of 
the entire Attorney General's staff. Kyle Sampson, your former 
Chief of Staff--I am going to talk about the senior so-called 
leadership of the Department--and the person you said you 
delegated this task to, testified that he did not put people on 
the list. He said, ``It wasn't like that. It wasn't that I 
wanted names on the list. I was the aggregator.'' That is page 
184 of his transcript.
    Mike Battle, Director of the Executive Office of the United 
States Attorneys, said, ``I had no input. Nobody asked me for 
my input.'' That is the interview page 82.
    Bill Mercer, Acting Associate Attorney General and No. 3 at 
DOJ, said, ``I didn't understand there was a list. I didn't 
keep a list. It was just that any time I had a particular 
concern, I made that known to different people.''
    And you testified this morning that you did not know the 
reasons U.S. Attorneys were put on the list until after you 
decided to fire them.
    I am very interested and I would like to send down to you 
the plan--it is three pages--that was distributed at the 
meeting on November 27th and ask you to take a look at it.
    Attorney General Gonzales. Thank you, Senator. Let me 
respond to a couple of things that you said.
    First of all, I haven't read the transcript for Mr. Battle 
and Mr. Mercer--
    Senator Feinstein. Well, it is pretty accurate, and I gave 
you the pages, so your staff can check it out.
    Attorney General Gonzales. Thank you.
    I don't know that I testified that I didn't know the 
reasons when I made the decision. I recall knowing reasons as 
to five, but I don't recall remembering the reasons as to two.
    Senator Feinstein. Okay. Let's go on. If you could look at 
this--and I think this is one of the--this is a small thing, 
but apparently this three-page plan was distributed at that 
meeting. Do you recall seeing it?
    Attorney General Gonzales. Senator, I don't recall the 
meeting, and I don't recall seeing this document. But I have no 
reason to doubt that this was a document that--
    Senator Feinstein. Okay. Well, let me give you one point 
of--and this is a just a minor point of irritation. Senator 
calls. The Republican Senators get calls. For the Democratic 
Senators where U.S. Attorneys are being fired, the political 
lead gets the call, whatever that is. I think, you know, it's 
Senators that confirm. It's Senators that should have the 
knowledge, not necessarily the political lead.
    And if you would go to step 3 on page 2, it is entitled, 
``Prepare to withstand political upheaval.'' And it goes on to 
say, ``U.S. Attorneys desiring to save their jobs likely will 
make efforts to preserve themselves in office.''
    And then, ``This is what people should say.''
    On the question of who decided, the talking point is, ``The 
administration made the determination to seek the resignations, 
not any specific person at the White House or the Department of 
Justice.'' And to this time, we do not know who actually 
selected the people to be put on the list. I would like to know 
who selected the individuals that were on that list.
    Attorney General Gonzales. Senator--
    Senator Feinstein. Somebody had to. A human being had to.
    Attorney General Gonzales. Senator, I'm not going to 
characterize Mr. Sampson's testimony, but let me tell you what 
I understood and what I expected, was that Mr. Sampson would 
speak with the senior leadership in the Department, people that 
knew about the performance of United States Attorneys, and he 
would come to me with a recommendation, a consensus 
recommendation, including his views.
    That is what I understood. That's what I understood was 
coming to me, because Mr. Sampson--
    Senator Feinstein. Well, Mr. Sampson testified he didn't. 
He was just the aggregator.
    Attorney General Gonzales. No, and I'm not saying that--
that is--if that's what he testified, I'm sure that's his 
perception of his role. What I'm testifying today is what I 
viewed Mr. Sampson's role was, was to get information but to 
present to me a recommendation that also included his own, and 
the reason that was important--not as important as others, like 
the Deputy Attorney General, but Mr. Sampson had been involved 
in Presidential personnel, in filling senior leadership 
positions at the Department of Justice, the top legal positions 
at other agencies. And so he had experience in making personnel 
decisions.
    Senator Feinstein. All right. I want to ask other 
questions. But perhaps you can understand that this has become 
a serious matter, and seven out of the eight were involved in 
public corruption prosecutions, and yet nobody knows who 
selected them for this unusual thing to this very moment.
    Now, I would like to go on with something else. From 
documents and interviews, we know the following. The White 
House was involved in the removal of Bud Cummins. Karl Rove 
called you and asked about three districts: Milwaukee, 
Philadelphia, and Albuquerque.
    Attorney General Gonzales. Senator, I don't recall whether 
he called or whether it was a visit. It may have been a call.
    Senator Feinstein. Omay. You got a call from the President 
about New Mexico in the fall of 2006.
    Attorney General Gonzales. Senator, I think that was a 
conversation. I don't think it was a phone calls.
    Senator Feinstein. Conversation, thank you. And Harriet 
Miers discussed whether to remove Debra Yang from Los Angeles. 
Now, she resigned, so she was not part of this.
    But given all these inquiries that we know about, how could 
you say just 3 weeks ago that the White House did not play a 
role in adding or taking off names?
    Attorney General Gonzales. Well, Senator, the fact that 
there may have been a conversation with the President 
indicating a concern about election fraud and a particular 
issue, in my mind I never would have equated that with the 
process, this review process that was ongoing with respect to--
that Mr. Sampson was coordinating.
    Senator Feinstein. Okay. Now let's continue this. This is 
why this is so strange. When Mr. McNulty came and briefed us in 
the Judiciary Room on the second floor, he mentioned the 
reasons were performance. And then we began to ask to see the 
EARS reports that Senator Kennedy referred to this morning, and 
I believe we have all taken a look at them, and we see stellar 
professional performance reports. We pick up USA Today, and we 
see a ranking that they did, placed seven of them in the top 
ten U.S. Attorneys in the United States. And I have a very hard 
time with your telling me to this day you don't know who 
suggested that each of these seven people on that December 7th 
list, nobody knows how they got there.
    Attorney General Gonzales. Well, Senator, first of all, I 
don't know--the USA ranking, I don't know where that comes from 
and what it's based on. But, Senator, you, the Committee, I'm 
assuming, I'm presuming, has interviewed the people involved in 
this process and can ask that question. I would like to know. I 
would like to ask that question. But out of respect for this 
investigation, I have not done so. The only thing that I can do 
today is to give you the information that I know, the truth as 
I recall it, and that is what I am trying to do here today, is 
to tell you that I received the recommendation--what I presumed 
was that--most importantly, what I cared about is did this 
reflect the recommendation of the Deputy Attorney General. That 
would be the most important thing.
    Senator Feinstein. But if I were you, I would want to know 
who selected this individual and what was their thinking. Why 
did they put that individual on this list? Everybody knew from 
the plan that it was going to be heavy going, that there were 
going to be problems. It would just seem to me that you would 
want to know these things.
    Attorney General Gonzales. Senator, no question that--
    Senator Feinstein. Now, when you talk about sort of an 
amorphous senior leadership, people think of gray-haired, very 
wise men making these decisions. In fact, they are very young 
and sometimes very ideological people.
    Attorney General Gonzales. Senator, what--
    Senator Feinstein. And wouldn't you want to know who is 
making the decision? Because when Mike Battle testified to the 
staff of what the response was when he called these U.S. 
Attorneys, it was a shock out of the blue. It was a shot to the 
gut. They had thought they did very well. They had not been 
told there were problems. And they were called and they were 
told, ``You must leave.''
    Attorney General Gonzales. Senator, I've already testified 
that, clearly, as I look back on it now, the process would have 
been much more rigorous, and there would have been some 
discussion face to face with either myself or the Deputy 
Attorney General.
    You mentioned something that reminds me that the discussion 
back and forth between you--involving you and Senator Schumer 
about Carol Lam. I want to make sure that I am clear about 
this. That is, I believe based on my review of the documents 
that Ms. Lam, knew that there were concerns or certainly there 
was an interest in her performance with respect to immigration 
prosecutions. I don't know whether or not Ms. Lam knew that the 
Department of Justice had those specific concerns or that if 
things didn't change that she might lose her job. I wanted to 
make sure that you understand that.
    Senator Feinstein. I understand this, but let me tell you, 
we all get concerns all the time. But if I were employed by 
Justice, I would be curious as to what my bosses think, not the 
flack that I may or may not be getting from other places, 
because the flack, to some extent, comes with the territory.
    Attorney General Gonzales. Senator, I expected that my 
concerns about her immigration prosecution numbers and her gun 
prosecution numbers would be communicated to Ms. Lam. That is 
what I understood.
    Senator Feinstein. But 2 months before she was fired, in a 
letter to me, Will Moschella said everything was fine with her 
immigration numbers.
    Attorney General Gonzales. Senator, I believe--
    Senator Feinstein. She has told us she was never contacted 
by the Department about immigration.
    Attorney General Gonzales. Senator, I--
    Senator Feinstein. My time is up.
    Attorney General Gonzales. Thank you.
    Chairman Leahy. Did you want to respond to that question?
    Attorney General Gonzales. That's fine, sir.
    Chairman Leahy. I would certainly allow you to if you want 
to.
    Attorney General Gonzales. Thank you, sir.
    Chairman Leahy. Senator Hatch.
    Senator Hatch. Well, thank you, Mr. Chairman. I think we 
all will agree, I think you have agreed, that this was poorly 
handled.
    Attorney General Gonzales. Yes.
    Senator Hatch. Contrast that with the years of service you 
have given, not only at the White House but at the Justice 
Department, and all of the really good things that you have 
been able to do. I mean, how many times do you have to be 
flagellated over that? Let me give you another illustration.
    With regard to public prosecutions, do the named U.S. 
Attorneys always try those cases?
    Attorney General Gonzales. No, sir.
    Senator Hatch. Very seldom.
    Attorney General Gonzales. In fact, in most cases they are 
tried by the career professionals, experienced--
    Senator Hatch. Professional staff, right?
    Attorney General Gonzales. That is correct, sir.
    Senator Hatch. They are tried by professional staff. So if 
a U.S. Attorney leaves, that case continues on, right?
    Attorney General Gonzales. The institution is built to 
withstand change in the leadership positions. That's the way it 
should be. It's always--
    Senator Hatch. So am I right, if the U.S. Attorney leaves, 
that case continues and it is well handled?
    Attorney General Gonzales. That is true.
    Senator Hatch. And that is without interference by the 
Department of Justice. Is that correct?
    Attorney General Gonzales. We have every expectation that 
the case will continue and move forward.
    Senator Hatch. And there is no indication--well, let me say 
this as well. I think it is important to say this, that U.S. 
Attorneys serve, as everybody here has admitted, at the 
pleasure of the President. They don't serve at the pleasure of 
the U.S. Senate. They are confirmed by us, but they serve at 
the pleasure of the Senate. And you serve at the pleasure of 
the President, too.
    Attorney General Gonzales. Yes, sir.
    Senator Hatch. But you are confirmed by us. We have a role, 
but that is not--but our role is not that they serve at our 
pleasure. As I have said, I believe there are two legitimate 
issues in the U.S. Attorney controversy. First, were any of 
them removed for an improper reason? Second, did any 
administration officials knowingly mislead or lie to Congress 
or the public?
    After 3 months of hearings, all kinds of interviews, and 
thousands upon thousands of pages of documents, the evidence 
shows that the answer to both of those questions is a 
resounding no.
    Now, continuing past the point of answering those 
questions, it appears motivated more by partisan profit-taking 
than proper oversight. And because some have not been able to--
they have not been able to prove either improper interference 
with an ongoing case or investigation or a knowing misleading 
of the Congress about how these U.S. Attorneys were removed, 
some now want to shift gears and ask why some of the U.S. 
Attorneys were not removed, as you saw this morning. Well, 
crossing this line is wrong and calls into question not 
decisions made about a few U.S. Attorneys in the past, but 
decisions made by many U.S. Attorneys in the present and 
future.
    Now, as you said in your statement, you have recently met 
with U.S. Attorneys all over the country, about 70 of them, if 
I recall correctly.
    Attorney General Gonzales. Over 70, yes, sir.
    Senator Hatch. Over 70. How would this type of an approach 
impact them, you know, why they are not removed and their 
decisions, their cases, their work, to go down this road and 
raise suspicion, innuendo, and doubt about their service? That 
bothers me just a wee bit, too.
    Attorney General Gonzales. Senator, the perception is 
something that I am very, very concerned about and something 
that I'm committed to try to address.
    Senator Hatch. Well, in your op-ed column published last 
Sunday in the Washington Post and in your written statement 
today, you describe how you have asked the Office of 
Professional Responsibility separately to investigate this U.S. 
Attorney controversy. Now, many Americans might not be familiar 
with the Office of Professional Responsibility, OPR, in the 
Justice Department. If you would, please describe that office 
in general, and then focus on what you have asked the office to 
investigate and what you believe its work will contribute 
regarding this controversy.
    Attorney General Gonzales. Senator, it is an office headed 
by a career professional. The role of the office is to ensure 
that the Department of Justice lawyers meet their professional 
obligations as lawyers, have met their ethical obligations in 
providing legal advice as lawyers. And that is the role of the 
office.
    I thought it was important because of allegations of 
wrongdoing by lawyers at the Department for the Office of 
Professional Responsibility to look into this matter, because I 
wanted to reassure--
    Senator Hatch. That is no small request, right?
    Attorney General Gonzales. Well, Senator, I think it's a 
serious issue when you're asking the Office of Professional 
Responsibility to look at the conduct of a lawyer.
    Senator Hatch. Once you ask them to do that, it is in their 
hands, not yours, right?
    Attorney General Gonzales. It is certainly within their 
hands, and let me just add that I have recused myself--in order 
to avoid appearances of impropriety, I've recused myself from 
oversight of that investigation or the investigation of the 
Office of Inspector General in relation to this matter.
    Senator Hatch. Well, I think we can all agree this was 
poorly handled.
    Attorney General Gonzales. Yes, sir.
    Senator Hatch. But you delegated this authority to others 
to handle who you had faith in, and trust. Is that a fair 
comment?
    Attorney General Gonzales. Yes, sir.
    Senator Hatch. But you have taken responsibility for--
    Attorney General Gonzales. I accept full responsibility for 
this, Senator. I'm head of the Department. I made the decision 
to delegate this process. I assumed the process would be 
better, and it wasn't, and I accept responsibility for this.
    At the end of the day, I know that I did not do anything 
improper, and based on what I know and have seen, I don't think 
anyone made any recommendations to me based on improper 
motives.
    Senator Hatch. That is one reason why this morning I 
brought out how many--more than 100,000 people you supervise. 
You are constantly at Cabinet meetings or other meetings at the 
White House. Why, you are even called up here on a regular 
basis, although it has been infrequent, but nevertheless you 
have to go not just to the Senate, but the House. You have 
constant phone calls from us up here that you answer.
    Attorney General Gonzales. Senator, there are a lot of 
responsibilities as Attorney General, but my job is also to be 
responsible for what happens at the Department, and I accept 
responsibility for what happened.
    Senator Hatch. My point is that you are accepting 
responsibility, but you have a lot of other responsibilities 
that you have been carrying out effectively and well--
    Attorney General Gonzales. I believe so.
    Senator Hatch.--that I think cannot just be tossed aside 
like you are not doing the job down there, which is kind of the 
implication that comes out of this every once in a while. Let's 
all admit this was poorly handled. It could have been better 
handled. If you had more hands-on on this, maybe we would not 
be in this position today. On the other hand, with 100,000-plus 
employees, it is easy to see why something sometimes slips by, 
and this one certainly did.
    If there was any evidence that you were interfering with an 
ongoing investigation or case or that you knowingly misled this 
Congress, that is another matter. But there is not, and I just 
want to point that out and say, you know, you have taken a lot 
of lumps here, but you have also handled yourself well, too, 
and I just wanted to make sure that there is a little more 
even-handedness about this.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    Let me make sure I fully understand one of your answers. 
Were you suggesting that OPR, the Office of Professional 
Responsibility, operates outside political interference? Was 
that what you were saying?
    Attorney General Gonzales. Senator, their job is to provide 
an evaluation about the professional performance of the 
attorneys within the Department of Justice.
    Chairman Leahy. Are they ever subjected to political--have 
you ever been aware of them being subjected to political 
influence?
    Attorney General Gonzales. Senator, I'm not sure I can 
answer that. I think as a general matter, I'm not aware of 
that. I'm not sure I understand what you mean by ``political 
influence.''
    Chairman Leahy. Well, I am thinking about the times that 
OPR was asked to look into the question of warrantless 
wiretapping by NSA, something that eventually turned out that 
they should not have done, and they were told and given a 
political order, ``Look no further.''
    Attorney General Gonzales. Senator, I don't know if I would 
characterize the political--I recommended that the Office of 
Professional Responsibility--I recommended to the President 
that the Office of Professional Responsibility be read into the 
program so they could conduct an evaluation of the performance 
of lawyers within the Department of Justice. And the decision 
was made by the President that that would not be the right 
thing to do, and that's what happened in that particular case.
    Chairman Leahy. So I just did not want to leave the 
impression that they operate unfettered by political influence, 
in that case a very, very serious matter involving this Nation, 
involving our laws, involving the FISA Court, they were 
interfered with.
    Senator Cardin.
    Attorney General Gonzales. Senator, could I just make one 
comment?
    Chairman Leahy. Sure. Of course.
    Attorney General Gonzales. I think it is important for the 
American people to understand that the Office of Inspector 
General has been read into the program, and they are certainly 
looking into the role of the FBI in connection with this 
program.
    Senator Cardin. Thank you.
    Mr. Attorney General, I want to make sure the record is 
clear about your knowledge of what Monica Goodling might be 
able to contribute, her input or what she knows on the process 
with the dismissal of the U.S. Attorneys. I just want to give 
you that opportunity to make sure our record is complete about 
your knowledge in that regard.
    Attorney General Gonzales. Senator, I am not sure I have 
anything to add about Ms. Goodling's role. I don't have any 
specific recollection about what else she might have done.
    Certainly after the fact, after the decision, I'm aware 
that she was involved with respect to preparation of testimony 
and things of that nature. But in connection of her involvement 
in the role of this--well, let me just say this: There is 
within the documents, as I recall seeing them after the fact, 
obviously she's involved in communicating with the White House 
with respect to certain individuals, and she is involved in 
other kinds of communications. I don't want to minimize her 
role, but she would not be one of the persons I was relying 
primarily on with respect to a recommendation to me about this 
decision.
    I relied primarily, what--I would be relying primarily on 
the recommendation of the Deputy Attorney General, who every 
one of these U.S. Attorneys reported to, and it was a former 
colleague. I would be interested in--it was my understanding, 
it was really my hope that Mr. Sampson would consult also with 
the Acting Associate Attorney General, also a sitting United 
States Attorney.
    Senator Cardin. I just want to make sure I got Monica 
Goodling, your recollection of whether there was anything more 
that should be in the record from your testimony in regards to 
her?
    Attorney General Gonzales. Sir, I don't have any 
independent knowledge beyond what's reflected in the documents.
    Senator Cardin. I want to go to the issue of voter 
intimidation, voter fraud. In a couple of the districts voter 
fraud was an issue involved in the dismissal of the U.S. 
Attorneys. It has come up several times. You and I have talked 
about voter intimidation. I just tell you in my State of 
Maryland, in one precinct in Prince George's County, Maryland, 
there are more eligible voters who came out to vote and did not 
vote because the lines were so long that they just did not have 
the time to wait a couple hours to vote, than all the people in 
Maryland who may have cast a vote who were not eligible to 
vote. I mention that because there seems to be growing 
activities of voter intimidation to try and affect minority 
voters around the country. We saw that in half a dozen states 
by specific examples in the last election.
    You have indicated that the lack of energy on voter fraud 
was involved in evaluation of a couple U.S. Attorneys. I did 
not see any evaluations at all about U.S. Attorneys being 
aggressive in dealing with voter intimidation. I am just 
wondering where the priority of the office will be.
    Attorney General Gonzales. Senator, I think you've raised a 
very, very good point. First of all, with respect to voter 
fraud generally, as someone who grew up in a poor neighborhood, 
the one day we were equal to everyone else was on election day, 
and so I really appreciate how important the right to vote is. 
Voter fraud to me means you're stealing somebody's vote, and so 
I take this very, very seriously.
    Having said that, in enforcing or prosecuting voter fraud 
we need to be careful that we don't discourage people or 
intimidate people from participating on election day, and I 
think it's important to send a strong signal that if you're 
going to do an investigation, be sensitive to the fact that you 
don't want to create, have a chilling effect, or create some 
kind of cloud and discourage people from participating. So that 
to me is very, very important.
    We have guidance about that, doing those kind of 
investigations near an election because it's important to 
enforce the law, it's important to pursue voter fraud, but 
let's be sensitive about the effect it has on particularly 
minority participation.
    Senator Cardin. I agree with that. I just hope that you 
will take a look at the Obama bill that we have pending before 
this Committee.
    All of the information I have seen, I agree with you on 
voter fraud. Voter fraud should be prosecuted. If someone tries 
to vote who should not be voting, absolutely they should be 
prosecuted. But the amount of voter fraud, from what has been 
seen in those areas where those studies have been done, is 
minuscule compared to those who are eligible to vote that have 
been, one reason or another, unable to cast their vote. There 
has been an increasing amount of activity, whether it be voting 
machines that do not work in minority areas, as happened in 
Maryland, or whether it is literature that is handed out that 
is blatantly wrong, intimidating voters that they may be 
arrested if they try to vote in minority communities, or giving 
the wrong election day or giving wrong information about 
political endorsements that are racially motivated. That, to 
me, has a very serious effect on minority participation in 
voting, and needs to be a priority.
    I am somewhat concerned that as you are looking at the 
aggressiveness of the U.S. Attorney's Office to carry out a 
policy on making sure that everyone's vote is properly counted, 
that we have balance here in making sure that we give the 
Attorney General the tools that you need to counter voter 
intimidation, and that we work together to really make sure 
that every vote can count in this country, and we have not 
reached that yet, so we need to have that balance.
    Senator Cardin. Senator, you and I have spoken about this. 
I believe that you met with the head of the Civil Rights 
Division. This is something that's important to me personally, 
and so it's something I would be anxious to work with you 
about. I think there needs to be a balance.
    Thank you. Mr. Chairman, I yield back the balance of my 
time.
    Chairman Leahy. Thank you. We told the Attorney General 
before Senator Cardin asked questions we were going to take a 
10-minute break, and that is my mistake that we did not. We 
will stand in recess for 10 minutes.
    [Recess 4:06 p.m. to 4:20 p.m.]
    Chairman Leahy. I would note that we have a statement from 
Senator Biden for the record, which I will put in the record.
    Senator Whitehouse has asked for a question. I think 
Senator Schumer may have something further. Unless Senator 
Specter has something further--I will not. The Attorney General 
has had a long day here, and I would hope that we will soon 
wrap this up. I mention this also for the press and others so 
they will know where we are. And I have discussed it already 
with the Attorney General.
    Senator Whitehouse.
    Senator Whitehouse. Thank you, Mr. Chairman. Mr. Chairman, 
with your permission may I give two documents to the witness?
    Chairman Leahy. Yes, and we will not start the clock until 
he has had a chance to see them.
    Senator Whitehouse. Great. Thank you. We will circulate 
them to anybody who is here.
    Back to structure again, Attorney General Gonzales, I 
assume that we can agree with the proposition that in the 
enforcement of the laws, the Department of Justice should be 
independent.
    Attorney General Gonzales. Yes, sir.
    Senator Whitehouse. Can we also agree that one of the 
institutions of Government that the Department of Justice needs 
to be independent from in the enforcement of the laws is the 
White House?
    Attorney General Gonzales. No question about it, Senator. 
If you are talking about prosecuting someone in the White 
House, yes, we should be independent from them when making 
those kind of decisions.
    Senator Whitehouse. And indeed, over a long history, there 
have been concerns about influence from the White House to the 
Department of Justice and people, indeed, members of this 
Committee, have expressed concern about the White House-Justice 
connection over many years. Is that not also correct?
    Attorney General Gonzales. I think that is a legitimate 
concern. I think that is very important. I think it's one of 
the reasons, for example, that Attorney General Ashcroft 
recused himself in connection with the Plame investigation.
    Senator Whitehouse. The documents that I have given you are 
two letters. One is from Attorney General Reno to Lloyd Cutler, 
the Special Counsel to the President, dated September 29, 1994. 
It lays out the policy for contacts between the White House and 
the Department of Justice in the Clinton administration. And to 
give credit where credit is due, it is my understanding that 
the distinguished Senator Hatch, who was then the Chairman of 
this Committee, had substantial interest in this and viewed it 
as a significant area of oversight, and I want to commend him 
for that.
    What it does--the language is behind me--it says that with 
regard to initial contacts involving criminal or civil matters, 
they should only involve the White House Counsel or Deputy 
Counsel or the President or Vice President and the Attorney 
General or Deputy or Associate Attorney General, period.
    The more recent memorandum, the other document that you 
have in front of you, is from April 15, 2002. It represents the 
policy of the Bush administration regarding White House-
Department of Justice contacts, and there in the highlighted 
part on the front, it says that these contacts regarding 
pending criminal investigations and criminal cases should take 
place only between the Office of the Deputy Attorney General 
and the Office of the Counsel to the President.
    And then if you flip back to the very last page, there is 
sort of an exemption paragraph that exempts further the 
President, the Vice President, the Counsel to the President, 
national security and homeland security officials, staff 
members of the Office of the Attorney General if so designated, 
and staff of the Office of the President, the Office of the 
Vice President, the Office of the Counsel to the President, the 
National Security Council, and the Office of Homeland Security.
    So I asked my staff to take a look at what the difference 
was between those two, in effect, and if you could, this is, in 
effect, during the previous administration. This was the 
Clinton protocol, and there were four people--the President, 
the Vice President, the Deputy White House Counsel, and the 
White House Counsel--who could participate in these kind of 
discussions about cases and matters and initiate them with the 
Department of Justice. And on the Department of Justice side, 
the only people who were qualified to engage in those 
discussions were the Attorney General, the Deputy Attorney 
General, and Associate Attorney General. So they had narrowed 
very carefully the field of people who could have these 
discussions, which I think is a very important safeguard, to 
narrow that portal, to police it. It is almost like there is an 
airlock there for those communications.
    Now, here is the result that I asked my staff to put 
together if you count all the people who are eligible under the 
new program. That to me--your staff can check on exactly how 
accurately we have done it, but there are, I want to say--what 
were the numbers? It is 417 folks in the White House who were 
eligible to have these contacts and about 30-some in the 
Department of Justice.
    Again, from a structural point of view, my question to you 
is: When over years this issue of White House to Department of 
Justice contacts has become so significant, when, you know, 
even on the Republican side of the Judiciary Committee there is 
intense concern about this over the years, and it has been 
narrowed down to a fine portal like this--you were the White 
House Counsel at the time--what possible interest in the 
administration of justice is there to kick the portal so wide 
open that this many people now can engage directly about 
criminal cases and matters as compared to before?
    Attorney General Gonzales. Senator, I think you have raised 
a good point here, one that I was concerned about at the 
Counsel's Office, and I remain concerned as Attorney General, 
in terms of making sure that communications between the White 
House and the Department of Justice remain in the appropriate 
channels. I do recall being concerned about that as White House 
Counsel.
    Senator Whitehouse. Quite a pronounced change, isn't it?
    Attorney General Gonzales. Well, it is a pronounced change. 
However, it is my understanding of the policy--and, again, this 
is DOJ policy that occurred April 15, 2002--was that 
communications with respect to individuals at the National 
Security Council would not be with respect to particular cases, 
but with respect--
    Senator Whitehouse. This is national security aside. This 
is not national security. This is criminal cases and civil 
cases, initial contacts between the White House and the 
Department of Justice.
    Attorney General Gonzales. Senator, let me say this: I'm 
not aware that there are initial contacts between the White 
House and the Department of Justice as an initial matter with 
respect to specific criminal cases, or if there are--let me put 
it this way. I don't think there should be. I think it is very, 
very important--I agree with you. It is important to try to 
limit the communications about specific criminal cases between 
the Counsel's Office and the Department of Justice.
    Senator Whitehouse. But when I see the rules opened this 
much, it makes me wonder to what extent this safeguard is 
considered significant in this administration. And then we hear 
stories like we have heard of United States Attorney McKay 
reporting that when he went to the White House to be 
interviewed, he was told by White House Counsel Harriet Miers 
that he had--and this is the word he used, in quotes--
``mishandled'' the voter fraud investigation in the recent 
election.
    Now, I have met Harriet Miers. She strikes me as a very 
careful, intelligent, thoughtful lawyer. She would not throw 
around a word like ``mishandled,'' I don't think, which implies 
a very significant degree of evaluation. And it seems to me 
that one of two things is true about that conversation. Either 
she had no idea what she was talking about and she misused that 
term, or she had some idea of what the evidence was in the 
voter fraud case in McKay's district that did not go forward. 
And what I would like to know is: Do you know which one it was? 
And if it was the latter, how on Earth did she get evidence 
regarding a Department of Justice case sufficient to form the 
professional opinion that the United States Attorney had 
mishandled that case?
    Attorney General Gonzales. Senator, I am not familiar with 
the conversation that occurred between Mr. McKay and Ms. Miers. 
Like you, I am--
    Senator Whitehouse. Did you see the story on it, though?
    Attorney General Gonzales. I'm aware of the reports, but 
sometimes--
    Senator Whitehouse. Didn't that send up a big red flag?
    Attorney General Gonzales. Sometimes stories are wrong, and 
the fact that she also may have been aware of the reports, 
knowing that this was an issue in this district, that she may 
have inquired about, well, what happened here, is there 
something to worry about, without having any specific knowledge 
about the underlying facts of the case. But I don't know. I am 
just--
    Senator Whitehouse. Has there been any effort to run down 
what happened that caused a White House Counsel to reach an 
evaluative opinion about an ongoing prosecution, or even in a 
closed prosecution, I gather, just by way of safeguarding how 
information is traveling back and forth across this now wide 
open screen?
    Attorney General Gonzales. Well, I think the safeguards you 
are referring to I think are very, very important. I'm not sure 
that there would have been a prosecution relating to--the 
absence of a prosecution--well, to answer your question, I'm 
not aware of any going back and looking at what happened here. 
Again, I don't know if what the reports are even stating are 
even accurate. But I, like you, am concerned about the level of 
contacts and ensuring that the communications between the White 
House and the Department of Justice occur at the appropriate--
within the appropriate channels.
    Senator Whitehouse. Mr. Chairman, I know I am over my time, 
but if I could ask a couple quick questions about OPR and--
    Chairman Leahy. I think this is significant, and I am going 
to not take the other questions I was going to ask. I find the 
chart astounding. It goes beyond anything I have seen in 32 
years here. Please go ahead and finish your questions.
    Senator Whitehouse. OPR and OIG are both investigating this 
matter.
    Attorney General Gonzales. Yes, sir.
    Senator Whitehouse. OPR reports are ordinarily not public. 
OIG reports ordinarily are. Can we be assured that the result 
of the OPR/OIG investigation will, in fact, be made public?
    Attorney General Gonzales. Senator, I think, as I indicated 
in response to an earlier question, that I am recused from the 
oversight of these two investigations, and so as a technical 
matter, I'm not sure that's going to be a decision for me to 
make, quite frankly. And Mr. McNulty, the Deputy Attorney 
General, has likewise recused himself, and so Paul--
    Senator Whitehouse. So who do we talk to?
    Attorney General Gonzales. It is Paul Clement, the 
Solicitor General.
    Senator Whitehouse. All right. When you look at the 
record--you have asked us several times to look at the record 
of the Department, the record of public corruption 
prosecutions. Would you object to us asking the Office of 
Inspector General to look at the record of public corruption 
prosecutions and give us a confidential report, stripped of any 
sort of telltale information, so that we can actually test the 
proposition that you have invited us to look at?
    Attorney General Gonzales. Senator, I don't know whether or 
not that is really--as a general matter as to whether or not 
lawyers have discharged their professional responsibilities, it 
is not a matter within the purview of the Office of Inspector 
General. But I believe it falls within the purview of the 
Office of Professional Responsibility, and I would be happy to 
go back again--I am not even sure I'm recused from making that 
decision. But I understand your request, and we will see--
    Senator Whitehouse. I think it is actually properly OIG. 
And my last point is that it was originally your choice to 
refer this matter to the Office of Professional Responsibility, 
correct?
    Attorney General Gonzales. Yes, sir.
    Senator Whitehouse. Now, a suspicious mind would say, well, 
wait a minute, OPR never makes a report, and more than that, 
OPR is limited to evaluating the conduct of attorneys within 
the Department of Justice when they are acting as attorneys. It 
does not evaluate their administrative actions. It does not 
evaluate whether they have subjected themselves to political 
influence. And my question to you is: Who in this entire 
process that led to the termination of the U.S. Attorneys was 
at any point in this acting as a lawyer and not 
administratively?
    Attorney General Gonzales. Well, you raise a good question, 
and I want to be careful about what I say here because my 
recollection may be a little fuzzy. But I believe that in 
talking with our Acting Chief of Staff, Chuck Rosenberg, I 
spoke with him about the possibility of doing some kind of 
joint investigation, and so I think the Office of Inspector 
General is going to be looking at many of the issues that you 
are concerned about.
    I am told that the Office of Inspector General had on their 
own decided that they were going to do an investigation, and, 
therefore, I really can't claim and shouldn't claim credit.
    Senator Whitehouse. A good thing.
    Attorney General Gonzales. Which is fine, but I guess the 
point I'm making is I believe that these issues in terms of 
jurisdiction and who is going to look at what has been resolved 
between those two offices. And my understanding is they are 
going to pretty well cover the waterfront with respect to the 
decisions about these eight U.S. Attorneys, whether or not did 
anyone intentionally try to mislead Congress. And so I think 
these issues are being looked at by both these offices.
    Senator Whitehouse. And I guess my final question to you 
then is: In choosing OPR as the place that you wish to refer 
this investigation, did you take into account that OPR does not 
ordinarily make their findings public and that they are 
ordinarily limited to the conduct of lawyers in their conduct 
as lawyers, the things that might subject them to bar 
disciplinary activity and there is really no relation between 
anybody's conduct here that is being questioned and their 
conduct as lawyers? Typical misconduct--this is your thing--
Brady violations, Giglio violations, Federal Rule of Criminal 
Procedure 16 violations, improper conduct before a grand jury, 
improper coercion or intimidation of witnesses, improper use of 
peremptory strikes, improper questioning of witnesses, 
introducing of evidence, misrepresentations to court, improper 
opening and closing arguments, failure to diligently represent 
the interests of the Government, failing to comply with court 
orders, scheduling orders, Hyde amendment fees violations. None 
of that has anything to do with what we are questioning today, 
why OPR?
    Attorney General Gonzales. Senator, I think that is a fair 
question, and I think that is the reason why I raised with our 
Acting Chief of Staff, is to have the Office of Inspector 
General also look at this. But, again, I can't claim and won't 
claim credit for asking OIG to look into this because my 
understanding is they were already thinking about doing that or 
they were already beginning to look at it.
    I don't recall in making the decision about OPR thinking 
about, well, this is going to be a private report to me, 
because, again, on March 8th, when I met with the Chairman and 
others, I volunteered we would turn over documents voluntarily. 
I volunteered that we would make DOJ officials voluntarily. And 
so my actions have been consistent with the principle that we 
want to get to the truth here. That is very important to me.
    Senator Whitehouse. Well, I have long overextended my 
questioning, and I appreciate very much the courtesy of the 
Chairman and the Ranking Member and the Senator from New York 
in allowing me to do so.
    Chairman Leahy. Thank you.
    I understand the Senator from New York needs a couple 
minutes.
    Senator Schumer. That is all I need, yes.
    Chairman Leahy. Go ahead.
    Senator Schumer. Thank you, Mr. Chairman.
    Mr. Attorney General, at the beginning of the hearing, we 
laid out the burden of proof for you to meet, to answer 
questions directly and fully, to show that you were truly in 
charge of the Justice Department, and most of all, to 
convincingly explain who, when, and why the eight U.S. 
Attorneys were fired. You have answered ``I don't know'' or ``I 
can't recall'' to close to a hundred questions. You are not 
familiar with much of the workings of your own Department. And 
we still don't have convincing explanations of the who, when, 
and why in regard to the firing of the majority of the eight 
U.S. Attorneys.
    Thus, you have not met any of these three tests. I don't 
see any point in another round of questions. And I urge you to 
re-examine your performance and, for the good of the Department 
and the good of the country, step down.
    Mr. Chairman, I yield. I yield my time.
    Chairman Leahy. Thank you.
    Attorney General Gonzales. Mr. Chairman, may I respond?
    Chairman Leahy. Of course you may.
    Attorney General Gonzales. Respectfully, Senator Schumer, I 
think all Cabinet officials should ask themselves every day 
what is best for the Department that you lead, and it is 
something that I ask myself every day. I agree with you that I 
have the burden of proof of providing to you the reasons why I 
made my decision.
    But the burden of proof as to whether or not something 
improper happened here, respectfully, Senator, I think lies 
upon those making the allegations. And I have done everything I 
can to help you meet your burden of proof in terms of coming up 
here and testifying and making other DOJ officials available 
and providing documentation.
    But I think in terms of whether or not something improper 
has happened here, respectfully, Senator, I think that burden 
lies upon you and others who are alleging that something 
improper happened here.
    Senator Schumer. Mr. Chairman? That would be true if this 
were a criminal trial, sir. Our standard for Attorney General 
isn't simply no criminal standard. It is a much higher standard 
than that. And when you answer so many questions ``I don't 
know,'' ``I can't recall,'' when major details of important 
issues are not at your fingertips or even in your knowledge, 
and most of all, no, sir, when you fire U.S. Attorneys, the 
burden is on you to give a full, complete, and convincing 
explanation as to why. And people on both sides of the aisle 
failed to get that.
    So, sir, in my view, no, no, no, when you fire people who 
have good evaluations, who have devoted themselves to this 
country, the burden of proof lays on the person who did the 
firing, who took responsibility for the firing.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    Senator Specter.
    Senator Specter. Mr. Attorney General, we begin with the 
recognition of the long, arduous route you have taken with 
great difficulty and accomplishment, as I said at the start, 
Harvard Law and the State Supreme Court in Texas and White 
House Counsel and Attorney General of the United States. And I 
think you have been as forthcoming as you could be in your 
testimony today. But the issue of credibility, I think your 
credibility has been significantly impaired because of the 
panorama of responses you have made, where you denied being 
involved in ``discussions,'' and then your three key assistants 
contradicted you on that, where you then shifted to not having 
been involved in deliberations, and I went over with you the 
long list. You did touch the issues as to U.S. Attorney Lam in 
San Diego and what would happen to U.S. Attorney Iglesias in 
New Mexico and what would happen to U.S. Attorney Cummins in 
Arkansas. And then your denial of knowing about memoranda, and 
you were at meetings where documents, memoranda, were 
distributed. So I think inevitably there is a loss of 
credibility just necessarily.
    You and I talked informally during the luncheon break, and 
you elaborated upon one of your answers where you said that 
when you were questioning U.S. Attorney Lam's record to stay, 
that it was different from what you had asked Chief of Staff 
Kyle--
    Attorney General Gonzales. Sampson.
    Senator Specter [continuing]. Sampson to investigate. And 
in my view, there is absolutely no difference. Those are the 
same thing. And that when you looked at Ms. Lam's performance, 
you were involved in the deliberation, the judgment as to what 
happened to her.
    Now, that was difficult for me to understand how you could 
try to make that distinction, but I know you are doing that in 
good faith. But the net result is, I think, necessarily a loss 
of credibility, and I say that to you candidly and in a 
friendly way.
    When you come to the issue of the request of all these U.S. 
Attorneys to resign, I agree with the conclusions that it 
doesn't do any good to ask any more questions because I think 
we have gone about as far as we can go with multiple rounds of 
questions today. And you have been a forceful witness, and you 
have had a lot of staying power. But we haven't gotten really 
answers, and I think it is going to take a detailed analysis.
    I urged you to put on the record the details as to all the 
U.S. Attorneys you asked to resign so that we could evaluate 
them, and you have not done that. You have not done that. And I 
still think it would be useful if you did that as to your 
personal views.
    But perhaps it will be the Inspector General or perhaps it 
will be the Office of Professional Responsibility, or maybe 
they are not the right ones to do it, where our investigation 
will go forward, and we have talked to a lot of people, 
questioned a lot of people under oath, and we will continue to 
do that to try to get the answer.
    When it comes to the question as to impact on the 
Department, Mr. Attorney General, it seems to me inevitable 
that there has been a morale problem which some of the 
questions have disclosed. There would be an implicit message, 
if not an explicit message, even an unintended message, that 
U.S. Attorneys ought to be on guard for their independence. I 
handled the prosecutor's job and know the importance of not 
being concerned about any collateral influence beyond the law 
and the facts. And I think that has to have had an impact on 
the Department.
    For you to have said it is an ``overblown personnel 
matter,'' I think that cannot be erased, and the clouds over a 
lot of these professionals cannot be erased. And the worry by 
those who have not been subjected to those clouds cannot be 
erased.
    Now, I am not going to call for your resignation. I am not 
going to make a recommendation on that. I think there are two 
people that have to decide that question. You have to decide it 
in the first instance, and if you decided to stay on, then it 
is up to the President to decide. He has the appointing power. 
And I have signified the concerns that I have and the impact 
that I think it has on the Department. But I think it is beyond 
the purview of Senators--I mean, Senators can do whatever they 
like, and I am not questioning anybody who wants to do it 
differently. But for myself, I want to leave it to you and the 
President.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    First off, I thank the Attorney General for being here. 
This has not been a day that I think he may have wanted. I also 
thank the Committee members, both Republicans and Democrats, 
who were here. I think most of the Senators took this very 
seriously and asked very serious questions.
    You know, I cannot help but think--years ago we talked 
about our backgrounds. When I was in law school at Georgetown, 
I was invited with a handful of young law students who were 
working here for the summer, here in Washington, to meet with 
the then-Attorney General. I thought it would be a courtesy 
call, in and out. The Attorney General spent well over an hour 
with us--actually, considerably longer than that. We talked 
about the Department of Justice and how important an arm it is 
of the Government and how it is truly the one really 
independent arm of the Government. It is the Attorney General 
of the United States, not the Attorney General of the 
President, which is interesting, especially because of this 
particular Attorney General. He talked about the men and women 
who worked there, most of whom he had no idea what their 
political affiliations were; he just knew how professional they 
were.
    I remember saying afterward to my wife--and I have thought 
about it since--how great it would be to work there or to be a 
prosecutor. I was blessed with the opportunity to become one 
for 8 years.
    But I thought both when I was a prosecutor--and I know 
Senator Specter felt the same way--that the independence was 
the most important thing, and the independence of our Nation's 
to Federal prosecutors, it is no small matter.
    When you appeared here, Mr. Attorney General, in January 
2005 for your confirmation hearing, you said, ``I feel a 
special obligation and an additional burden coming from the 
White House to reassure career people of the Department and to 
reassure the American people that I am not going to politicize 
the Department of Justice.''
    I am afraid that both from the testimony today and the 
evidence that we have uncovered during this investigation shows 
that politics have entered the Department of Justice to an 
unprecedented extent, and if left unchecked, it would become 
just a political arm of the White House. That is something I 
would oppose, whether it is a Democratic or Republican 
administration.
    The Attorney General is not White House Counsel. Every 
President is entitled to and should have a White House Counsel. 
But the Attorney General is the Attorney General of the United 
States. If you put partisan politics, you have many people who 
have been appointed in a political fashion who I do not believe 
are confident. You have poor management. Then you add to such 
things as the widespread abuses of National Security Letters, 
and we know it goes even beyond what we have heard. You have 
the invasion of Americans' privacy in an unprecedented fashion. 
Never in this country have we had such an invasion of 
Americans' privacy. We see the inaccuracies, gross 
inaccuracies, in the Department's FISA applications, Foreign 
Intelligence Surveillance Act applications.
    So I say this saying we are going to have to continue and 
will continue. I must admit that this is a day that does not 
make me happy at all. I can think of very few things I have 
presided over or been a part of--and I have been in the 
majority and the minority half a dozen times. I cannot think of 
any time that I have been more concerned--more concerned for 
the system of criminal justice in this country.
    So, with that, we stand adjourned.
    [Whereupon, at 4:50 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]
[GRAPHIC] [TIFF OMITTED] T8236.001

[GRAPHIC] [TIFF OMITTED] T8236.002

[GRAPHIC] [TIFF OMITTED] T8236.003

[GRAPHIC] [TIFF OMITTED] T8236.004

[GRAPHIC] [TIFF OMITTED] T8236.005

[GRAPHIC] [TIFF OMITTED] T8236.006

[GRAPHIC] [TIFF OMITTED] T8236.007

[GRAPHIC] [TIFF OMITTED] T8236.008

[GRAPHIC] [TIFF OMITTED] T8236.009

[GRAPHIC] [TIFF OMITTED] T8236.010

[GRAPHIC] [TIFF OMITTED] T8236.011

[GRAPHIC] [TIFF OMITTED] T8236.012

[GRAPHIC] [TIFF OMITTED] T8236.013

[GRAPHIC] [TIFF OMITTED] T8236.014

[GRAPHIC] [TIFF OMITTED] T8236.015

[GRAPHIC] [TIFF OMITTED] T8236.016

[GRAPHIC] [TIFF OMITTED] T8236.017

[GRAPHIC] [TIFF OMITTED] T8236.018

[GRAPHIC] [TIFF OMITTED] T8236.019

[GRAPHIC] [TIFF OMITTED] T8236.020

[GRAPHIC] [TIFF OMITTED] T8236.021

[GRAPHIC] [TIFF OMITTED] T8236.022

[GRAPHIC] [TIFF OMITTED] T8236.023

[GRAPHIC] [TIFF OMITTED] T8236.024

[GRAPHIC] [TIFF OMITTED] T8236.025

[GRAPHIC] [TIFF OMITTED] T8236.026

[GRAPHIC] [TIFF OMITTED] T8236.027

[GRAPHIC] [TIFF OMITTED] T8236.028

[GRAPHIC] [TIFF OMITTED] T8236.029

[GRAPHIC] [TIFF OMITTED] T8236.030

[GRAPHIC] [TIFF OMITTED] T8236.031

[GRAPHIC] [TIFF OMITTED] T8236.032

[GRAPHIC] [TIFF OMITTED] T8236.033

[GRAPHIC] [TIFF OMITTED] T8236.034

[GRAPHIC] [TIFF OMITTED] T8236.035

[GRAPHIC] [TIFF OMITTED] T8236.036

[GRAPHIC] [TIFF OMITTED] T8236.037

[GRAPHIC] [TIFF OMITTED] T8236.038

[GRAPHIC] [TIFF OMITTED] T8236.039

[GRAPHIC] [TIFF OMITTED] T8236.040

[GRAPHIC] [TIFF OMITTED] T8236.041

[GRAPHIC] [TIFF OMITTED] T8236.042

[GRAPHIC] [TIFF OMITTED] T8236.043

[GRAPHIC] [TIFF OMITTED] T8236.044

[GRAPHIC] [TIFF OMITTED] T8236.045

[GRAPHIC] [TIFF OMITTED] T8236.046

[GRAPHIC] [TIFF OMITTED] T8236.047

[GRAPHIC] [TIFF OMITTED] T8236.048

[GRAPHIC] [TIFF OMITTED] T8236.049

[GRAPHIC] [TIFF OMITTED] T8236.050

[GRAPHIC] [TIFF OMITTED] T8236.051

[GRAPHIC] [TIFF OMITTED] T8236.052

[GRAPHIC] [TIFF OMITTED] T8236.053

[GRAPHIC] [TIFF OMITTED] T8236.054

[GRAPHIC] [TIFF OMITTED] T8236.055

[GRAPHIC] [TIFF OMITTED] T8236.056

[GRAPHIC] [TIFF OMITTED] T8236.057

[GRAPHIC] [TIFF OMITTED] T8236.058

[GRAPHIC] [TIFF OMITTED] T8236.059

[GRAPHIC] [TIFF OMITTED] T8236.060

[GRAPHIC] [TIFF OMITTED] T8236.061

[GRAPHIC] [TIFF OMITTED] T8236.062

[GRAPHIC] [TIFF OMITTED] T8236.063

[GRAPHIC] [TIFF OMITTED] T8236.064

[GRAPHIC] [TIFF OMITTED] T8236.065

[GRAPHIC] [TIFF OMITTED] T8236.066

[GRAPHIC] [TIFF OMITTED] T8236.067

[GRAPHIC] [TIFF OMITTED] T8236.068

[GRAPHIC] [TIFF OMITTED] T8236.069

[GRAPHIC] [TIFF OMITTED] T8236.070

[GRAPHIC] [TIFF OMITTED] T8236.071

[GRAPHIC] [TIFF OMITTED] T8236.072

[GRAPHIC] [TIFF OMITTED] T8236.073

[GRAPHIC] [TIFF OMITTED] T8236.074

[GRAPHIC] [TIFF OMITTED] T8236.075

[GRAPHIC] [TIFF OMITTED] T8236.076

[GRAPHIC] [TIFF OMITTED] T8236.077

[GRAPHIC] [TIFF OMITTED] T8236.078

[GRAPHIC] [TIFF OMITTED] T8236.079

[GRAPHIC] [TIFF OMITTED] T8236.080

[GRAPHIC] [TIFF OMITTED] T8236.081

[GRAPHIC] [TIFF OMITTED] T8236.082

[GRAPHIC] [TIFF OMITTED] T8236.083

[GRAPHIC] [TIFF OMITTED] T8236.084

[GRAPHIC] [TIFF OMITTED] T8236.085

[GRAPHIC] [TIFF OMITTED] T8236.086

[GRAPHIC] [TIFF OMITTED] T8236.087

[GRAPHIC] [TIFF OMITTED] T8236.088

[GRAPHIC] [TIFF OMITTED] T8236.089

[GRAPHIC] [TIFF OMITTED] T8236.090

[GRAPHIC] [TIFF OMITTED] T8236.091

[GRAPHIC] [TIFF OMITTED] T8236.092

[GRAPHIC] [TIFF OMITTED] T8236.412

[GRAPHIC] [TIFF OMITTED] T8236.413

[GRAPHIC] [TIFF OMITTED] T8236.093

[GRAPHIC] [TIFF OMITTED] T8236.094

[GRAPHIC] [TIFF OMITTED] T8236.095

[GRAPHIC] [TIFF OMITTED] T8236.096

[GRAPHIC] [TIFF OMITTED] T8236.097

[GRAPHIC] [TIFF OMITTED] T8236.098

[GRAPHIC] [TIFF OMITTED] T8236.099

[GRAPHIC] [TIFF OMITTED] T8236.100

[GRAPHIC] [TIFF OMITTED] T8236.101

[GRAPHIC] [TIFF OMITTED] T8236.102

[GRAPHIC] [TIFF OMITTED] T8236.103

[GRAPHIC] [TIFF OMITTED] T8236.104

[GRAPHIC] [TIFF OMITTED] T8236.105

[GRAPHIC] [TIFF OMITTED] T8236.106

[GRAPHIC] [TIFF OMITTED] T8236.107

[GRAPHIC] [TIFF OMITTED] T8236.108

[GRAPHIC] [TIFF OMITTED] T8236.109

[GRAPHIC] [TIFF OMITTED] T8236.110

[GRAPHIC] [TIFF OMITTED] T8236.111

[GRAPHIC] [TIFF OMITTED] T8236.112

[GRAPHIC] [TIFF OMITTED] T8236.113

[GRAPHIC] [TIFF OMITTED] T8236.114

[GRAPHIC] [TIFF OMITTED] T8236.115

[GRAPHIC] [TIFF OMITTED] T8236.414

[GRAPHIC] [TIFF OMITTED] T8236.415

[GRAPHIC] [TIFF OMITTED] T8236.416

[GRAPHIC] [TIFF OMITTED] T8236.417

[GRAPHIC] [TIFF OMITTED] T8236.418



                 OVERSIGHT OF THE DEPARTMENT OF JUSTICE

                              ----------                              


                         TUESDAY, JULY 24, 2007

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:32 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, and Sessions.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Chairman Leahy. Good morning. I would ask those who are 
standing in the back to show courtesy to the people who have 
stood in line to be here to sit down. Everybody is welcome here 
who is here, but I would expect all those who are here for the 
hearing to respect the rights of everybody who is here and to 
not stand and block those who are trying to watch the 
proceedings and who have a right to be here.
    Three months ago, when Attorney General Gonzales last 
appeared before this Committee, I said that the Department of 
Justice was experiencing a crisis of leadership perhaps 
unrivaled during its history. Unfortunately, that crisis has 
not abated. Until there is independence, transparency, and 
accountability, the crisis will continue. The Attorney General 
has lost the confidence of the Congress and the American 
people. But through oversight we hope to restore balance and 
accountability to the executive branch. The Department of 
Justice must be restored to be worthy of its name. It should 
not be reduced to another political arm of the White House. It 
was never intended to be that. The trust and confidence of the 
American people in Federal law enforcement must be restored.
    With the Department shrouded in scandal, the Deputy 
Attorney General has announced his resignation. The nominee to 
become Associate Attorney General requested that his nomination 
be withdrawn rather than testify under oath at a confirmation 
hearing. The Attorney General's Chief of Staff, the Deputy 
Attorney General's Chief of Staff, the Department's White House 
liaison, and the White House Political Director have all 
resigned, as have others. I would joke that the last one out 
the door should turn out the lights, but the Department of 
Justice is too important for that. We need to shine more light 
there, not less.
    The investigation into the firing for partisan purposes of 
United States Attorneys, who had been appointed by this 
President, along with an ever-growing series of controversies 
and scandals, have revealed an administration driven by a 
vision of an all-powerful Executive over our constitutional 
system of checks and balances, one that values loyalty over 
judgment, secrecy over openness, and ideology over competence.
    The accumulated and essentially uncontroverted evidence is 
that political considerations factored into the unprecedented 
firing of at least nine United States Attorneys last year. 
Testimony and documents show that the list was compiled based 
on input from the highest political ranks in the White House, 
that senior officials were apparently focused on the political 
impact of Federal prosecutions, on whether Federal prosecutors 
were doing enough to bring partisan voter fraud and corruption 
cases, and that the reasons given for these firings were 
contrived as part of a cover-up.
    What the White House stonewalling is preventing is 
conclusive evidence of who made the decisions to fire these 
Federal prosecutors. We know from the testimony that it was not 
the President. Everyone who has testified has said that he was 
not involved. None of the senior officials at the Department of 
Justice could testify how people were added to the list or the 
real reasons that people were included among the Federal 
prosecutors to be replaced. Indeed, the evidence we have been 
able to collect points to Karl Rove and the political 
operatives at the White House. The stonewalling by the White 
House raises the question: What is it that the White House is 
so desperate to hide?
    The White House has asserted blanket claims of executive 
privilege, despite officials' contentions that the President 
was not involved. They refuse to provide a factual basis for 
their blanket claims, have instructed former White House 
officials not to testify about what they know, and then 
instructed Harriet Miers to refuse even to appear as required 
by a House Judiciary Committee subpoena. Now, anonymous 
officials are claiming that the statutory mechanism to test 
White House assertions of executive privilege no longer 
governs. In essence, the White House asserts that its claim of 
privilege is the final word, that Congress may not review it, 
and, of course, that no court dare review it. Here again, this 
White House claims to be above the law.
    My oath, unlike those who have apparently sworn their 
allegiance to this President, is to the United States 
Constitution. I believe in checks and balances and in the rule 
of law.
    Despite the stonewalling and obstruction, we have learned 
that Todd Graves, U.S. Attorney in the Western District of 
Missouri, was fired after he expressed reservations about a 
lawsuit that would have stripped many African-American voters 
from the rolls in Missouri. When the Attorney General replaced 
Mr. Graves with Bradley Schlozman, the person pushing the 
lawsuit, that case was filed but ultimately, of course, was 
thrown out of court. Once in place in Missouri, though, Mr. 
Schlozman also brought indictments on the eve of a closely 
contested election, despite the Justice Department policy, 
longstanding policy not to do so. This is what happens when a 
responsible prosecutor is replaced by one considered a ``loyal 
Bushie'' for partisan, political purposes.
    Mr. Schlozman also bragged about hiring ideological 
soulmates. Monica Goodling likewise admitted ``crossing the 
line'' when she used a political litmus test for career 
prosecutors and immigration judges. And rather than keep 
Federal law enforcement above politics, this administration is 
more intent on placing its actions above the law.
    The Attorney General admitted recently in a video for 
Justice employees that injecting politics into the Department's 
hiring is unacceptable. But is he committed to corrective 
action and routing out the partisanship in Federal law 
enforcement? His lack of independence and tendency to act as if 
he were the President's lawyer rather than the Attorney General 
of the United States makes that doubtful. From the infamous 
torture memo, to Mr. Gonzales's attempt to prevail on a 
hospitalized Attorney General Ashcroft to certify an illegal 
eavesdropping program, to the recent opinion seeking to justify 
Harriet Miers's contemptuous refusal to appear before the House 
Judiciary Committee, the Justice Department has been reduced to 
the role of an enabler for this administration. What we need 
instead is genuine accountability and real independence.
    We learned earlier this year of systematic misuse and abuse 
of National Security Letters, a powerful tool for the 
Government to obtain personal information without the approval 
of a court or prosecutor. The Attorney General has said he had 
no inkling of these or other problems with vastly expanded 
investigative powers. But now we know otherwise. Recent 
documents obtained through Freedom of Information Act lawsuits 
and reported in The Washington Post indicate that the Attorney 
General was receiving reports in 2005 and 2006 of violations in 
connection with the PATRIOT Act and abuses of National Security 
Letters. Yet, when the Attorney General testified under oath 
before the Senate Select Committee on Intelligence in April 
2005, he said that ``[t]he track record established over the 
past 3 years has demonstrated the effectiveness of the 
safeguards of civil liberties put in place when the Act was 
passed.'' Earlier this month, in responses to written questions 
I sent to the Attorney General about when he first learned of 
problems with National Security Letters, he once again failed 
to mention these reports of problems.
    Only with the openness and honesty that brings true 
accountability will the Department begin to move forward and 
correct the problems of the last few years. Instead, we have 
leadership at the Department of Justice whose expressions of 
concern and admissions that mistakes were made only follow 
public revelations and amount to regrets really not that 
mistakes and excesses were made, but apparently regrets that 
somebody found out about those excesses.
    In the wake of growing reports of abuses of National 
Security Letters, the Attorney General announced a new internal 
program. This supposed self-examination, with no involvement by 
the courts, no report to Congress, and no other outside check, 
essentially translates to ``Trust us.'' Well, with a history of 
civil liberties abuses and cover ups, this administration has 
squandered our trust. I am not willing to accept a simple 
statement of ``Trust us.'' I don't trust you.
    Earlier internal reviews, like the Intelligence Oversight 
Board and the Privacy and Civil Liberties Oversight Board, have 
been ineffective and inactive, failing to take action on the 
violations reported to them. Only with a real check from 
outside of the executive branch can we have any confidence that 
abuses will be curbed and balance restored.
    A tragic dimension of the ongoing crisis of leadership at 
the Justice Department is the undermining of good people and 
the crucial work that the Department does. Thousands of honest, 
hard-working prosecutors, agents, and other civil servants 
labor every day to detect and prevent crime, uncover 
corruption, promote equality and justice, and keep all 
Americans safe from terrorism. But, sadly, prosecutions will 
now be questioned as politically motivated and evidence will be 
suspected of having been obtained in violation of laws and 
civil liberties. Once the Government shows a disregard for the 
independence of the justice system and the rule of law, it is 
very hard to restore the people's faith, and it is going to be 
very hard to restore my trust in what is going on.
    This Committee will do its best to try to restore 
independence, accountability, and commitment to the rule of law 
to the operations of the Justice Department. That is something 
that both Republicans and Democrats could agree on.
    [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.
    Attorney General Gonzales, I direct the remarks in my 
opening statement to you. Your photo appears in the morning 
press with the caption, ``I accept full responsibility.'' Let 
me suggest to you that that is not enough. The question is 
whether the Department of Justice is functioning as it must in 
order to protect the vital interests of the American people.
    Next to the Department of Defense, the Department of 
Justice has the major responsibility for protecting Americans' 
security--investigation of terrorism, dealing with drug sales, 
dealing with organized crime, violent crime. And the issues 
relating to the resignations of the U.S. Attorneys have placed 
a very heavy cloud over the Department. There is evidence of 
low morale, very low morale; lack of credibility; candidly, 
your personal credibility. The Department is dysfunctional, as 
so many items have arisen where there is a substantial basis to 
conclude that there is a preoccupation with the investigation 
on the resignations of the Attorneys. And I have asked you both 
formally in this room and in our private conversations to give 
us an explanation as to why each one of these U.S. Attorneys 
was asked to resign, and that has not been done.
    We have sought an accommodation to question the remaining 
witnesses, and I believe that the administration has not had 
any significant degree of flexibility in trying to work it out 
with congressional oversight. I believe we are prepared to 
concede that there will not be an oath because there are 
penalties otherwise; prepared to concede that it could be in 
private, although it ought to be public, it is the public's 
business; prepared to concede that both Houses wouldn't have to 
engage in the questioning of these witnesses, that a 
representative group from the House Judiciary Committee and the 
Senate Judiciary Committee, bipartisan, bicameral, would do the 
questioning. But not to have a transcript I think is patently 
unreasonable. But I am prepared even to do that if we could get 
on with this matter, reserving the right for Congress to come 
back if the informal interviews are unsatisfactory, then to 
proceed with our authorities under subpoenas. And we were met 
with the response, no, if you question these witnesses under 
our unilateral terms, you cannot come back later.
    Well, that is simply going too far. I do not believe that 
the Congress has the right to give up our powers. We cannot 
delegate them, we cannot abrogate them. They are our 
responsibilities. We cannot give them up as part of an 
arrangement with the administration.
    Now we have a very remarkable turn of events. We now have 
the invitation, announcement that the administration will 
preclude the U.S. Attorney for the District of Columbia from 
pursuing a contempt citation. Now, if that forecloses a 
determination of whether executive privilege has been properly 
imposed, then the President in that manner can stymie 
congressional oversight by simply saying there is executive 
privilege. Since we cannot take it to court, the President's 
word stands, and the constitutional authority and 
responsibility for congressional oversight is gone.
    Now, that is carrying this controversy to really an 
incredible level. If that is to happen, the President can run 
the Government as he chooses, answer no questions, say it is 
executive privilege. He cannot go to court, and the President's 
word stands.
    Now, we have been exploring some alternatives, and I will 
be asking you about them. The Attorney General has the 
authority to appoint a special prosecutor. You are recused, but 
somebody else could do it. You are recused because you know all 
of the principals. You have a conflict of interest. Your 
recusal is understandable. But doesn't the President have an 
identical conflict of interest? Can the President foreclose the 
Congress from moving ahead and making an effort at having a 
judicial determination as to the propriety of the claim of 
executive privilege?
    We also have the alternative of convening the Senate and 
having a contempt citation and trying it in the Senate. That 
might be productive. We could use the precedent of the Alcee 
Hastings impeachment proceeding where a Committee took over, 
had it in this room--I was the Vice Chairman, Senator Bingaman 
was the Chairman--so we would not take up the full time of the 
Senate in moving for a contempt citation. But we are going to 
have to move ahead on that, Mr. Attorney General.
    We have so many items that every week a new issue arises. 
And I sent you letters advising you that we would be pursuing 
these matters at this hearing. One is on the legality for the 
Terrorist Surveillance Program. You said categorically there 
has not been any serious disagreement about the program. And 
yet we know from former Deputy Attorney General James Comey 
exactly the opposite is true. This is what he testified:
    When you and the Chief of Staff went to extract from then-
Attorney General Ashcroft, who was in the hospital under 
sedation, approval of the program, 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.''
    I will be asking you about that, giving you a chance to 
explain that, although it bedevils me to see any conceivable 
explanation for your saying no disagreement and your going to 
the hospital of the Attorney General, who is no longer in 
power, he has delegated his authority, and seek to extract 
approval from him. It seems to me that it is just decimating, 
Mr. Attorney General, as to both your judgment and your 
credibility.
    But that is not all. The list goes on and on. I wrote to 
you about the death penalty case where U.S. Attorney Paul 
Charlton could only get 5 to 10 minutes of the time of the 
Deputy Attorney General, who talked to you. You would not talk 
to him. We will give you a chance to explain that.
    On the PATRIOT Act, you testified repeatedly no problems, 
and there is a wealth of information about very serious 
incidents.
    And then this OxyContin case, which has reached the 
newspapers, where there was malicious, deliberate falsification 
of the medicine; people died.
    Is your Department functioning? Do you review these 
matters? How many matters are there which do not come to our 
attention because you do not tell us and the newspapers do not 
disclose them?
    Thank you, Mr. Chairman.
    Chairman Leahy. Well, thank you very much.
    I might mention Senator Specter has requested a hearing on 
OxyContin, and I think he is absolutely right on that, and we 
will have one at your request.
    Mr. Attorney General, 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?
    Attorney General Gonzales. I do.
    Chairman Leahy. Go ahead, Mr. Attorney General. And I 
should note before you start that there will be a series of 
votes around 10:20, and I will consult with Senator Specter how 
best to continue during that time. At most, we will try to 
limit the break.
    Attorney General Gonzales. I understand, Mr. Chairman.
    Chairman Leahy. Go ahead.

   STATEMENT OF ALBERTO R. GONZALES, ATTORNEY GENERAL OF THE 
     UNITED STATES, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.

    Attorney General Gonzales. I do have the great pleasure to 
work with over 100,000 dedicated public servants at the 
Department of Justice. I admire the dedication to the pursuit 
of justice for all Americans. The Department's many 
accomplishments are, in reality, their accomplishments.
    As Attorney General, I have worked with these fine men and 
women to keep our country safe from terrorists, our 
neighborhoods safe from violent crime, and our children safe 
from predators.
    As my written statement explains in more detail, when it 
comes to keeping our neighborhoods safe and protecting our 
children, the Department has made great progress. In my brief 
remarks this morning, I want to focus on the Department's No. 1 
priority of keeping our country safe from terrorists and the 
urgent need, quite frankly, for more help from Congress in this 
fight.
    As the recent National Intelligence Estimate as well as the 
car bombings in London and Scotland demonstrate, the threat 
posed to America and its allies by al Qaeda and other terrorist 
groups remains very strong. To respond effectively to this 
threat, it is imperative that Congress modernize the Foreign 
Intelligence Surveillance Act of 1978, known as FISA. Doing so 
is critically important to intelligence gathering, and it 
really just makes plain sense.
    When Congress drafted FISA in 1978, it defined the 
statute's key provisions in terms of telecommunications 
technologies that existed at that time. As we all know, there 
have been sweeping changes in the way that we communicate since 
FISA became law. And these changes have had unintended 
consequences on FISA's operation.
    For example, without any change in FISA, technological 
advancements have actually made it more difficult to conduct 
surveillance on suspected terrorists and other subjects of 
foreign intelligence surveillance overseas.
    In April, at the request of the Senate Select Committee on 
Intelligence, the Director of National Intelligence transmitted 
a comprehensive FISA modernization proposal to Congress. The 
proposal builds upon thoughtful bills introduced during the 
last Congress, and the bill would accomplish several key 
objectives. Most importantly, the administration's proposal 
restores FISA's original focus on protecting the privacy of 
U.S. persons in the United States. FISA generally should apply 
when conducting surveillance on those in the United States, but 
it should not apply when our intelligence community targets 
persons overseas. Indeed, it was advancements in technology and 
not any policy decision of Congress that resulted in wide-scale 
application of FISA and its requirements to go to court to 
overseas targets.
    This unintended consequence clogs the FISA process and, 
quite frankly, hurts national security and civil liberties. As 
amended, FISA's scope would focus on the subject of the 
surveillance and the subject's location rather than on the 
means by which the subject transmits a communication or the 
location where the Government intercepts a communication. FISA 
would become technology neutral. Its scope would no longer be 
affected by changes in communications technologies.
    The bill would also fill a gap in current law by permitting 
the Government to direct communications companies to assist in 
the conduct of lawful communications intelligence activities 
that do not constitute ``electronic surveillance'' under FISA. 
This is a critical provision that is a necessary companion to 
any change in FISA's scope. Importantly, the administration's 
proposal would provide a robust process of judicial review for 
companies that wish to challenge these directives.
    The administration's proposal would also provide 
protections from liability to companies that are alleged to 
have assisted the Government in the wake of the September 11th 
terrorist attacks. The bill also streamlines the FISA 
application process to make FISA more efficient, while at the 
same time ensuring that the FISA Court has the information it 
needs to make the probable cause findings required.
    Finally, the administration's proposal would amend the 
statutory definition of ``agent of a foreign power'' to ensure 
that it includes groups who are engaged in the international 
proliferation of weapons of mass destruction or who possess or 
are expect to transmit or receive foreign intelligence 
information while in the United States.
    FISA modernization is critically important, and we urge the 
Senate to reform this critical statute as soon as possible. I 
am hopeful that this is an area we can work on together with 
the Congress and this Committee. I think we can find common 
ground on the central principles underpinning the 
administration's proposal and, in particular, on the fact that 
we should not extend FISA's protections to terrorist suspects 
located overseas.
    We already have had several helpful sessions with the 
Intelligence Committees in the Senate and the House on this 
issue. We look forward to continuing to work with the Senate 
and this Committee on this important endeavor.
    Thank you, Mr. Chairman.
    [The prepared statement of Attorney General Gonzales 
appears as a submission for the record.]
    Chairman Leahy. Thank you, Mr. Attorney General, and your 
full statement, of course, will be made a part of the record.
    We have documents that we have--not in answer to requests 
made by this and other committees, but obtained through Freedom 
of Information Act lawsuits. They indicate that you received 
reports in 2005 and 2006 of violations in connection with the 
PATRIOT Act abuses of National Security Letters. The violations 
apparently included unauthorized surveillance, illegal 
searches, and improper collection of data.
    But when you testified before the Senate Select Committee 
on Intelligence in April 2005, you sought to create the 
impression that Americans' civil liberties and privacies were 
being effectively safeguarded and respected, and you said, and 
I quote: ``The track record established over the past 3 years 
has demonstrated the effectiveness of the safeguards of civil 
liberties put in place when the Act was passed.''
    Then I sent you written questions, and earlier this month, 
you responded about when you first learned of problems with 
National Security Letters. But in those responses, you did not 
mention these earlier reports of problems.
    So my question is this--as you know, I have written a 
number of these questions to you in advance so that you would 
be able to answer. Would you like to revise or correct your 
April 2005 testimony to the Senate Select Committee on 
Intelligence, which was misleading, or your July 6, 2007, 
response to this Committee's written questions? Do you care to 
revise either of them?
    Attorney General Gonzales. Thank you for the question, Mr. 
Chairman, and I can understand the confusion or concern about 
my prior statements, which, of course, were made in connection 
with the discussions about reauthorization of the PATRIOT Act 
and were also made in the context of the IG's investigation of 
abuses under the PATRIOT Act, exercising his authority under 
the PATRIOT Act to investigate abuses.
    My comments are similar to comments made by the Director of 
the FBI, and--
    Chairman Leahy. I do not care if they are similar to 
anybody else. They are your comments I am concerned about. I am 
not concerned about somebody's else comments. I am concerned 
about yours. They seem contradictory.
    Attorney General Gonzales. And my comments reflected the 
understanding on my part, Mr. Chairman, that IOB violations--
which is what I want to refer to these as, ``IOB violations, 
referrals or violations made the Intelligence Oversight Board--
that these do not reflect, as a general matter, intentional 
abuses of the PATRIOT Act, that any--
    Chairman Leahy. Are you saying they are not abuses if they 
are not committed without malice? Is that what you are saying?
    Attorney General Gonzales. That's not what I'm saying. 
Obviously, they are very, very--and every such abuse, because 
it does constitute abuse, is, in fact, referred to the IOB and 
also is, in fact, referred to the Inspection Division at the 
FBI.
    Now, the good news is that when a referral occurs, there is 
an examination and appropriate action is taken. The other bit 
of good news is that I have directed each IOB referral to the 
FBI also be made simultaneously to the National Security 
Division, and the National Security Division is going to study 
these IOBs, make a semiannual report to me, and identify 
whether or not there are any trends here that we identify.
    Chairman Leahy. Well, let me ask you about that, because I 
understand that approximately 500--and if you want to go back 
and elaborate on your answer, I will certainly give you time 
because I do not think you have answered the question I asked. 
But you keep talking about the Intelligence Oversight Board, 
these things are referred to it. I understand that 
approximately 500 incidents are annually referred to the 
Intelligence Oversight Board, but the General Counsel of the 
FBI has not received a single response from the Board. I 
thought I was the only one that did not get responses, but 
apparently 500 a year do not get back a single response. The 
Board is not sent forward a single report of potentially 
unlawful intelligence activities. But you are talking about an 
oversight system that reports to that same Board.
    You know, is this, oh, gosh, we have a problem, we will not 
tell anybody about it, we will send it to somebody who will 
file it away and nothing will ever be heard again, so, 
therefore, we have no problems? It is almost an Alice in 
Wonderland situation.
    Attorney General Gonzales. I think you have misunderstood 
my response, Mr. Chairman. What I said or certainly intended to 
say was the fact that it is referred to the IOB does not mean 
that it stops there. It is also sent to the Inspection 
Division, and appropriate action is taken. We have also 
instituted another check by involving the National Security 
Division so that they can also identify any trends and make 
suggestions in policies or training so that we can address 
these kinds of issues.
    Chairman Leahy. Well, in April 2005, when you said the 
track record established in the past 3 years demonstrated the 
effectiveness of the safeguards, that basically there had not 
been any violations, was that correct or not? Had there been 
violations?
    Attorney General Gonzales. What I can say is--
    Chairman Leahy. In the 3 years before you testified, had 
there been any violations?
    Attorney General Gonzales. A violation--
    Chairman Leahy. Yes or no?
    Attorney General Gonzales. A violation of IOB may not be a 
violation of the PATRIOT Act. In fact, the Inspector General I 
think has indicated that. And, Mr. Chairman, my view and the 
views of other leadership in the Department is, in fact, when 
we are talking about abuses of the PATRIOT Act, we are talking 
about intentional, deliberate misuse of the PATRIOT Act, not 
when some agent writes down the wrong phone number in a 
National Security Letter. And, of course, whenever a mistake 
like that happens, of course, we address it and appropriate 
action is taken.
    Chairman Leahy. Such as?
    Attorney General Gonzales. We institute training for-- 
additional training, if it is a question of providing 
additional guidance, providing additional training, or 
disciplinary action against the agent.
    Chairman Leahy. Incidentally, could I ask you this? We have 
93 United States Attorneys. Only 70 have been confirmed by the 
Senate. Do you have any idea when we are going to get--six have 
just been sent up. When are we going to get the 17 remaining 
ones?
    Attorney General Gonzales. We are working as hard as we can 
with the White House and with Members of Congress so that we 
can go through the vetting process, the evaluation process, so 
we can make recommendations to the President. The full intent 
is, as I have committed to this Committee, that we are going to 
have Senate-confirmed U.S. Attorneys in these positions.
    Chairman Leahy. I would hope so because you tried to do 
that back-door thing that you got inserted into the law, and 
the Congress has repealed that because of revulsion at the use 
of it. The President signed it.
    My last question is this: As you know, if either the Senate 
or House finds somebody in contempt, they have to refer it to 
the U.S. Attorney for the District of Columbia, who has to then 
not necessarily prosecute, but at least present the contempt 
citation to a grand jury to determine whether criminal charges 
are appropriate. Last week, the administration said that the 
U.S. Attorney wouldn't be allowed to carry out that. So my 
question to you is: If a House of Congress certified a contempt 
citation against former or current officials for failing to 
appear or comply with a congressional subpoena, would you 
permit the U.S. Attorney to carry out the law and refer the 
matter to a grand jury, as required by 2 U.S.C. 194, and, 
therefore, fulfill the constitutional duty to faithfully 
execute the law? Or would you block the execution of the law?
    Attorney General Gonzales. Mr. Chairman, your question 
relates to an ongoing controversy which I am recused from. I 
can't--I'm not going to answer that question.
    Chairman Leahy. Is there anybody left in the Department of 
Justice who could answer the question?
    Attorney General Gonzales. Of course, there is.
    Chairman Leahy. Who?
    Attorney General Gonzales. With respect to these kinds of 
decisions--
    Chairman Leahy. Who?
    Attorney General Gonzales.--it would be made by the 
Solicitor General.
    Chairman Leahy. Well, then we may ask him why they are on 
this refusal to prosecute that the administration talked about, 
whether that extends to the executive branch lying to Congress 
or perjury or destruction of evidence or obstruction of 
justice, because, Mr. Attorney General, those are going to be 
real issues. They are not going to be just debating points. 
Thank you.
    Senator Specter?
    Senator Specter. Let me move quickly through a series of 
questions. There is a lot to cover, starting with the issue 
that Mr. Comey raises. You said, ``There has not been any 
serious disagreement about the program.'' Mr. Comey's testimony 
was that, ``Mr. Gonzales began to discuss why they were there 
to seek approval.'' And he then says, ``I was very upset. I was 
angry. I thought I had just witnessed an effort to take 
advantage of a very sick man.''
    First of all, Mr. Attorney General, what credibility is 
left for you when you say there is no disagreement and you are 
a party to going to the hospital to see Attorney General 
Ashcroft under sedation to try to get him to approve the 
program?
    Attorney General Gonzales. The disagreement that occurred 
and the reason for the visit to the hospital, Senator, was 
about other intelligence activities. It was not about the 
Terrorist Surveillance Program that the President announced to 
the American people.
    Now, I would like the opportunity--
    Senator Specter. Mr. Attorney General, do you expect us to 
believe that?
    Attorney General Gonzales. Well, may I have the opportunity 
to talk about another very important meeting in connection with 
the hospital visit that puts it into context.
    There was an emergency meeting in the White House Situation 
Room that afternoon. It involved senior members of the 
administration and the bipartisan leadership of the Congress, 
both House and Senate, as well as the bipartisan leadership of 
the House and Senate Intel Committees, the Gang of Eight.
    The purpose of that meeting was for the White House to 
advise the Congress that Mr. Comey had advised us that he could 
not approve the continuation of vitally important intelligence 
activities despite the repeated approvals during the past 2 
years of the same activities.
    Senator Specter. Okay. Assuming you are leveling with us on 
this occasion--
    Attorney General Gonzales. May I--
    Senator Specter. No, I want to move to the point about how 
can you get approval from Ashcroft for anything when he is 
under sedation and incapacitated--for anything.
    Attorney General Gonzales. May I continue the story, 
Senator--
    Senator Specter. No. I want you to answer my question.
    Attorney General Gonzales. Senator, obviously there was 
concern about General Ashcroft's condition, and we would not 
have sought, nor did we intend to get any approval from General 
Ashcroft if, in fact, he wasn't fully competent to make that 
decision. But General--there are no rules governing whether or 
not General Ashcroft can decide, ``I am feeling well enough to 
make this decision.''
    Senator Specter. But, Attorney General Gonzales, he had 
already given up his authority as Attorney General. Ashcroft 
was no longer Attorney General.
    Attorney General Gonzales. And he could always reclaim 
that. There are no rules about--
    Senator Specter. While he is the hospital under sedation?
    Attorney General Gonzales. Again, we didn't know--we know, 
of course, that he was--that he was--he was ill, that he had 
had surgery.
    Senator Specter. I am not making any progress here. Let me 
go to another topic. Attorney General, I would not-- and I 
would like to have a lot of time, but I have got 3 minutes and 
43 seconds left, and seven topics to cover with you.
    Mr. Attorney General, do you think constitutional 
government in the United States can survive if the President 
has the unilateral authority to reject congressional inquiries 
on grounds of executive privilege and the President then acts 
to bar the Congress from getting a judicial determination as to 
whether that executive privilege is properly invoked?
    Attorney General Gonzales. Senator, you're asking me a 
question that is related to an ongoing controversy, which I am 
recused. I will say the President has tried very hard--
    Senator Specter. No, no. I am not asking you a question 
about something you are recused of. I am asking you a question 
about constitutional law.
    Attorney General Gonzales. You're asking me a question 
that's related--
    Senator Specter. I am asking you whether you could have--
    Attorney General Gonzales.--to an ongoing controversy.
    Senator Specter.--a constitutional government with the 
Congress exercising its constitutional authority for oversight 
if, when the President claims executive privilege, the 
President then forecloses the Congress from getting a judicial 
determination of it. That is a constitutional law question.
    Attorney General Gonzales. Senator, both the Congress and 
the President have constitutional authorities. Sometimes they 
clash. In most cases, accommodations are reached. In the very 
rare instances, they sometimes litigate it in the courts.
    Senator Specter. Would you focus on my question for just a 
minute, please?
    Attorney General Gonzales. Senator, I'm not going to answer 
this question because it does relate to an ongoing controversy 
in which I am recused.
    [Audience comments.]
    Chairman Leahy. I would note, please, we will have decorum 
in here. Senator Specter has the right to ask all the questions 
he has. The Attorney General has the right to be heard. I have 
indicated to Senator Specter, especially that I am taking some 
of his time in saying this, that he has extra time. But, 
please, let us continue without comments.
    Senator Specter. I am not going to pursue that question, 
Mr. Attorney General, because I see it is hopeless. It has got 
nothing to do with your recusal. You are the Attorney General. 
You are also a lawyer. And we are dealing with a very 
fundamental controversy where the President is exerting 
executive authority under executive privilege and the Congress 
is exerting constitutional authority for oversight, and we are 
trying to take it to court. The court decides when that 
conflict exists. It has got nothing to do with necessarily the 
U.S. Attorneys who were asked to resign.
    Let me move ahead to another subject, see if I can get an 
answer here. Do you have a conflict of interest on the matter 
involving the resignations of the U.S. Attorneys?
    Attorney General Gonzales. Yes. I am recused from that.
    Senator Specter. Does the President have a conflict of 
interest in deciding whether or not to allow a contempt 
citation to go forward to former White House Counsel Harriet 
Miers?
    Attorney General Gonzales. Senator, I am not going to 
answer that question. Again, you're talking about--asking me 
questions about a matter in which I am recused. I'm not going 
to answer that question.
    Senator Specter. Well, let's see if somewhere somehow we 
can find a question you will answer. How about the death 
penalty case? I wrote you about this. We had a man who was 
convicted of murder. The victim's body was never recovered. 
There was no forensic evidence directly linking the defendant 
to the victim's death. The U.S. Attorney, a man named Paul 
Charlton, contacted your office and said, ``I don't think this 
is a proper case for the death penalty.''
    Deputy Attorney General Paul McNulty had a conversation 
with Mr. Charlton and had a conversation with you, and then 
McNulty's Chief of Staff, Mike Elston, called Charlton--and 
this is Charlton's testimony: ``Elston indicated that McNulty 
had spoken to the Attorney General and that McNulty wanted me 
to be aware of two things: first, that McNulty had spent a 
significant amount of time on this issue with the Attorney 
General, perhaps as much as 5 or 10 minutes.''
    Is that accurate factually? Will you answer a question as 
to a fact, as to whether you talked to McNulty about this case 
for as much as 5 or 10 minutes?
    Attorney General Gonzales. I have no specific recollection 
as to this particular case, but I can tell you we have a very 
detailed process where hours are spent by lawyers, including 
the U.S. Attorney, our Capital Case Review Unit, who then make 
recommendations to the Deputy Attorney General.
    Senator Specter. I am not interested in that. I am 
interested in an answer to my question. If you don't know, if 
you don't remember--
    Attorney General Gonzales. I don't--I--
    Senator Specter. Wait a minute. I'm not finished asking you 
the question. If you don't know or you don't remember what 
happened when you stood on a decision to have a man executed--
that is what you are saying.
    Attorney General Gonzales. I have no specific recollection 
about the amount of time that I talked with Paul McNulty on 
this particular issue.
    Senator Specter. Well, would you disagree with McNulty that 
it was 5 to 10 minutes?
    Attorney General Gonzales. I can't agree with that if I 
don't recall, Senator.
    Senator Specter. Okay. You can't agree with it. I didn't 
ask you that. I asked if you disagreed with it.
    Attorney General Gonzales. I can't agree or disagree with 
it.
    Senator Specter. Would you say that 5 to 10 minutes would 
be a ``significant amount of time'' for you to spend on a case 
involving the death penalty?
    Attorney General Gonzales. It would depend on the 
circumstances of the case and the recommendations coming up and 
the facts. Those would all dictate how much time I would spend 
personally on a particular case, because we have a very 
extensive review process within the Department where hours are 
spent analyzing what is the appropriate course of action for 
the Department of Justice.
    Senator Specter. Well, Mr. Attorney General, I am not 
totally unfamiliar with this sort of thing. When I was district 
attorney of Philadelphia, I had 500 homicides a year. I did not 
allow any assistant to ask for the death penalty that I had not 
personally approved. And when I asked for the death penalty, I 
remembered the case.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much.
    Senator Kohl.
    Senator Kohl. Thank you, Mr. Chairman.
    Mr. Attorney General, the detention center at Guantanamo 
Bay continues to harm our image around the world. There is 
growing consensus on this. Secretary of Defense Robert Gates 
told the House Committee, ``I came to this job thinking that 
Guantanamo Bay should be closed.''
    According to press reports, Secretary of State Rice has 
also supported efforts within the administration to close 
Guantanamo. And former Secretary of State Colin Powell said, 
``If it was up to me, I would close Guantanamo, not tomorrow 
but this afternoon.'' Last year, even the President himself 
recognized that Guantanamo has been the focus of international 
criticism, and he said, ``I'd like to close Guantanamo.''
    Recent press reports have disclosed that efforts are 
underway in the administration to do that. According to the New 
York Times, however, these efforts ``were rejected after 
Attorney General Gonzales and some other Government lawyers 
expressed strong objections.''
    So where are you on this? Do you think that we should close 
Guantanamo?
    Attorney General Gonzales. I wish we could close 
Guantanamo. I am with everyone else. We should close 
Guantanamo. However, a need remains, and there are legitimate 
questions about what do you do with these individuals. I guess 
we could turn them loose, Senator, and they could end up 
fighting against us again. We could bring them into the United 
States, although I understand the Senate recently rejected that 
overwhelmingly. Bringing them into the United States raises 
some serious legal issues. And as the Attorney General, my job 
was to make sure that all of the policymakers were aware that 
there were serious legal issues that would arise if, in fact, 
they were brought into the United States.
    But if your question is would I support closing Guantanamo, 
absolutely, but not at the risk of the lives of our men and 
women who are fighting overseas and not at the risk of the 
national security of our country.
    Senator Kohl. But we can put them into the American justice 
system, and the American justice system, as you know, has 
worked very effectively, even with respect to dealing with 
terrorists and members of al Qaeda. There are ways in which we 
can restrict classified information, important information. So 
if you support closing Guantanamo, then why don't you put into 
motion the kinds of things that will result in just that?
    Attorney General Gonzales. Senator, I do believe there are 
legitimate risks involved in bringing people into the United 
States and putting them into our system, quite frankly. Let's 
say--
    Senator Kohl. What are the risks?
    Attorney General Gonzales. Let's say that the evidence that 
we have is not evidence that we want to compromise in order to 
bring someone to trial. Once they're into the United States, if 
they come from a country where, if we send them back, they may 
be tortured, they will have the right to ask for asylum. And so 
we may not have the ability to either hold them or to throw 
them out of the United States and we have to let them go.
    And so those are sort of the nightmare scenarios that we 
worry about in bringing people into the United States.
    Senator Kohl. Are you saying, therefore, that you do not 
support closing Guantanamo?
    Attorney General Gonzales. I support closing Guantanamo, 
Senator, but I think we need to do it with our eyes wide open. 
I think we probably would come to the Congress and ask for 
legislation in order to ensure that we can protect this 
country.
    Senator Kohl. Well, why don't we do that?
    Attorney General Gonzales. That is totally something that 
is a serious discussion and debate.
    Senator Kohl. So you may--
    Attorney General Gonzales. In the administration.
    Senator Kohl. You may, in fact, decide to close Guantanamo 
and come to Congress for authorization.
    Attorney General Gonzales. Again, there's been no decision 
made by the President. My judgment is the President, like you, 
wants to close Guantanamo. But like you, he doesn't want to do 
so if it means jeopardizing the security of our country.
    And so we're trying to work through these, and you're 
right, it will ultimately, in my judgment, require additional 
consultation with the Congress.
    Senator Kohl. Mr. Attorney General, consumers today, as you 
know, are suffering from near record high gas prices, and most 
of this is due to the high price of crude oil. Despite this, 
the administration has threatened to veto our NOPEC 
legislation, which would enable the Justice Department and only 
the Justice Department to sue OPEC member nations for violating 
U.S. antitrust law when they conspire to fix the price of oil, 
which they do. This bill passed both the House and the Senate 
with overwhelming margins. Under this bill, the Justice 
Department and only the Justice Department could institute this 
kind of a proceeding.
    So why do you not want this authority?
    Attorney General Gonzales. I think cartels are bad, and we 
ought to prosecute them and go after them. I agree with that. 
The question is whether or not going after this cartel in this 
way, through litigation, is the right approach because you 
implicate questions of sovereignty and state action and, you 
know, calls into question the fact that, you know, we have a 
presence overseas and does that mean that either the American 
Government or American businesses are going to be subject to 
litigation, the jurisdiction of other countries overseas. I 
think that's the concern that we have, is the downstream impact 
or the result, the impetus that's going to arise as a result of 
this legislation.
    We think that a better approach is to continue to try to 
work through this, through the Department of Energy and the 
Department of State, through diplomatic means, and that's the 
concern that we have, Senator. Again, cartels are bad. We'd 
like to deal with it. I just--we're concerned that this may not 
be the best approach.
    Senator Kohl. But you don't have to use, if you don't--you 
know that the only way in which the legislation can be effected 
is through the President and the Department of Justice. So if 
you think it is legislation that should not be used, you won't 
use it.
    Attorney General Gonzales. But once Congress passes 
legislation and puts it on the books, what is going to be the 
response of another country who sees this action taken by the 
Congress? And are they going to take some kind of action in 
response to simply the legislation passing?
    It's hard to predict. I would simply urge the Congress to 
consider giving the Department of State and the Department of 
Energy additional time to try to work through this.
    Senator Kohl. Mr. Attorney General, since our last 
oversight hearing, it seems that very little has improved at 
the Justice Department. Many of the people in senior positions 
have resigned, as you know, and according to press reports, 
these positions have not been filled, in many cases because 
people have turned down these jobs. The American public has 
lost confidence in you, according to recent polls. Morale at 
the Justice Department remains low.
    The integrity of the Office of the Attorney General as an 
institution is obviously more important, I am sure you would 
agree, than the person sitting in it. In other words, Mr. 
Attorney General, this cannot be just all about you.
    And so would you please explain to us why the 
administration of justice and the American people would not be 
better served by somebody sitting in the office who does not 
have all of the problems that you possess with respect to 
believability, credibility, confidence, trust? What keeps you 
in the job, Mr. Attorney General?
    Attorney General Gonzales. That's a very good question, 
Senator. Ultimately I have to decide whether or not is it 
better for me to leave or to stay and try to fix the problems. 
I've decided to stay and fix the problems, and that's what I 
have been doing.
    You talked about vacancies. We're at a time in the 
administration where there are going to be vacancies in 
agencies. It's just natural. Obviously, there have been changes 
in personnel at the leadership of the Department. In many ways, 
that is a good thing. We've just identified a new interim 
Deputy Attorney General. He's a career prosecutor. I think he 
will do a great job. I've got a Chief of Staff who is also a 
United States Attorney, and so we're bringing in good, 
experienced people into these positions because we want to 
address the question about lack of leadership. I think we have 
some strong leadership in the Department of Justice. We have 
changed policies. We have been made aware of some issues 
relating to some of our policies with respect to hiring of 
immigration judges, with respect to the Honors Program, with 
respect to hiring Assistant United States Attorneys, with 
respect to hiring in the Civil Rights Division. And so we have 
implemented policies to address each and every one of these.
    We've also worked very hard to improve communication, not 
with just the U.S. Attorney community but also with respect to 
every employee at the Department of Justice. I think the way 
you measure morale is you measure output. And I think if you 
look at the output at the Department these past 6 months, it's 
been outstanding.
    Sure, we've had to deal with these issues. They're my 
responsibility. I've accepted responsibility for it. But the 
wonderful career people at the Department continue doing their 
job day in and day out, and justice is being served in this 
country.
    Senator Kohl. Thank you very much.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    Senator Hatch.
    Senator Hatch. Thank you, Mr. Chairman.
    Well, I want to make it clear that having gone there and 
one of the earliest ones to go there, I do not agree with 
closing Guantanamo. The big issue is, even if we did, what do 
we do with them? What is the alternative?
    I have heard a lot of the Senators around here bemoaning 
the fact they sure don't want these terrorists in their State. 
The fact of the matter is it is a separate place where they can 
be contained, and appropriately so.
    So I am opposed to closing Guantanamo. I think it is 
ridiculous. I think the arguments have been ridiculous. And I 
hope you will consider changing your mind on that because I 
just think it is wrong.
    But now, you may not have had--having said that, I just 
thought I would make that point.
    You may not have had a full opportunity to explain what 
happened the day of your hospital visit to Attorney General 
Ashcroft, so if you would, please finish your description of 
those events so we can all understand just what happened there.
    Attorney General Gonzales. The meeting that I was referring 
to occurred on the afternoon of March 10th, just hours before 
Andy Card and I went to the hospital. And the purpose of that 
meeting was to advise the Gang of Eight, the leadership of the 
Congress, that Mr. Comey had informed us that he would not 
approve the continuation of a very important intelligence 
activity despite the fact the Department had repeatedly 
approved those activities over a period of over 2 years.
    We informed the leadership that Mr. Comey felt the 
President did not have the authority to authorize these 
activities, and we were there asking for help, to ask for 
emergency legislation--
    Senator Hatch. Was Mr. Comey there during those 2 years?
    Attorney General Gonzales. He was not there during the 
entire time, no, sir.
    Senator Hatch. How much of that time?
    Attorney General Gonzales. I can't recall now, Senator, 
when Jim Comey became the Deputy Attorney General.
    The consensus in the room from the congressional leadership 
is that we should continue the activities, at least for now, 
despite the objections of Mr. Comey. There was also consensus 
that it would be very, very difficult to obtain legislation 
without compromising this program, but that we should look for 
a way ahead.
    It is for this reason that, within a matter of hours, Andy 
Card and I went to the hospital. We felt it important that the 
Attorney General knew about the views and the recommendations 
of the congressional leadership, that as a former Member of 
Congress and as someone who had authorized these activities for 
over 2 years, that it might be important for him to hear this 
information. That was the reason that Mr. Card and I went to 
the hospital. Obviously, we were concerned about the condition 
of General Ashcroft. We obviously knew that he had been ill and 
had had surgery, and we never had any intent to ask anything of 
him if we did not feel that he was competent.
    When we got there, I will just say that Mr. Ashcroft did 
most of the talking. We were there maybe 5 minutes, 5 to 6 
minutes. Mr. Ashcroft talked about the legal issue in a lucid 
form, as I have heard him talk about legal issues in the White 
House. But at the end of his description of the legal issues, 
he said, ``I'm not making this decision. The Deputy Attorney 
General is.''
    And so Andy Card and I thanked him. We told him that we 
would continue working with the Deputy Attorney General, and we 
left.
    And so I just wanted to put in context for this Committee 
and the American people why Mr. Card and I went. It's because 
we had an emergency meeting in the White House Situation Room 
where the congressional leadership had told us continue going 
forward with this very important intelligence activity.
    I might also add--
    Senator Hatch. That was the Gang of Eight, you are saying?
    Attorney General Gonzales. Pardon me?
    Senator Hatch. That was the Gang of Eight.
    Attorney General Gonzales. This was the Gang of Eight.
    Senator Hatch. The two leaders in the House, the two 
leaders in the Senate, the two leaders of the Intelligence 
Committee in the House, and the two leaders of the Intelligence 
Committee in the Senate, right?
    Attorney General Gonzales. That is correct. I might also 
add--
    Senator Hatch. Democrats and Republicans?
    Attorney General Gonzales. Democrats and Republicans. I 
might also add that the urgency was that the authorities in 
question were set to expire the very next day.
    Senator Hatch. Right.
    Attorney General Gonzales. And the President believed this 
was a very important activity, as did the congressional 
leadership. In fact, the very next morning, we had the Madrid 
bombings, and so that puts into perspective the context of the 
environment that we were operating under. And these are the 
reasons why we went to the hospital on the evening of March 
10th.
    Senator Hatch. Well, thank you, sir. The administration has 
made proposals to modernize FISA, of course, and is working 
with the Judiciary Committee to ensure that appropriate staff 
members have the necessary information about the terrorist 
surveillance plans of the administration. However, some members 
of the Committee have stated that they will not consider any 
legislation in this area until they receive additional 
information about the TSP.
    Now, I do find this logic somewhat questionable since this 
very Committee not only considered but passed three different 
bills dealing with FISA modernization during the last Congress.
    Now, how do you view the decision not to discuss FISA 
modernization? Of all issues, isn't this the one in which 
increased attention and expediency is paramount?
    Attorney General Gonzales. This is the most important 
legislative agenda item for the Department of Justice--FISA 
modernization. The threats exist against the United States, and 
we believe that FISA, while it has been a valuable tool, also 
has made it more difficult to engage in electronic surveillance 
of foreign targets overseas. We don't believe that was ever the 
intent of FISA. It's a policy question. The Congress has to 
decide that they want the Department and the Agency, NSA, the 
FBI, the Department of Justice, utilizing our resources, our 
agents, our analysts, our lawyers, in order to make a probable 
cause determination and then present it to a judge in 
connection with a foreign terrorist who's located outside the 
United States. Is that what the Congress wants us to do? 
Because if they do, we will continue to do it.
    But I think it's legitimate to ask: Is that the right 
policy for the United States today?
    Senator Hatch. You have been accused of wanting to install 
interim U.S. Attorneys to serve indefinitely without Senate 
confirmation. I do not think there has ever been any evidence 
for that, but then some accusations would be more useful than 
they are true.
    Since you were first asked about this more than a year and 
a half ago, you said that it is your intention to have a 
Senate-confirmed appointee to these positions. Now, I raise 
this point to point out that we continue to see nominations to 
the U.S. Attorney positions of men and women who have been 
serving in an interim capacity. This is exactly what you said 
the administration intended to do, if I recall it correctly. We 
have seen this recently in Nebraska, Puerto Rico, and 
elsewhere.
    Now, is that your continued commitment to have Senate-- 
confirmed U.S. Attorneys in each jurisdiction?
    Attorney General Gonzales. It is. I believe that a U.S. 
Attorney, quite frankly, is stronger in dealing with other law 
enforcement counterparts at the Federal, State, and local 
level. And it's also, I think, vitally important with respect 
to the Deputy Attorney General. We have, I think, a very strong 
interim--we will have soon a very strong interim Deputy 
Attorney General, but my intention and hope is that we have 
someone who is considered and confirmed by the Senate soon.
    Senator Hatch. Well, thank you.
    Thank you, Mr. Chairman.
    Chairman Leahy. Are you saying that the interim Attorney 
General who served as an interim U.S. Attorney in two different 
places, whose name was never sent up for confirmation that, 
that his name will now finally be sent up here for confirmation 
for something?
    Attorney General Gonzales. His name--well, I'm not saying 
that his name--his name--will be sent up for confirmation. 
After the White House has completed its very thorough 
background investigation and interviews of candidates, the 
intention is to send up someone for consideration by the Senate 
to confirm as the Deputy Attorney General.
    Chairman Leahy. He is interim, having been interim U.S. 
Attorney in two different jurisdictions.
    Attorney General Gonzales. He is the interim--he will be 
the interim as soon as Mr. McNulty leaves.
    Chairman Leahy. I thought I would ask. And you said that--
you spoke of how important it is to you to have this Committee 
look at updates for FISA. Have you ever taken even 30 seconds 
or a minute to call me and tell me that? I mean, I just heard 
this from you for the first time here. You know, I have a 
listed telephone number.
    Attorney General Gonzales. I am sorry. I lost my train of 
thinking.
    Chairman Leahy. You just said to Senator Hatch that it is 
extraordinarily important to you that this Committee consider 
updates on FISA laws. Have you ever said that to me? Have you 
ever picked up the phone and called me or told me that?
    Attorney General Gonzales. Senator, I would be surprised if 
that hasn't been communicated in a letter, and certainly it has 
been communicated to your staff in terms of the importance of 
FISA modernization.
    Chairman Leahy. I have a listed telephone number. Feel free 
to call anytime, if it is that important to you.
    Senator Feinstein?
    Senator Feinstein. Thank you very much, Mr. Chairman. Mr. 
Attorney General, I have sat here and listened particularly to 
the opening comments of the Chairman and the Ranking Member, 
and in my time in the Senate, I have never heard comments quite 
like that coming from both sides of the aisle. And then I 
listened to your response, which was nonresponsive, which went 
into something about FISA unrelated to anything that had been 
said.
    I do not think you understand what is happening in the 
Department of Justice--the diminution of credibility, 
integrity. It is almost as if the walls were actually crumbling 
on this huge Department. And I listened to you, and nothing 
gets answered directly. Everything is obfuscated.
    You cannot tell me that you went up to see Mr. Comey for 
any other reason other than to reverse his decision about the 
Terrorist Surveillance Program. That is clearly the only reason 
you would go to see the Attorney General in intensive care.
    Attorney General Gonzales. May I respond to that?
    Senator Feinstein. Yes, you may.
    Attorney General Gonzales. Okay. You're right. This is an 
extraordinary event. But we were confronting extraordinary 
circumstances where we had been advised that something the 
Department had authorized for 2 years, they would not longer 
continue to approve. We had just been advised by the 
congressional leadership go forward anyway, and we felt it 
important that the Attorney General, General Ashcroft, was 
aware of those facts.
    Clearly, if we had been confident and understood the facts 
and was inclined to do so, yes, we would have asked him to 
reverse the DAG's position. But--
    Senator Feinstein. Well, then, why would he have said Mr. 
Comey is in charge if you had not asked him?
    Attorney General Gonzales. I don't understand the question.
    Senator Feinstein. Well, clearly, you asked him the 
question because James Comey testified to us that--
    Attorney General Gonzales. My recollection, Senator, is--
and, of course, this happened some time ago and people's 
recollections are going to differ. My recollection is that Mr. 
Ashcroft did most of the talking. At the end, my recollection 
is he said, ``I have been told it would be improvident for me 
to sign, but that doesn't matter because I'm no longer the 
Attorney General.''
    Senator Feinstein. Okay. All right.
    Attorney General Gonzales. And once he said that-- 
Secretary Card and I did not press him. We said, ``Thank you,'' 
and we left. But, again, we went there because we thought it 
important for him to know where the congressional leadership 
was on this. We didn't know whether or not he knew of Mr. 
Comey's position, and if he did know, whether or not he agreed 
with it.
    Senator Feinstein. All right. I think we have taken care of 
this.
    What I would like to establish once and for all is who put 
the names on the list to fire what are now nine U.S. Attorneys. 
Since you were here last, we have had a number of your top 
staff appear before us.
    Kyle Sampson, your former Chief of Staff, said, ``I was the 
aggregator of input that came in from different sources.''
    Paul McNulty said, ``It was presented to me'' as here is 
the idea and here are the names of individuals that are being 
identified.
    Jim Comey said, ``I was not aware there was any kind of 
process going on.''
    Bill Mercer said, ``I didn't understand there was a list. I 
didn't keep a list.''
    Mike Battle: ``A decision was made to compile a list. It 
was made by someone. I had no input. Nobody asked for my 
input.''
    Will Moschella: ``Since I was not part of that process, I 
don't have firsthand knowledge.''
    Mike Elston: ``Kyle, asked me to give him my thoughts, give 
him a draft list. I said, `Sure.' I didn't actually do it. I 
was very busy.''
    Who approved those names?
    Attorney General Gonzales. I ultimately approved the list 
of recommendations that were submitted to me. I accept 
responsibility--
    Senator Feinstein. And how many names did you approve for 
firing?
    Attorney General Gonzales. I think on that list that was 
presented--
    Senator Feinstein. No, no. Total. How many names have you 
approved for firing?
    Attorney General Gonzales. You mean total? For cause? Not 
for cause? I'd have to get back to you on that.
    Senator Feinstein. There were seven on December 7th.
    Attorney General Gonzales. Seven on December 7th.
    Senator Feinstein. We are now up to nine that we know 
about. How many--this is important. How many U.S. Attorneys did 
you approve to be summarily fired?
    Attorney General Gonzales. Senator, there may have been 
other--I would be happy to get back to you with that kind of 
information about who has left. But I don't know the answer to 
your question. But I can certainly find out.
    Senator Feinstein. You don't know after all we have been 
through, hearing, after hearing, after hearing?
    Attorney General Gonzales. Well, in connection with this 
review process that Mr. Sampson was coordinating, what was 
presented to me was a list of seven individuals on December 
7th. And so those are the seven that I accepted the 
recommendation to ask for resignation.
    Senator Feinstein. Seven, that is right, but those were the 
ones that were called on December the 7th--
    Attorney General Gonzales. Yes.
    Senator Feinstein.--and told to leave by January 15th.
    Attorney General Gonzales. Yes.
    Senator Feinstein. There were others also asked to resign.
    Attorney General Gonzales. Yes.
    Senator Feinstein. I am asking what the total number was.
    Attorney General Gonzales. Well, certainly Mr. Cummins was 
asked to leave. Mr. Graves was asked to leave. I'm not aware, 
sitting here today, of any other U.S. Attorney who was asked to 
leave, except there were some instances where people were asked 
to leave, quite frankly, because there was legitimate cause.
    Senator Feinstein. So you are saying these were asked to 
leave because the cause was not legitimate?
    Attorney General Gonzales. I'm not--no. What I'm saying is 
wrongdoing, misconduct. There may have been some-- in fact, I'm 
sure there were others--
    Senator Feinstein. What kind of misconduct?
    Attorney General Gonzales. Well, and I am not suggesting 
any of this conduct happened but, for example, an inappropriate 
relationship, taking action where you have a direct conflict of 
interest to help out a buddy, making a-- you know, those 
kinds--something like that I would say would constitute 
misconduct. And there--
    Senator Feinstein. Were those specific things involved in 
any U.S. Attorney that was terminated?
    Attorney General Gonzales. No. With respect to the seven 
and with respect to Mr. Cummins and with respect to Mr. Graves, 
I am not aware that--certainly there was in my mind a problem 
or basis to accept the recommendation that they be asked to 
leave.
    Senator Feinstein. All right. Let me go to something else. 
You, of course, recognize these books, ``The Federal 
Prosecution of Election Offenses.'' In prior hearings we had 
the 1995 edition. Since May of this year, there is now a new 
edition. I would like to read to you what has been dropped from 
the earlier edition.
    The first thing that has been removed is this: ``The 
Justice Department generally does not favor prosecution of 
isolated fraudulent voting transactions. This is based in part 
on constitutional issues that arise when Federal jurisdiction 
is asserted in matters having only a minimal impact on the 
integrity of the voting process.''
    This was removed in this new edition.
    The second thing: ``The Justice Department must refrain 
from any conduct which has the possibility of affecting the 
election itself.'' This is weakened on page 92.
    This language is removed: ``Federal prosecutors and 
investigators should be extremely careful to not conduct overt 
investigations during the pre-election period or while the 
election is underway.'' Removed.
    Then a sentence that is underlined in the 1995 edition, 
which states, ``Thus, most, if not all, investigations of an 
alleged election crime must await the end of the election to 
which the allegation relates,'' was removed in this new 
edition.
    Weakened was this language: ``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.''
    Why was it necessary to remove this language in this new 
edition of the ``Federal Prosecution of Election Offenses'' 
rules?
    Attorney General Gonzales. Senator, I don't--sitting here 
today, I don't know the answer to that question. I would like 
to find out because I am certainly committed to ensuring that 
we're smart in the way that we do investigations and 
prosecutions and we do so in a way that doesn't intimidate 
voters, that doesn't chill potential voters from coming out and 
voting on election day. So I would like the opportunity to look 
into this and respond back to you.
    Senator Feinstein. I would appreciate it. It becomes more 
relevant because two and possibly three of the fired U.S. 
Attorneys were fired because they did not bring those small 
cases that might affect an election. And, therefore, when one 
looks at this book now, sees the new book coming out in May 
2007 that deletes the very things that these U.S. Attorneys 
were told to follow, something is rotten in Denmark.
    Attorney General Gonzales. Thank you for the opportunity 
for me to look into that.
    Senator Feinstein. I appreciate that. Thank you very much. 
My time is up.
    Chairman Leahy. Thank you. Thank you very much, Senator 
Feinstein.
    Senator Kyl.
    Senator Kyl. Thank you, Mr. Chairman.
    Mr. Attorney General, as I understand it--and I am going to 
ask you to correct me if I am wrong, to your knowledge--the 
administration position on Guantanamo Bay is that while it 
would be nice if we did not have the need for it and we would 
like to be able to close it, we cannot because the terrorists 
who represent a threat to the United States need to be held 
somewhere, and there are no better alternatives. Almost nobody 
wants them in the United States. You cannot just let them go. 
Sending them to foreign countries is problematic, among other 
reasons for the reasons you discussed. Is that your 
understanding? And if not, what is your understanding?
    Attorney General Gonzales. Yes.
    Senator Kyl. Do you have any different reasons for desiring 
to close Gitmo, for example, because--to your knowledge or 
suspicion, is there anything going on down there that might be 
a violation of either U.S. law or applicable treaties or 
conventions?
    Attorney General Gonzales. Quite the contrary. I think the 
people who've gone down there, from this body, from the House, 
other countries, have come away favorably impressed with what's 
going on down there.
    Senator Kyl. I just want to associate myself with the 
remarks of Senator Hatch. It would be nice if we did not have 
to have any prisons, for that matter, and it would certainly be 
good if we did not have to have a place for these threats to 
America. But they do have to be held somewhere, and I know of 
no better alternative than where they are being held right now.
    Let me ask you this question about a matter that you know I 
am very interested in, and as a matter of fact, in a related, 
potentially related matter, there is a scandal now brewing with 
regard to the National Basketball Association.
    Sports entities--in particular, the NFL, Major League 
Baseball, basketball, the NCAA, amateur athletics--have for a 
long time been concerned about Internet betting, which is 
illegal under most State laws, and we have our Federal laws as 
well. You are aware that on October 13th the President signed 
into law the Unlawful Internet Gambling Enforcement Act to 
augment enforcement efforts by targeting offshore gambling 
operations that are not readily subject to U.S. prosecution. 
There are additional existing laws--the Federal Wire Act and 
money-laundering laws--that can be and have been used to go 
after these Internet gambling operators.
    I realize that you cannot comment on any existing cases, 
but I would like for you to just express to the Committee 
generally what your views are with respect to the Department's 
contentions with respect to going after these illegal Internet 
gambling operations.
    Attorney General Gonzales. Thank you, Senator. I appreciate 
your leadership on this issue. We do believe it is a serious 
issue because, you talk about Internet gambling, it is highly 
addictive. Quite frankly, I think it affects our youth. I think 
it can be tied to money laundering and fraud. And we think it 
is tied to organized crime.
    There are existing laws on the books, and we intend to and 
do enforce those laws. There are challenges because of the 
existing laws, challenges because much of the time the evidence 
is offshore. We may have difficulty getting the evidence. Also 
because it involves another country, there are sometimes 
serious issues of extradition.
    So we appreciate the additional tools of the Unlawful 
Internet Gambling Act, which bans certain financial payments to 
support Internet gambling, and as you know, Treasury and the 
Federal Reserve have primary responsibility for the issuance of 
these regulations after consulting with the Department of 
Justice. We have provided input, and so my understanding is 
that those regs are moving forward.
    Senator Kyl. The proposed regs have been made public. My 
question really was a broader one. You have engaged in 
prosecutions under other laws as well, and I was simply giving 
you an opportunity to express your intentions to continue to 
enforce all of these laws to the extent that they need to be 
enforced.
    Attorney General Gonzales. We certainly intend to do that. 
You have my commitment, Senator.
    Senator Kyl. Incidentally, I may have not been clear in my 
reference to the NBA. I am not suggesting that there is 
evidence of illegal Internet gambling with respect to that, but 
I simply wanted to point out that these sports depend on the 
public's view that they are unadulterated, that they are clean, 
that they are not being affected by illegal forces. And that is 
why they are so supportive of this legislation to make sure 
that illegal Internet gambling does not in any way intrude into 
those sports. And I think Americans have a right to have that 
assurance.
    Mr. Attorney General, the FBI is facing a mounting caseload 
of applications from foreign nationals seeking to enter the 
United States or to adjust status. The FBI, of course, does 
background checks, but there is a huge backlog, as you know.
    What technologies or resources can Congress secure for the 
FBI to ensure that it is able to timely process applications 
without compromising the safety and security of the American 
people?
    Attorney General Gonzales. This is a problem that I have 
discussed with the Director. You are talking about background 
checks, individuals from other countries. It does take us a 
long time in some cases because of the fact it requires us to 
get information and records from other countries. I know that 
the Director is focused on trying to get additional resources, 
additional individuals, maybe contract work out to help in this 
endeavor. And so he is also looking at new computer system 
technology, taking advantage of technology--
    Senator Kyl. Let me just interrupt here because of the 
time. There is a huge backlog. It should not exist. Do we--
Congress--need to provide additional resources?
    Attorney General Gonzales. I don't know whether or not 
additional resources are required from the Congress. I do know 
that additional resources within the Bureau have to be focused 
on this issue, and it may be--you know, the Director may come 
to me and say, ``Well, if we do that, we are not going to be 
able to protect America from terrorism the way we ought to be 
in other areas.''
    And so I don't know the answer to that, but certainly more 
resources are necessary. We may already have the resources 
within the Bureau. I suspect that the Director will say no.
    Senator Kyl. We need to know if there is something else we 
can do because you cannot compromise security and we cannot 
tolerate the long backlogs that currently exist. So something 
needs to give here, and if it is that we need more resources, 
Congress needs to be advised.
    Let me quickly, while I have just a second, ask one final 
question. U.S. Customs and Border Protection at DHS reports 
that 16 percent of foreign nationals apprehended illegally 
crossing the Southern border have criminal histories. That is 
about 140,000 individuals in the year 2005. And if that is not 
alarming enough, DOJ and the GAO indicate that criminal aliens 
in the U.S. are rearrested on an average of six to eight times 
per offender, which puts a huge strain on both Federal, State, 
and local law enforcement officers, prosecutors, courts, and 
our jails.
    Is the Department of Justice undertaking any initiatives 
with DHS to proactively identify and prosecute and remove 
criminal aliens? And here again, is there any authority or 
resource that Congress needs to provide to DOJ to assist in the 
prosecution of these criminal aliens?
    Attorney General Gonzales. I think, quite candidly, 
Senator, if you were to talk to my border U.S. Attorneys, they 
would say, ``We need more resources,'' and so we are always 
looking at ways to try to find those resources within the 
existing budget. Obviously, the President has to consider a 
number of priorities with respect to the budget that he submits 
to the Congress, and the Congress, of course, ultimately makes 
the decisions as to where those priorities should come out.
    But we are having to be smart. We are trying to be more 
efficient. But it does present--or it has presented some 
challenges for us.
    Senator Kyl. Mr. Chairman, if I can just do one follow-up 
question?
    Chairman Leahy. Go ahead.
    Senator Kyl. In effect, are you saying you understand the 
President's budget priorities and needs all across the 
Government, but if more resources could be made available to 
you, you could certainly take advantage of them, you could 
certainly use them?
    Attorney General Gonzales. We certainly would put them to 
good use.
    Chairman Leahy. Of course, you are also aware that the 
President said if we put any money in there beyond what he has 
asked for, he will veto the bill.
    Senator Cardin.
    Senator Cardin. Thank you very much, Mr. Chairman.
    Attorney General Gonzales, I want to return to the U.S. 
Attorney issue because I think there is a great deal of concern 
and a lot of questions that have not been answered, and I want 
to give you a chance to do that.
    You have offered conflicting testimonies as to who is 
responsible for the firing of the U.S. Attorneys. We still do 
not know. And Senator Feinstein's questions really were not 
answered. We do not know who was responsible for a particular 
name ending up being fired. So let me just go over the U.S. 
Attorneys who were fired, and the concern that I think 
Americans have that your commitment to make sure the Department 
of Justice is not politicized is exactly what happened with the 
U.S. Attorneys that were fired.
    Mr. Iglesias was involved in New Mexico as U.S. Attorney in 
investigating certain Democrats. The prominent Republicans were 
very unhappy with the timing of that investigation, which I 
think has now become public. So there was a concern that the 
U.S. Attorney was not doing what the local political 
establishment, Republican establishment, wanted.
    In Nevada, there was an investigation of the Republican 
Governor by the U.S. Attorney, which certainly did not make the 
local political establishment happy.
    In Arizona, there was an investigation of two Republican 
Members of Congress, which was not happy with the local 
Republican establishment in Arizona.
    In Arkansas, there was an investigation by Mr. Cummins in 
regards to a Republican Governor that was creating a lot of 
controversy.
    In California, with Ms. Lam, there was the indictment and 
conviction of Duke Cunningham, but then the expansion of that 
investigation, which had Republicans concerned.
    In Washington, the U.S. Attorney declined to intervene in a 
disputed gubernatorial election, which angered the local 
Republican establishment.
    And then, of course, Mr. Graves in Missouri, we have 
already talked about the voter fraud investigations and the 
fact that the local political establishment was unhappy with 
that.
    Here we have an unprecedented removal of U.S. Attorneys 
without a change in party in the White House, and we look at 
those who were removed and find in almost all cases they were 
involved in highly visible political issues that were unpopular 
to the Republican establishment. What is one to think? And we 
do not have the answers from the White House, we do not have 
the answers from you, and we are having a very difficult time 
getting the information without the assertion of executive 
privilege.
    So where do we go in our--what comfort can you give me 
that, in fact, these U.S. Attorneys were fired for legitimate 
reasons and not because of political considerations, which all 
of us agree would be outrageous and wrong, if not illegal?
    Attorney General Gonzales. Well, Senator, I have already 
said repeatedly that I did not accept these recommendations 
with the understanding that this was to punish or interfere 
with an investigation for purely partisan reasons. I accept 
responsibility for this. Senator Feinstein asked me who put the 
names on the list. Quite frankly, I am assuming this Committee 
has talked to everyone involved in putting those names on the 
list and has asked that question.
    Senator Cardin. We have not talked to the people in the 
White House.
    Attorney General Gonzales. I did not put the names on the 
list. I accepted the recommendations. There were some names on 
the list, the recommendations made to me, that did not surprise 
me based upon my--what I had heard of performance during my 
tenure as Attorney General. But no one as far as I know placed 
anyone on the list. I certainly did not accept the 
recommendation in order to punish someone because they--
    Senator Cardin. But you do not know who put the names on 
the list. At least I have not quite figured out who put the 
names on the list.
    Attorney General Gonzales. That is correct.
    Senator Cardin. So how do you know someone didn't put the 
names on the list because of partisan political considerations.
    Attorney General Gonzales. Based on what I know, Senator, 
that--that is what I know. You have had the opportunity, I 
think, to talk to everyone involved and ask questions involved, 
more so than I. The Office of Inspector General and OPR, 
they're doing an investigation as well to try to find out 
exactly how these names got on the list.
    Senator Cardin. Let me move on to a second issue that 
troubles me from your testimony today, and that is, you have 
talked about your visit to the hospital, the preliminary 
meetings with the leadership in Congress. Those meetings are 
not public meetings, are they?
    Attorney General Gonzales. Well, which meetings? With 
Congress?
    Senator Cardin. With the Gang of Eight.
    Attorney General Gonzales. Well, I'm not sure--I'm not sure 
that this meeting has been talked about, although I'm told this 
meeting has been--information about the existence of this 
meeting has been transmitted to the Congress, I think, in a 
communication from the administration.
    Senator Cardin. When you briefed the leadership of Congress 
and the leadership on the Intelligence Committee, are those 
briefings done in open session? When you seek their advice, are 
they in open session?
    Attorney General Gonzales. No.
    Senator Cardin. And are those proceedings kept 
confidential?
    Attorney General Gonzales. In most cases, yes.
    Senator Cardin. And the advice that the Congress gives you 
at those meetings is not released or made public?
    Attorney General Gonzales. In cases that is true.
    Senator Cardin. And I would just suggest to you, to the 
extent that there is importance of confidence in working with 
the congressional leadership, the President's using the 
executive privilege to not make information available to 
Congress, it seems to me that you are being very selective in 
what information you are making available publicly.
    Attorney General Gonzales. Senator, I believe it's 
important, when people question and wonder what in the world 
were Andy Card and I doing going to the hospital, that it be 
placed in the appropriate context.
    Senator Cardin. You are exactly right, and we want the 
appropriate context of the firing of the U.S. Attorneys. We are 
entitled--we have a responsibility to get that information. And 
the White House, when Sara Taylor testified, she was very clear 
about being able to give information that was self-serving to 
the White House. But when we are trying to get independent 
information, we cannot get it. Do you understand our 
frustration?
    Attorney General Gonzales. I do understand your 
frustration.
    Senator Cardin. I have only a few seconds left, and I want 
to make sure I cover this last point, which is the hiring in 
the U.S. Attorney's Office. I very much appreciate your 
statement in your prepared testimony where you say, ``There is 
no place for political considerations in the hiring of our 
career employees or in the administration of justice.'' You 
further assert that you plan to ``remain in office to fix the 
problem.'' I am pleased that you acknowledge a problem.
    We had a hearing in the Judiciary Committee with the Civil 
Rights Division in which the way career attorneys are now hired 
has been changed. It used to be that there were career 
attorneys that reviewed those applications and made 
recommendations for the hiring of U.S. Attorneys for the Civil 
Rights Division. That was taken over by political appointees. I 
hope in your efforts to fix the problem that you will go back 
to a nonpartisan environment for selecting the career attorneys 
in the Department of Justice. We have had testimony here from 
Monica Goodling and others about White House interference or 
political interference that crosses the line. And I hope that 
as part of your efforts to fix the problem you will remove the 
political appointees from making certain recommendations or 
standards on bringing in career attorneys or firing or removing 
or repositioning career attorneys.
    Attorney General Gonzales. Thank you, Senator. I think we 
have taken those kinds of steps.
    Senator Cardin. Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    Senator Grassley was actually the first one here, but he 
is, like all of us, juggling more than one Committee 
assignment. I will recognize him now.
    Senator Grassley. Thank you. I was sharing my time with the 
Finance Committee.
    Mr. Chairman, I have a list of outstanding requests for 
documents and information from the FBI, and I am going to ask 
that this be put in the record, and I am going to refer to it.
    Chairman Leahy. Without objection, all the material will be 
part of the record. Also without objection, opening statements 
by various Senators who have asked be put in the record will be 
placed in the record as though read.
    Senator Grassley. Thank you.
    Mr. Attorney General, the requests for documents and 
information relate to the oversight involving Special Agent 
Jane Turner, Special Agent Cecelia Woods, the Amerithrax 
investigation, and e-mails relating to exigent letters that 
were detailed in the National Security Letters Report. I 
continue to wait for these responses, some of them months 
overdue, and as the FBI is a component of the Department of 
Justice and I am doing it here at this hearing, I ask if you 
would personally ensure the prompt delivery of all information 
requested.
    Attorney General Gonzales. I will personally assure you the 
prompt delivery of the appropriate information requested.
    Senator Grassley. I want to refer to the False Claims Act 
and its use in Iraq contracting. I am referring to the Boston 
Globe, June 20, 2007, article entitled ``Justice Department 
Opts Out of Whistleblower Suits; Cases Allege Fraud in Iraq 
Contract.'' The article noted that the Department declined to 
intervene in ten False Claims Act whistleblower cases, raising 
allegations of fraud, waste, and abuse in contracts during 
reconstruction in Iraq. Further, the article states that the 
Department has only reached two civil settlements with 
contractors in Iraq totaling $6.1 million.
    Congress has appropriated hundreds of billions of dollars 
to fund our troops and to support contractors as well as 
reconstruction projects. So I find it hard to believe that only 
$6.1 million has been lost to fraud and abuse by Government 
contractors. For instance, in Government programs such as 
Medicaid, we know that fraud in the program is around 5 
percent, maybe higher. It is hard to imagine that fraud in Iraq 
would be less, but I will leave the numbers to experts.
    In addition, on April 19, 2006, a Wall Street Journal 
article quoted critics of the Department as saying, ``The 
current administration's use of judicial seal of False Claims 
Act cases is unprecedented. Its critics argue that the 
Department is using the judicial seal as a means to mask the 
true extent of possible fraud in Iraq.''
    So, General Gonzales, how many--I want to ask--well, let me 
ask a couple questions at a time. I have got six questions in 
this series. How many False Claims Act cases alleging fraud in 
Iraq has the Department joined since 2003?
    Attorney General Gonzales. I think the answer to that--I 
think there are 26, but I would like the opportunity to confirm 
that, if I can. I think that is in the neighborhood.
    Senator Grassley. Okay. Is the Boston Globe article 
accurate in stating that the Department has declined 
intervention in ten false claims cases alleging contract fraud 
in Iraq? And if so, why?
    Attorney General Gonzales. I don't know if that number is 
correct, but I will tell you, of course, the fact that we 
decline doesn't mean that we don't follow the case. We still 
remain a real party in interest, and so we closely monitor 
these cases. And we may decide to intervene at a later point in 
time. We may decide to file an amicus to protect the interests 
of the United States. And so the fact that we have declined 
doesn't mean that we're not going to get involved in any way 
going forward.
    Senator Grassley. Well, for the public and Chuck Grassley, 
it seems to me that declination of intervention does signal an 
unwillingness to pursue Iraq contracting fraud cases.
    Attorney General Gonzales. No. What it means is that we 
have to look at the cases and decide really is there now at 
this time a judgment that we can prosecute these cases. We have 
been very, very successful in those cases where we decide to 
join because we evaluate the cases carefully and we think, 
Okay, there's something there, we can win this case.
    In those cases where we don't join, the relater doesn't 
fare nearly as well because they are taking on cases that are 
very, very difficult, and they can't prove them.
    And so we are trying to be smart in utilizing the resources 
that we have and prosecuting those cases where we think, you 
know, the evidence will support the charge.
    Senator Grassley. Are there currently any FCA cases under 
seal relating to Iraq fraud contracting?
    Attorney General Gonzales. I believe the answer to that is 
yes, because, again, these are difficult cases and it takes us 
a period of time--sometimes people would argue too long--to 
decide whether or not we are going to intervene and join the 
case.
    Senator Grassley. Let me ask you last on this point: How do 
you respond to the criticism outlined in the Wall Street 
Journal article? Is the Department trying to escape 
accountability by using the seal as a shield? That is what was 
stated.
    Attorney General Gonzales. No. Far from it. In fact, we 
want to expose fraud and mismanagement and waste, quite 
frankly, I think, and we have a special obligation at the 
Department, if people are going to contract with the United 
States, they ought to be held to the highest standard. And so, 
again, we use it as a way to protect the interests of the 
United States in litigation.
    Senator Grassley. I want to go to the United State DRC, 
Inc. v. Custer Battles. February 17, 2005, I wrote you 
regarding this case urging that the Department comply with a 
request of a district judge to file a brief on the issue of 
whether the Coalition Provisional Authority--I am going to 
refer to that as ``CPA''--was a Government entity under the 
False Claims Act. On April 1, 2005, the Department filed a 
brief stating the Government's position that knowingly false 
claims presented to the CPA by Custer Battles, if proven, would 
violate the False Claims Act. The Department also stated that, 
notwithstanding the brief, they declined to intervene with the 
whistleblowers.
    Ultimately, the jury found Custer Battles violated the FCA 
and should return $10 million to the U.S. Government. However, 
the judge overturned the verdict and dismissed the case, 
finding that the plaintiffs failed to prove the false claims 
were actually submitted to the Government. The Department has 
filed a brief supporting the whistleblowers' position on appeal 
to the Fourth Circuit.
    Why did the Department decline to intervene in district 
court yet continue to support the appellate litigation? And, 
last, is the Department concerned that failing to intervene at 
an earlier time may lead to decisions that are detrimental to 
the False Claims Act?
    Attorney General Gonzales. It is a pending case, Senator, 
so I am limited about what I can say. But going back to a 
response to an earlier question, the fact that we don't 
intervene at the initial stage doesn't mean that we don't 
follow the case. And we do have the opportunity, like we see in 
this case, of filing an amicus in the Fourth Circuit in order 
to protect the interests of the United States. And so, clearly, 
when we make a decision not to intervene, that doesn't mean 
that the interests of the United States are going to be 
jeopardized downstream. We do have the opportunity to file 
something to ensure that the interests of the United States are 
protected. As to the individual decision as to why we didn't 
get involved in the case in the first place, I don't have that 
answer to you, but I would be happy to go back and look at it. 
If there's something we can provide to you, I'd be happy to do 
so.
    Senator Grassley. I would like to have you provide that in 
writing.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much.
    The Attorney General has asked if we might take a brief 
break, and I should have asked that before. But, yes, we will 
stand in recess briefly.
    Attorney General Gonzales. Thank you, Mr. Chairman.
    [Audience comments.]
    Chairman Leahy. You know, we are going to have quiet in 
this Committee room. We are also going to--we are also going to 
have people stop blocking others who are here, and in one 
instance, I have been told of a person who was here was 
harassed because somebody else wanted her seat. There will be 
none of that, or I will have the police remove those doing it. 
I just want to make it clear.
    [Recess from 11:09 a.m. to 11:20 a.m.]
    Chairman Leahy. I have been advised that the vote 
originally scheduled on the Senate floor will be somewhat 
later, probably in about an hour. There will be a couple votes. 
I am hoping we can finish the first round before then.
    Senator Whitehouse, you are now recognized.
    Senator Whitehouse. Thank you, Mr. Chairman.
    Mr. Gonzales, just before our little break, you indicated 
in describing your reason for visiting the stricken Attorney 
General in his hospital room was to alert him to the change in 
the Department of Justice view of the program at issue. And you 
testified that Attorney General Ashcroft--and these are the 
words that I wrote down-- ``authorized these activities for 
over 2 years.''
    Is it your testimony under oath that Attorney General 
Ashcroft was read into and authorized the program at issue for 
2 years prior to your visit to him in that hospital?
    Attorney General Gonzales. I want to be very careful here 
because it is fairly complicated. What I can say is I am 
referring to intelligence activities that existed for a period 
of over 2 years, and what we were asking the Department of 
Justice to do was--which they had approved, and what we--
    Senator Whitehouse. They had approved, I guess is the point 
that I am getting at.
    Attorney General Gonzales. General Ashcroft, yes.
    Senator Whitehouse. You said that Attorney General Ashcroft 
had authorized this program for over 2 years prior to that day.
    Attorney General Gonzales. General Ashcroft had authorized 
these very important intelligence activities for a period of 2 
years. We had gone to the Deputy Attorney General and asked him 
to reauthorize these same activities. But there are facts 
here--and I want to be fair to everyone involved. They're 
complicated, and we have had discussions in the Intel 
Committees about this issue, trying to be as forthcoming as we 
can.
    Let me just say I believe everyone acted in good faith 
here. All the lawyers worked as hard as they could to try to 
find a way forward, the right solution. But, yes, I mean, the 
view was that these activities had been authorized. We 
informed--
    Senator Whitehouse. By Attorney General Ashcroft himself.
    Attorney General Gonzales. By Attorney General Ashcroft. 
But there are additional facts here that--I want to be fair and 
it's complicated. But--
    Senator Whitehouse. I am just trying to nail that one fact 
down. I'm not trying to go into--
    Attorney General Gonzales. Well, I am not sure I can give 
you complete comfort--I'm not sure I want to give you complete 
comfort on that point out of fairness to others involved in 
what happened here. I want to be very fair to them. But what we 
were talking about--
    Senator Whitehouse. It is a different question--
    Chairman Leahy. Well, why not just be fair to the truth. 
Just be fair to the truth and answer the question.
    [Applause.]
    Senator Whitehouse. Was Attorney General Ashcroft read into 
and did he approve the program at issue from its inception?
    Attorney General Gonzales. General Ashcroft was read into 
these activities and did approve these activities--
    Senator Whitehouse. Beginning when?
    Attorney General Gonzales. From the very beginning. I 
believe from the very beginning.
    Senator Whitehouse. All right.
    Attorney General Gonzales. But--well--
    Senator Whitehouse. That is all right.
    Attorney General Gonzales. Again, it is very complicated.
    Senator Whitehouse. My question has been answered.
    Attorney General Gonzales. And I want to be fair to General 
Ashcroft and others involved in this, and it's hard--it's hard 
to describe this in this open setting. We've tried to be--we've 
tried to--we have discussed it in the Intel Committees in terms 
of exactly what happened here. But I can't--I can't get into 
some fine details, quite frankly, because I want to be fair to 
General Ashcroft.
    Senator Whitehouse. And I think it is also important that 
people know whether or not a program was run with or without 
the approval of the Department of Justice, but without the 
knowledge and approval of the Attorney General of the United 
States, if that was ever the case.
    Attorney General Gonzales. We believe we had the approval 
of the Attorney General of the United States for a period of 2 
years. That is--
    Senator Whitehouse. For a period of 2 years? Also from the 
inception of the program?
    Attorney General Gonzales. From the inception, we believed 
that we had the approval of the Attorney General of the United 
States for these activities, these particular activities.
    Senator Whitehouse. Would that be reflected in any 
document?
    Attorney General Gonzales. Yes, it would.
    Senator Whitehouse. We will pursue the document later. When 
you went into the Attorney General's room at the hospital that 
night, what document did you have in your hand?
    Attorney General Gonzales. I had in my possession a 
document to reauthorize the program.
    Senator Whitehouse. Where is it now?
    Attorney General Gonzales. I'm assuming the document is at 
the White House. It was a White House document.
    Senator Whitehouse. And it would be covered by Presidential 
Records laws?
    Attorney General Gonzales. It is a White House document.
    Senator Whitehouse. Director Mueller was involved that 
evening. Do you consider Director Mueller to be reasonable, 
sober, and levelheaded?
    Attorney General Gonzales. Yes.
    Senator Whitehouse. He is a former Deputy Attorney General, 
former United States Attorney?
    Attorney General Gonzales. Yes.
    Senator Whitehouse. Why would he tell FBI agents not to 
allow you and Andy Card to throw the Acting Attorney General 
out of the Attorney General's hospital room?
    Attorney General Gonzales. I don't know that he did that, 
and I have no way--I can't respond to your question. I'm not 
Director Mueller.
    Senator Whitehouse. We have direct testimony that he did. 
Is there any series of events that led up to this that would so 
provoke him as to--
    Attorney General Gonzales. I wasn't aware of that comment 
until I read Mr. Comey's testimony.
    Senator Whitehouse. Is there some background to this that 
would help elaborate why he would have that feeling? I mean, 
when the FBI Director considers you so nefarious that FBI 
agents had to be ordered not to leave you alone with the 
stricken Attorney General, that is a fairly serious challenge.
    Attorney General Gonzales. Well, again, I'm not sure that 
the Director knew at the time of the meeting and the 
conversation that we had had with congressional leaders. Again, 
we were there following an emergency meeting in the White House 
Situation Room with the Gang of Eight, who said despite the 
recommendation of the Deputy Attorney General, go forward with 
these very important intelligence activities for now, and we 
will see about moving forward with some legislation. And that 
was important information that led us to go to the hospital 
room. The Director, I am quite confident, did not have that 
information, when he made those statements, if he made those 
statements.
    Senator Whitehouse. Is it awkward to supervise the FBI 
after this piece of history has come out that the Director 
didn't feel comfortable leaving you alone with the stricken 
Attorney General?
    Attorney General Gonzales. I can't speak for the Director's 
feelings about me, but I certainly have a great deal of 
confidence and admiration and respect for Bob Mueller.
    Senator Whitehouse. A separate topic. Will you allow the 
White House to direct United States Attorneys how to conduct 
litigation to which the White House is itself a party?
    Attorney General Gonzales. Would I?
    Senator Whitehouse. Would you allow the White House to 
direct United States Attorneys how to conduct litigation to 
which the White House is a party?
    Attorney General Gonzales. I don't believe so. Again, 
you're asking me a hypothetical, but my reaction to that is no.
    Senator Whitehouse. Is there any matter--any matter that 
the Department of Justice is involved in--in which you would 
allow the Department of Justice to agree to the investigative 
terms set by the White House for this Committee: no transcript, 
closed-door interviews, one round of questions only, and then 
nevermore? Is there any matter in the Department's jurisdiction 
where you would allow your lawyers to subject themselves to 
that kind of a restriction in doing their duties?
    Attorney General Gonzales. You know I can't answer that 
question. I don't know. There may be a matter, but I don't 
know. I don't know.
    Senator Whitehouse. Can you think of one?
    Attorney General Gonzales. Again, I mean, I could probably 
think of one, so--
    Senator Whitehouse. Where you would allow your lawyers to 
be subject to those restrictions?
    Attorney General Gonzales. Senator, again, you're asking me 
is it possible. I'd say virtually anything is possible. But, 
obviously, that's something that we'd have to look at.
    Senator Whitehouse. My time has expired, Mr. Chairman.
    Chairman Leahy. Thank you very much, Senator Whitehouse.
    Senator Sessions.
    Senator Sessions. Thank you, Mr. Chairman.
    Mr. Attorney General, on the question Senator Feinstein 
asked you about the voting rights change, some of those are 
probably changes that needed to be done, but they are very 
significant--I would say ``controversial,'' within the group of 
people that practice in that area of the law. I am curious as 
to your statement saying that you were not aware of that. As to 
those policies, who signs off on that? And who approved a 
policy that significantly, at least in certain specific areas, 
alters the policies of the Department of Justice if you don't?
    Attorney General Gonzales. It would be the Deputy Attorney 
General, who is the chief operating officer of the Department. 
And so in some certain cases, it would be certain policies that 
would be adopted by the Deputy Attorney General. In other 
cases, depending on what we're talking about, it would be 
something that I would approve of.
    Senator Sessions. Is that policy for the Voting Rights 
Section of the Department of Justice something you have 
delegated to the Deputy Attorney General?
    Attorney General Gonzales. I can't answer that question, 
Senator, but I would be happy to give you that answer.
    Senator Sessions. Well, I think it is something the 
Attorney General should do. I think that is a significant 
policy. There are certain responsibilities that I think you 
have, and to set major policy positions ultimately should be 
your responsibility.
    Attorney General Gonzales. And I believe that that would be 
my responsibility, but I just want to confirm that with you.
    Senator Sessions. Mr. Attorney General, with regard to some 
of the immigration questions that we are facing, there are so 
many matters that are within the jurisdiction of the Department 
of Justice. The effectiveness of our immigration enforcement 
policies depend on good policies within the Department of 
Justice. And I was recently reminded of a serious problem we 
have with regard to aliens who have been convicted of crimes in 
the United States. Mr. Harvey Lappins, Director of the Federal 
Bureau of Prisons, recently told us in this Committee--within 
the last year, I believe-- that 27 percent of the Federal 
prison population is foreign born.
    We have laws that I think authorize the removal from our 
country of persons who are convicted of crimes immediately upon 
the completion of their sentence, as I recall the statutes. I 
would note the article by Michelle Malkin quoting some of the 
examples we have had here where Mr. Adhan was convicted of--was 
relating to his involvement in the kidnapping and murder of 12-
year-old Zina Linnik in Tacoma, Washington, on July 4th. He had 
been convicted apparently of incest in 1990 and had sexually 
assaulted his 16-year-old relative, got that pleaded down to 
second-degree rape. Two years later, he was convicted of 
intimidation with a dangerous weapon, and the law calls for--
says that anyone convicted of a weapon offense is deportable. 
But he was not deported, and that is how apparently this murder 
occurred.
    Another instance was Mwenda Murithi, arrested 27 times 
without deportation before being arrested in the shooting death 
of a 13-year-old innocent bystander, Schanna Gayden, last month 
in Illinois.
    So I guess I am asking you about this whole policy, whether 
or not you have taken a lead to see that it is carried out. Do 
you believe it should be systematically and regularly carried 
out? And if there are any statutory weaknesses, do you have any 
suggestions about how they should be improved?
    Attorney General Gonzales. I think it should be carried 
out. I am aware that probably the level of cooperation that 
exists between the Department and DHS on this issue is not as 
good as it should be, Senator. What I would like to do is have 
the opportunity to maybe have a conversation with Secretary 
Chertoff to see whether or not we can do something to improve 
the situation. Legislation may not be necessary, but obviously 
it may turn out to be the case that we may need to have some 
help from the Congress.
    Senator Sessions. Well, as I understand, the Department of 
Homeland Security IG estimated last year that half of the 
650,000 foreign-born inmates in prisons and jails won't be 
removed because they say that it ``does not have the resources 
to identify, detain, and remove them.'' Is that true?
    Attorney General Gonzales. I've heard that as a possible 
complaint or challenge. That very well may be the case. Again, 
what I'd like to do is have the opportunity to sit down with 
Secretary Chertoff. I have not spoken with the Secretary about 
this particular issue. I would be happy to do so, and if there 
is something that would be helpful for the Congress, I would 
like to have the opportunity to talk to you about it.
    Senator Sessions. Well, I hope that you would because I 
think that is a major issue here. People are concerned when we 
pass laws in Congress and then law enforcement officials do not 
enforce them and don't execute them and leaving criminals in 
the United States in large numbers.
    I understand there are a number of prisons that do not 
participate in the institutional removal program. Do you think 
it would be beneficial to expand this program to all Federal 
prisons?
    Attorney General Gonzales. I can see very good arguments 
why that would make sense, and I plan on speaking with Harvey 
Lappins, the Director, and seeing what the status is and the 
challenges that exist with respect to implementing it at all 
the prisons.
    Senator Sessions. I understand there is a pilot program 
ongoing, I believe maybe in El Paso, in which persons who enter 
the country illegally in violation of our laws are being 
prosecuted before they are deported. And as a result, there has 
been a significant reduction in the number of people attempting 
to enter that area of the border. Is that true? And what are 
your plans to consider expanding that?
    Attorney General Gonzales. It is true. It requires the 
cooperation of the judge, quite frankly, and so we have had 
discussions with judges along the border to see whether or not 
they would be agreeable to such a process. And so we would like 
to expand it. There are challenges, and, again, it does require 
the cooperation of the judge.
    Senator Sessions. Well, I would hope that the judges would 
cooperate. I mean, they don't get to decide who gets charged. 
They don't get to make the deciding function. Their 
responsibility is to enforce--to give a fair trial to whoever 
is brought before them by the prosecutor. Isn't that right?
    Attorney General Gonzales. Yes, but they will insist on 
certain processes, that it follow certain timetables. And so 
unless a judge is willing to agree to an expedited process in 
the manner that we are seeing with respect to this particular 
judge, it can present some challenges for us.
    Senator Sessions. Well, I understand it has worked well. I 
think it is something that ought to be replicated, and I would 
expect that Federal judges, if they understand the national 
interest in seeing that laws get enforced, would cooperate. I 
hope that you will pursue that. Will you pursue that?
    Attorney General Gonzales. We will certainly do that, yes.
    Senator Sessions. I wrote you a letter in April--my time is 
out, and I will just briefly--
    Chairman Leahy. Go ahead and finish your question, Senator.
    Senator Sessions. In April, asking for a response regarding 
prosecution of criminal immigration cases. Two questions that--
you gave me a response to one of my questions, but two 
questions that were unanswered are these. I asked what the 
official policy of each district office was in determining 
whether to prosecute immigration-related violations; and, two, 
the declination rate for immigration cases referred to each 
Southwest border district by the Department of Homeland 
Security with an explanation as to some of the reasons given 
for that decision. We have not yet received responses on that. 
Will you give me a response to that?
    Attorney General Gonzales. If I can. The second one may 
require information from the Department of Homeland Security, 
but if we can provide the information, we will certainly try to 
do so.
    Senator Sessions. Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    On my list, the next Senator to question will be Senator 
Schumer, and unless--
    Senator Sessions. Could I ask one quick question? I hate--
    Chairman Leahy. Go ahead, Senator Sessions. Feel free.
    Senator Sessions. Thank you, Mr. Chairman. You are most 
gracious.
    Senators Salazar, Cornyn, Pryor, and I, former Attorneys 
General, have introduced legislation again to reduce some of 
the crack penalties and alter the balance between crack and 
powder cocaine. Has the Department of Justice taken a position 
on that as of this year? And will you?
    Attorney General Gonzales. Well, we think--I'd be happy to 
have a continued dialog with you. Personally, as I sit here 
today, I would say that where we're at today is certainly 
reasonable. We think crack is more dangerous. It's related to, 
I think, addiction more quickly. It's more related to more 
dangerous crimes. The effects of it I think are more dangerous. 
So from a law enforcement perspective, it makes sense to have 
the kind of sentences that exist today. But we obviously have a 
great deal of respect for all--
    Senator Sessions. I think it is time to review that. I 
hope--
    Attorney General Gonzales. And we would be happy to review 
it.
    Chairman Leahy. I might note that I think it is long past 
time to review it. There is more and more growing feeling that 
crack cocaine carries the highest penalties. It is also the 
people you are apt to see in the poorer neighborhoods. Powder 
cocaine, which is in some of the boardrooms and some of the 
yachts and some of the Hollywood parties of others who have a 
lot more money to hire lawyers and everything else, that gets a 
lower penalty.
    But be that as it may, there will be a time we will have 
hearings on that. I have told the Senator from Alabama we will 
look into this issue. I think it is long past looking into. I 
know the Sentencing Commission has worked on it, and we will 
want an answer from the Department of Justice on its position.
    I started to say that the order on our side will be Senator 
Schumer, Senator Durbin, Senator Feingold, Senator Kennedy, and 
Senator Biden. And, of course, we will interpose Republican 
Senators if they come, but so far we have heard from all of the 
Republican Senators who have showed up today.
    Senator Schumer.
    Senator Schumer. Well, thank you, Mr. Chairman, and thank 
you, Mr. Attorney General. I would like to just pick up where 
Senator Specter left off about the TSP program, just a few 
preliminaries.
    First, I take it there was just one program that the 
President confirmed in 2005. There was not more than one.
    Attorney General Gonzales. He confirmed one, yes, 
intelligence activity, yes, one program.
    Senator Schumer. Thank you. Okay. And you have repeatedly 
referred to the, quote, program that the President confirmed in 
December 2005. I am just going to put up a chart here. Here is 
what you said before this Committee on February 6th of 2006. 
You said, ``There has not been any serious disagreement about 
the program the President has confirmed. With respect to what 
the President has confirmed, I do not believe that these DOJ 
officials that you were identifying had concerns about this 
program.''
    This was in reference to a question I asked you, was there 
any dissent here. This was before Comey came to testify. It was 
in February, but we had some thoughts that maybe that happened. 
And now, of course, we know from Jim Comey that virtually the 
entire leadership of the Justice Department was prepared to 
resign over concerns about a classified program. Disagreement 
does not get more serious than that.
    And what program was the ruckus all about? And this is the 
important point here. At your press conference on june 5th, it 
was precisely the program that you testified had caused no 
serious dissent. You said, ``Mr. Comey's testimony''--and he 
only testified once--``related to a highly classified program 
which the President confirmed to the American people some time 
ago.'' Those are your words, sir.
    So please help us understand how you did not mislead the 
Committee. You just admitted to me there was only one program 
that the President confirmed in December of 2005. I asked you 
was there dissent. You said no. Now you are saying--you said in 
a letter to me there was--well, there was dissent over other 
intelligence activities. But your June 5th statement confirms 
that what Comey was testifying about, because he had then 
testified, was the very program, sir, the very program that you 
said there was no dissent to.
    How can you say you haven't deceived the Committee?
    Attorney General Gonzales. Well, I stand by what I said at 
the Committee. This press conference is one that I would like 
to look at the question. I would like to look at my response.
    Senator Schumer. Okay. We are going to bring it up to you 
right now, sir. Okay?
    Attorney General Gonzales. Good.
    Senator Schumer. These are your words, right? You don't 
deny that these are your words? This was a public press 
conference.
    [Pause.]
    Attorney General Gonzales. I'm told that what I--in fact, 
here in the press conference, I did misspeak, but I also went 
back and clarified it with the reporter.
    Senator Schumer. You did misspeak?
    Attorney General Gonzales. Yes. But I went back and 
clarified it with the reporter.
    Senator Schumer. When was that? And what was the reporter's 
name?
    Attorney General Gonzales. The Washington Post, 2 days 
later. Dan Egan was the reporter.
    Senator Schumer. Okay. Well, we will want to go follow-up 
with him. But the bottom line is this: You just admitted there 
was just one program that the President confirmed in December. 
Just one. Is that correct, sir?
    Attorney General Gonzales. The President talked about a set 
of activities--
    Senator Schumer. No. I am just asking you a yes or no 
simple question, just as Senator Specter has, and just like 
Senator Specter and others here, I would like to get an answer 
to that question. You just said there was one program. Are you 
backing off that now?
    Attorney General Gonzales. The President--
    Senator Schumer. Was there one program or was there not 
that the President confirmed?
    Attorney General Gonzales. The President confirmed the 
existence of one set of intelligence activities.
    Senator Schumer. Fine. Now, let's go over it again, sir, 
because I think this shows clear as could be that you are not 
being straightforward with this Committee, that you are 
deceiving us.
    Then you said in testimony to this Committee in response to 
a question that I asked, there has not been any disagreement 
about the program the President confirmed. Then Jim Comey comes 
and talks about not just mild dissent, but dissent that shook 
the Justice Department to the rafters. And here, on June 5th, 
you say that Comey was testifying about the program the 
President confirmed.
    Attorney General Gonzales. And I've already said--
    Senator Schumer. You, sir--
    Attorney General Gonzales.--clarified my statement on June 
5th. Mr. Comey was talking about a disagreement that existed 
with respect to other intelligence activities.
    Senator Schumer. How can we--this is constant, sir, in all 
due respect, with you. You constantly make statements that are 
clear on their face that you are deceiving the Committee, and 
then you go back and say, ``Well, I corrected the record 2 days 
later.'' How can we trust your leadership when the basic facts 
about serious questions that have been in the spotlight you 
just constantly change the story, seemingly to fit your needs 
to wiggle out of being caught, frankly, telling mistruths.
    It is clear here. It is clear. One program. That is what 
you just said to me. That is what locks this in, because, 
before that you were sort of alluding in your letter to me on 
May 17th, you said, well, there was one program--you said there 
was this program, TSP, and then there were other intelligence 
activities.
    Attorney General Gonzales. That is correct.
    Senator Schumer. You wanted us to go away and say, well, 
maybe it was other--wait a second, sir.
    Attorney General Gonzales. And the disagreement related 
to--
    Senator Schumer. Wait a second, sir.
    Attorney General Gonzales.--the other intelligence 
activities.
    Senator Schumer. I will let you speak in a minute, but this 
is serious because you are getting right close to the edge 
right here. You just said there was just one program. Just one. 
So the letter, which was sort of intended to deceive but 
doesn't directly do so because there are other intelligence 
activities, gets you off the hook, but you just put yourself 
right back on here.
    Attorney General Gonzales. I clarified my statement 2 days 
later with the reporter.
    Senator Schumer. What did you say to the reporter?
    Attorney General Gonzales. I did not speak directly to the 
reporter.
    Senator Schumer. Oh, wait a second. You did not. Okay. What 
did your spokesperson say to the reporter?
    Attorney General Gonzales. I don't know, but I told the 
spokesperson to go back--
    Senator Schumer. Well, wait a minute, sir. Sir--
    Attorney General Gonzales.--and clarify my statement.
    Senator Schumer.--in all due respect--and if I could have 
some order here, Mr. Chairman. In all due respect, you are just 
saying, well, it was clarified with the reporter, and you don't 
even know what he said. You don't even know what the 
clarification is.
    Sir, how can you say that you should stay on as Attorney 
General when we go through exercises like this, where you are 
bobbing and weaving and ducking to avoid admitting that you 
deceived the Committee. And now you don't even--I will give you 
another chance. You are hanging your hat on the fact that you 
clarified the statement 2 days later. You are now telling us 
that it was a spokesperson who did it. What did that 
spokesperson say? Tell me now. How do you clarify this?
    Attorney General Gonzales. I don't know, but I will find 
out and get back to you.
    Senator Schumer. How do you clarify this? This is serious 
because it looks like you have deceived us.
    Chairman Leahy. In your own words, how would you clarify 
it?
    Senator Schumer. How would you clarify it? You don't need--
    Attorney General Gonzales. What I would say--here, let me 
answer the question--
    Senator Schumer. If you want to be Attorney General, you 
should be able to clarify it yourself right now and not leave 
it to a spokesperson who you don't know what he said. Tell me 
how you would clarify it.
    Attorney General Gonzales. I would have said Mr. Comey's 
testimony about the hospital visit was about other intelligence 
activities, disagreement over other intelligence activities. 
That's how I would clarify it.
    Senator Schumer. That is not what Mr. Comey says. That is 
not what the people in the room say.
    Attorney General Gonzales. That's how we'd clarify it.
    Senator Schumer. Explain that again? Because it still 
doesn't add up.
    Attorney General Gonzales. What I would--
    Senator Schumer. You said there is only one--
    Attorney General Gonzales. Mr. Comey--
    Senator Schumer. You said there is one program the 
President confirmed. Are you saying Mr. Comey didn't disagree 
with the program that the President confirmed in December?
    Attorney General Gonzales. What I'm saying is that the--
    Senator Schumer. That is what you're saying here.
    Attorney General Gonzales.--disagreement Mr. Comey 
testified about was about other intelligence activities.
    Senator Schumer. Mr. Chairman, I think we have to pursue 
this at some point because this is--I have never heard anything 
quite like this.
    Chairman Leahy. Could I ask, if I might, you said you made 
a clarification to a reporter. This is such a significant and 
major point. Did you ever offer such a clarification to either 
Senator Specter or myself?
    Attorney General Gonzales. You mean in terms of what was 
said at the press conference?
    Chairman Leahy. Yes.
    Attorney General Gonzales. I don't believe so. But I think 
my correspondence and testimony is accurate. The statement at 
the press conference was not accurate, and I corrected it. That 
was corrected.
    Senator Schumer. But, Mr. Chairman, if I might, now what 
the Attorney General is saying, the way this is clarified, is 
that Jim Comey was not talking about the program the President 
confirmed.
    Chairman Leahy. I am going to ask for a review of the 
transcript, both what Mr. Comey said--
    Senator Schumer. Everyone knows that is not true.
    Chairman Leahy.--and what Mr. Gonzales said. If there is a 
discrepancy here in sworn testimony, then we are going to have 
to ask who is telling the truth and who is not.
    Mr. Durbin, Senator Durbin
    Senator Schumer. Thank you, Mr. Chairman.
    Senator Durbin. Thank you, Mr. Chairman. Thank you, Mr. 
Attorney General.
    There are many controversial issues that have been raised 
in this hearing: warrantless wiretapping, the political 
dismissal of U.S. Attorneys, and the like. I think that this 
administration and your tenure as Attorney General will be 
haunted in history by another issue, and that is the issue of 
torture. It is the reason I could not vote for your 
confirmation, the role that you played as counsel to the 
President in saying that we as a Nation did not have to follow 
the torture statute and the provisions of the Geneva 
Conventions.
    Now, last Friday, President Bush signed an executive order 
interpreting Common Article III of the Geneva Conventions for 
the purposes of CIA secret detention and interrogation. The 
Executive order rejected your earlier position and acknowledges 
that the CIA must follow applicable law, including Common 
Article III of the Geneva Conventions, the torture statute, and 
the McCain torture amendment, which I was happy to cosponsor.
    Do you now agree that Common Article III applies to all 
detainees held by the United States?
    Attorney General Gonzales. What I can say is that certainly 
Common Article III applies to all detainees held by the United 
States in our conflict with al Qaeda.
    Senator Durbin. I am sorry. What--
    Attorney General Gonzales. In our conflict with al Qaeda, 
yes.
    Senator Durbin. Well, I am worried about the qualification 
at the end. Are you suggesting that other terrorist conflicts 
are not covered by Common Article III in terms of the treatment 
of detainees?
    Attorney General Gonzales. You know, we have to look at the 
words of Common Article III. The Supreme Court rendered a 
decision about the application of Common Article III with 
respect to our conflict with al Qaeda only. And so--I believe, 
if I recall correctly.
    If that were the case, if there were a different kind of 
conflict that on its face isn't covered by Common Article III, 
then obviously we would not be legally bound by Common Article 
III, although I think the President has said we are going to 
treat people humanely nonetheless.
    Senator Durbin. So let me get into a specific here. Last 
year, the highest-ranking attorneys in each of the four 
military services--Army, Navy, Air Force, and Marines--the 
Judge Advocates General testified before this Committee, and I 
sent them follow-up questions asking their opinion about 
specific abusive interrogation techniques that this 
administration has reportedly authorized. I received their 
responses this morning, and, Mr. Chairman, I ask consent that 
those responses be made a part of the record.
    Chairman Leahy. They will be made part of the record.
    Senator Durbin. Mr. Attorney General, the opinion of the 
Judge Advocates Generals was unanimous. They all agreed that 
the following interrogation techniques violate Common Article 
III of the Geneva Conventions, and there are five: painful 
stress positions, threatening detainees with dogs, forced 
nudity, waterboarding, and mock execution. Do you agree?
    Attorney General Gonzales. Senator, I'm not going to get 
into a public discussion here about possible techniques that 
may be used by the CIA to protect our country. What I can say 
is the executive order lays out a very careful framework to 
ensure that those agents working for the CIA, trying to get 
information about the next attack do so in a way that is 
consistent with our legal obligations. And so, again, without 
commenting on specific techniques, we understand what the rules 
of the road are.
    Senator Durbin. Mr. Attorney General, do you know what you 
are saying to the world about the United States when you refuse 
to acknowledge that these techniques are beyond the law, beyond 
the tradition of America? These Judge Advocates General have a 
responsibility as well. They have been explicit and unanimous. 
The problem with your statement, Mr. Attorney General, is that 
you are leaving room for the possibility that you disagree with 
them.
    Attorney General Gonzales. And, of course, those in the 
military are subject to the Army Field Manual. It's a standard 
of conduct that is way above Common Article III. And so they 
come at it from a different perspective, quite frankly, 
Senator. And, again, I wish I could talk in more detail about 
specific actions, but I cannot do that in an open setting.
    Senator Durbin. Well, let me just ask you to consider this 
for a moment. Aside from the impact of what you have just said 
on America's reputation in the world, aside from the fact that 
we have ample record that you have disagreed with the use of 
Geneva Convention standards and have pushed the torture issue 
beyond where the courts or the Congress would take it, would it 
be legal for a foreign government to subject a United States 
citizen to these so-called enhanced interrogation techniques 
which I just read?
    Attorney General Gonzales. Would it be legal for the United 
States Government to subject--
    Senator Durbin. No. For a foreign government.
    Attorney General Gonzales. For a foreign government.
    Senator Durbin. To subject a United States citizen to the 
five--any of the five interrogation techniques which I read to 
you?
    Attorney General Gonzales. Well, again, Senator, we would 
take the position--you are talking about an American soldier 
who fights pursuant to the rules of the Geneva Convention--
    Senator Durbin. No, no. That is a different story. That is 
a uniformed person. I am talking about a United States citizen.
    Attorney General Gonzales. Would it be legal under their 
laws? Would it be legal under international standards? What do 
you mean by ``would it be legal''? We obviously would demand 
humane treatment and treatment for U.S. citizens consistent 
with international legal obligations and that's what--
    Senator Durbin. And would you--
    Attorney General Gonzales. That's what this President 
expects of those of us who work in this Government.
    Senator Durbin. And do you believe these techniques which I 
have read to you would be beyond the laws and the international 
standards if they were used against an American citizen?
    Attorney General Gonzales. Senator, you are asking me to 
answer a question which I think may provide insight into 
activities that the CIA may be involved with in the future.
    Senator Durbin. No. I am asking you a hypothetical 
question. Anytime we get close to a specific issue, an 
investigation, you recuse yourself.
    Attorney General Gonzales. Every time--
    Senator Durbin. Now I am asking you for a general 
observation. Mr. Attorney General, the point I am making to you 
is if you cannot be explicit about the standards of conduct and 
the values of this country when it comes to the use of torture, 
you create an ambiguity which, unfortunately, reflects badly on 
America around the world and invites those who would take 
American citizens as captives and detainees to also suggest, 
well, there is an ambiguity, we can go a little further than 
perhaps international law allows.
    Attorney General Gonzales. Well, what is prohibited would 
be grave breaches, which are set forth--
    Senator Durbin. What about these five specifics?
    Attorney General Gonzales.--in the Military Commissions 
Act. There are also violations of the DTA, which would be 
violation of cruel, inhumane, degrading standard, which is tied 
to our constitutional standards of shocking the conscience. And 
then there are prohibited actions which would be covered by the 
President's executive order. And, again, it would depend on 
circumstances, quite frankly.
    Senator Durbin. Well, that is the kind of ambiguity which 
allows many people to conclude that you personally and this 
administration, whether by signing statements or the Bybee 
memos, are really trying to leave a little opening in a door 
for the United States to engage in conduct which we condemn 
around the world.
    The last question I want to ask you is this: The latest 
National Intelligence Estimate suggests that al Qaeda is 
stronger today than they were on 9/11. It suggests, as we all 
know, that Osama bin Laden is still at large. And it suggests 
that Guantanamo has become a symbol of injustice around the 
world.
    Can you explain to me why 5 years after the Guantanamo 
detention situation has been created there still has not been a 
single conviction of any of these detainees or combatants for 
any wrong doing?
    Attorney General Gonzales. It is not for lack of trying on 
the Government's part, Senator. It is because these 
individuals--
    Senator Durbin. It could be lack of competence.
    Attorney General Gonzales. These individuals have been 
provided process, and they are taking advantage of that 
process, and I don't begrudge them for it, for hiring good 
lawyers and defending their interests in the courts. And so we 
are slugging it out in the courts. And, you know, I would like 
to get all these issues resolved. I would like to bring all 
these individuals to justice. So we are doing our best, but we 
are doing it in a way that reflects the reality that these 
individuals have the opportunity and the means to go into court 
to contest what we are doing.
    Senator Durbin. I would suggest 5 years ago, Senator 
Specter and I proposed legislation to create military 
commissions which we thought would have given you that 
opportunity, and the administration was not receptive. Thank 
you, sir.
    Chairman Leahy. As I recall, I was one of those who joined 
with you on that proposal. There was almost arrogant rejection 
of our proposal. Basically the White House--you were then White 
House Counsel--said that you knew better, we don't need it, and 
rejected it out of hand. Of course, when the Supreme Court came 
down, a Republican-dominated Supreme Court came down, said you 
were wrong, we were right. We have wasted years, which I think 
was Senator Durbin's point.
    Senator Feingold.
    Senator Feingold. Thank you, Mr. Chairman. I will shortly 
be introducing a resolution to censure the President and senior 
members of his administration for undermining the rule of law, 
from authorizing an illegal wiretapping program to claiming the 
power to detain U.S. citizens indefinitely without charging 
them.
    I think this administration has shown disdain for the 
constitution and the laws of the land. You have played a 
central role in that effort. So I would like to give you an 
opportunity to defend your actions.
    With respect to the NSA's illegal wiretapping program, last 
year in hearings before this committee and the House Judiciary 
Committee, you stated that, ``[t]here has not been any serious 
disagreement about the program that the President has 
confirmed.'' That any disagreement that did occur ``[d]id not 
deal with the program that I am here testifying about today.'' 
And that ``[t]he disagreement that existed does not relate to 
the program the President confirmed in December to the American 
people.''
    Two months ago you sent a letter to me and other members of 
this committee defending that testimony and asserting that it 
remains accurate, and I believe you said that again today. Now 
as you probably know, I am a member of the Intelligence 
Committee. And therefore, I am one of the members of this 
committee who has been briefed on the NSA wiretapping program 
and other sensitive intelligence programs.
    I have had the opportunity to review the classified matters 
at issue here, and I believe that your testimony was misleading 
at best. I am prevented from elaborating in this setting, but I 
intend to send you a classified letter explaining why I have 
come to that conclusion.
    Attorney General, the integrity of the Congressional 
testimony of the highest law enforcement official in the 
country is an extremely important matter. I therefore ask that 
after reviewing that letter you provide clarification in a 
classified setting. But also please consider how you can 
address this issue publically to dispel the doubts about your 
voracity that this episode has raised. Will you agree to do 
that?
    Attorney General Gonzales. I certainly would endeavor to do 
that, Senator. I guess I am very surprised at your conclusion 
that I may have been misleading. If, in fact, you understood 
the briefings in the Intel Committees, quite frankly. I find 
your statements surprising, so I look forward to your 
correspondence.
    Senator Feingold. Well, I look forward to the information, 
the classified setting, and to your public attempts to set this 
straight. I strongly disagree with your analysis of how 
somebody would come down as to whether you were misleading.
    In fact, I'm appalled by your efforts today to try to shift 
responsibility for the effort to strong arm Attorney General 
Ashcroft. First given your history of misleading this 
committee, I don't know why we should trust your account of the 
situation.
    Second, unless you're talking about a covert action, the 
limited Gang of Eight briefing itself was a violation of the 
National Security Act. And third, it was you, Mr. Attorney 
General, who visited the hospital to try to strong arm a sick 
man who had temporarily relinquished his responsibility. You 
are responsible for those actions.
    At your confirmation hearing in January, 2005, I asked you 
whether the President has the power to authorize warrantless 
wiretapping under the theories of the torture memo. You called 
my question ``hypothetical,'' when you knew full well, full 
well that this had been going on for years. You could have 
spoken to me after the hearing and told me that there was 
something I should know that you couldn't explain in open 
session, but you did not. Then during your campaign to 
reauthorize the Patriot Act, you told Congress that there were 
no abuses of that law that we needed to worry about. Even 
though you had documents showing there had actually been 
problems with the Patriot Act and other surveillance 
authorities.
    Then again last year you came to this committee and told us 
that there had not been any serious disagreement about the 
warrantless wiretapping program the President confirmed in late 
2005. A statement I believe was misleading at best.
    In every case you somehow managed to come up with some 
convoluted theory for why your statement was technically 
accurate. When you look at all of these incidents together, it 
is hard to see anything but a pattern of intentionally 
misleading Congress again and again.
    Shouldn't the Attorney General of the United States meet a 
higher standard?
    Attorney General Gonzales. The Attorney General of the 
United States should try to meet the highest standard, and I 
have tried to meet that standard, Senator.
    Senator Feingold. You feel you've met that standard?
    Attorney General Gonzales. Obviously there have been 
instances where I have not met that standard, and I've tried to 
correct that. When those standards have not been met, I have 
tried to make amends and tried to clarify to the committee and 
to the American people about statements that I've made.
    Senator Feingold. You state in your testimony that the 
administration has transmitted to Congress a proposal to 
modernize the Foreign Intelligence Surveillance Act, and yet 
your department still refuses to share with this committee and 
with the Intelligence Committee basic information about the 
evolution of the department's legal justifications for the 
illegal wiretapping program from 2001 to the present.
    And your legislative proposal contains a provision that 
would grant blanket immunity to individuals who cooperate with 
the government for participating in certain unidentified 
intelligence activities.
    How can you come to Congress with a straight face and ask 
for this immunity provision, yet at the same time refuse to 
tell most members of Congress what they would be granting 
immunity for?
    Attorney General Gonzales. Of course we have provided 
briefings to the Intel committees. And again, we went to 
companies for help, they provided help in trying to protect 
this country, and we think that's appropriate for the Congress 
to consider.
    Senator Feingold. But I'm asking you how you can say that 
in light of the fact that most Members of Congress won't even 
be told what they are being granted immunity for.
    Attorney General Gonzales. Well, again, we have provided, 
it is in the judgment, the administration, the appropriate 
briefings to the Congress about these activities.
    Senator Feingold. I don't think that cuts it for most 
people who are going to be voting on this. Do you agree that 
the potential liability of private entities for failing to 
follow the law is an important part of the enforcement of our 
privacy laws?
    Attorney General Gonzales. If I understand your question, 
yes.
    Senator Feingold. I'm not asking whether you think there 
was an illegal activity in any particular instance. I'm asking 
you whether you think private liability is an important part of 
the enforcement scheme of our privacy laws.
    Attorney General Gonzales. I think as a general matter, 
that would be true, yes.
    Senator Feingold. Thank you, Mr. Chairman.
    Chairman Leahy. Thank you. Senator Kennedy.
    Senator Kennedy. Thank you. Thank you very much, Mr. 
Chairman. Thank you.
    Just to come back for a moment or two to the issue of 
torture. As you are aware, the President's latest Executive 
Order has been published. It was published on July 20th, 2007. 
Did the department review the Executive order?
    Attorney General Gonzales. Yes.
    Senator Kennedy. The order was put out?
    Attorney General Gonzales. As a matter of custom, we would 
do that, yes.
    Senator Kennedy. Okay. And did you produce any memoranda or 
any other documents assessing the legality of the order?
    Attorney General Gonzales. Senator, I don't know, we 
certainly provided advice, yes, about the order.
    Senator Kennedy. Well--
    Attorney General Gonzales. I can't tell you whether or not 
we provided a legal document with respect to the order.
    Senator Kennedy. Or comments about that.
    Attorney General Gonzales. Yes.
    Senator Kennedy. Could you--can you make those available to 
the committee? Can you make those available to us, all of the 
department's analysis of that?
    Attorney General Gonzales. I will take that back and see 
what we can do, Senator.
    Senator Kennedy. In the Executive order, at section 3(b)(i) 
paragraph E it mentions certain activities that by definition 
violate human decency. It specifies those activities.
    It says in paragraph E, outrageous acts of personal abuse 
done for the purpose of humiliating or degrading the individual 
in a manner so serious that any reasonable person, considering 
the circumstances, would deem the acts to be beyond the bounds 
of human decency.
    Then it specifically prohibits certain activities. Certain 
activities are prohibited in the Executive order. It says, such 
as sexual or sexually indecent acts undertaken for the purpose 
of humiliation, those activities are prohibited. It says, 
forcing the individual to perform sexual acts or to pose 
sexually, those activities are prohibited.
    Threatening the individual with sexual mutilation, or using 
the individual as a human shield, those activities are 
prohibited. Then paragraph F says that acts intended to 
denigrate the religion, religious practices, or religious 
objects of the individual these acts are prohibited.
    So the question is, why aren't you willing, if those are 
prohibited, why aren't you willing to prohibit the other kinds 
of activities that were outlined earlier, including 
waterboarding, stress, dogs, nudity, and mock executions? You 
prohibit these activities. Why don't you prohibit those?
    Attorney General Gonzales. Senator, there are certain 
activities that are clearly beyond the pale, and that everyone 
would agree should be prohibited. So obviously the President is 
very, very supportive of those actions that are identified by 
its terms in the Executive order.
    There are certain other activities where it is not so 
clear, Senator. Again, it is for those reasons that I can't 
discuss in a public session.
    Senator Kennedy. The point has been made superbly by my 
colleague, Senator Durbin. What you are basically saying to 
this committee and the rest of the world is that these acts, 
which are mentioned in the Executive order, are prohibited, but 
these other activities are not, the five other activities which 
were the subject of a good deal of our own hearings when we had 
a problem with your confirmation as Attorney General. These 
other five activites don't rise to the point where they are 
prohibited.
    Attorney General Gonzales. I am not saying that they are 
not. What I'm saying is--
    Senator Kennedy. But they weren't of sufficient importance 
to list them as you listed these other activities.
    Attorney General Gonzales. I wouldn't say it is importance. 
But clearly these activities are ones that are clearly beyond 
the pale, and everyone agrees the United States government 
should not be engaged in.
    With respect to whether or not other activities should be 
prohibited, that will be determined based upon the parameters 
set forth in the Executive Order, and for the Director of the 
CIA to make sure that certain standards are met before 
authorizing any activity to ensure that it complies with the 
requirements of the order.
    Senator Kennedy. This past Sunday, Admiral McConnell was on 
Meet the Press, and he was asked about some of these 
activities. He indicated that he was not going to comment 
specifically on it.
    Is it lawful to leave the threat of torture hanging out? Is 
the threat of torture a violation of the Geneva Convention?
    Attorney General Gonzales. Well, of course the--we're not 
going to torture. We are bound by both domestic and 
international law. We don't engage in torture. I don't think 
we've let the threat out there. We have said we are not going 
to engage in torture.
    Senator Kennedy. Okay. Well, the point is about these five 
items, which Admiral McConnell indicated in response to a 
question that he wasn't going to comment on. The question is 
whether that threat is extreme psychological harm. The fact 
that you won't indicate that those activities are off the table 
poses a violation of the Geneva Convention.
    Let me go to another issue. This morning's Washington Post 
had this story on the front page. Diplomats received political 
briefings. They were done even at the Peace Corps.
    Now, we have already had some 15 Federal agencies and 
departments subject to briefing by Karl Rove's political office 
at the White House. These briefings focused on the key 
electoral contests.
    According to the Post today, even diplomats and the Peace 
Corps have been given briefings that went so far as to identify 
Democrats targeted for defeat in 2008.
    Has Karl Rove or anyone from his office given similar 
briefings to the leadership in the Department of Justice?
    Attorney General Gonzales. Not that I'm aware of.
    Senator Kennedy. Well, you would know if he had.
    Attorney General Gonzales. I would think so, but I don't 
believe so, sir.
    Senator Kennedy. And is it your legal opinion that these 
briefings given in the Peace Corps which target Democrats for 
defeat, are these briefings consistent with the Hatch Act? Is 
that a violation of the Hatch Act?
    Attorney General Gonzales. I don't know. I haven't studied 
this article. I'm not aware of what happened in the briefings. 
I certainly wouldn't rely upon the article in making--
    Senator Kennedy. Well, it raises serious questions, does it 
not?
    Attorney General Gonzales.--in reaching a conclusion as to 
whether or not the Hatch Act--
    Senator Kennedy. You are going to look into it?
    Attorney General Gonzales. We will look to see whether or 
not there is something there.
    Senator Kennedy. Whether it's a violation. Whether they in 
these briefings were doing partisan targeting on government 
property, talking to these officials in the Peace Corps. Going 
into the Peace Corps, telling them that they should be 
undermining Democrats who should be defeated in the next 
election.
    Attorney General Gonzales. Let me try to get more 
information about this, Senator. I really don't know anything. 
I need to find out more about it.
    Senator Kennedy. Well, if this story is true, would it 
appear to you that it would be a violation?
    Attorney General Gonzales. Again, Senator, I would like to 
have the opportunity to find out what happened.
    Senator Kennedy. Let me go quickly in the last seconds to 
the Civil Rights Division in the Justice Department. We had Wan 
Kim who was here asked about the number of cases filed to fight 
voter discrimination against African-Americans.
    The Bush administration has filed only two voting rights 
cases on race discrimination against African-Americans, and it 
took until 2006 to file these. They found time to clear Tom 
DeLay's Texas redistricting plan and the Georgia photo ID law, 
but filed just two cases on this.
    Attorney General Gonzales. You mean against African-
Americans, or total?
    Senator Kennedy. Cases about discrimination in voting 
rights filed on behalf of African-Americans, just two cases. 
Dramatically less than the previous administration.
    Do you think that this really reflects what's happening out 
there in terms of voter discrimination against African-
Americans?
    Attorney General Gonzales. No, I still believe we have a 
problem, and we have an obligation to try and address it. I 
read with great interest the testimony. I think it was Dr. 
Norton and the panel that followed Mr. Kim's testimony in terms 
of the allegation that the numbers across the boarder down, and 
I questioned Mr. Kim about that. We talked about the numbers 
and the cases.
    So I think the person to testify was either mistaken or 
just plain wrong. So we have provided a lot of information to 
this committee about the successes of the Civil Rights 
Division, and I can tell you, Senator, I am firmly committed to 
protecting the civil rights of all Americans.
    Senator Kennedy. My time is up, Mr. Chairman. I'd like to 
just provide information at this point.
    Chairman Leahy. Thank you. And I would expect an answer to 
the question on the Hatch Act that Senator Kennedy spoke about.
    When Monica Goodling testified under oath before the House 
Judiciary Committee, she crossed the line with the 
unprecedented vetting of potential career hires for political 
allegiances throughout the department, including apparently for 
career Assistant U.S. attorney positions. I'm not talking about 
political positions, but career ones.
    She testified under oath that she crossed the line. Were 
you aware that Ms. Goodling was doing so?
    Attorney General Gonzales. That she was crossing the line? 
No.
    Chairman Leahy. Were you aware that she was talking, asking 
about political allegiances and vetting career Justice 
Department?
    Attorney General Gonzales. I don't recall being aware of 
that. If I had been aware of that, that would have been 
troubling to me.
    Chairman Leahy. Do you know whether other officials at the 
White House were aware she was doing that?
    Attorney General Gonzales. Not that I'm--let me just 
mention, I'm aware, and I think I became aware after the U.S. 
attorneys were asked to resign. There was an issue that I 
became aware of where Ms. Goodling apparently asked a potential 
career hire into the D.C. U.S. Attorney's Office improper 
questions.
    So at some point I did become aware of that. But otherwise, 
I can't recall being aware of other instances where she may 
have asked improper questions.
    Chairman Leahy. When you consider, recommend, or approve 
candidates for employment to career positions at the 
department, do you ever consider their political party 
affiliation or ideology or membership in nonprofit 
organizations or demonstrate loyalty to the President or any of 
those matters?
    Attorney General Gonzales. Did I? No.
    Chairman Leahy. Do you ever?
    Attorney General Gonzales. Do I ever? No.
    Chairman Leahy. Do you know whether anybody else in the 
department does that?
    Attorney General Gonzales. Well, again, apparently based 
upon the testimony, it appears that Ms. Goodling, as she 
testified, may have crossed the line.
    Chairman Leahy. Have you made it clear that people cannot 
do that?
    Attorney General Gonzales. Yes. We have now revised 
policies both with respect to immigration judges, with respect 
to Civil Rights division, with respect to career Assistant 
United States attorneys, with respect to the honors programs, 
we have changed our policies to make it clear.
    Chairman Leahy. Do you make that clear that nobody at the 
White House can do that either?
    Attorney General Gonzales. In terms of?
    Chairman Leahy. Those hires.
    Attorney General Gonzales. I don't know whether or not--I 
have communicated with the White House about that now.
    Chairman Leahy. It might not be a bad idea. They are also 
in the book. Feel free to contact them.
    You testified to both the Senate and the House Judiciary 
Committee that you didn't speak with anyone involved in the 
firings of the U.S. attorneys about that process because you 
didn't want to appear with the investigation.
    But on May 23rd, Monica Goodling testified under oath 
before the House Judiciary Committee that she had an 
uncomfortable conversation with you shortly before she left the 
department during which you outlined your recollection of what 
happened and asked for her reaction.
    Which one of you is telling the truth?
    Attorney General Gonzales. I did have that conversation 
with her in the context of trying to console and reassure an 
emotionally distraught woman that she had done something wrong, 
and I tried to reassure her as far as I knew, nothing had done 
anything intentionally wrong, and that was the basis of the 
conversation that I had.
    She came to my office, this was March 15th, just days after 
this really became a big story. She came in and she was 
emotionally distraught.
    Chairman Leahy. But, you know, we sent you written 
questions on this, on the eve of this. We got answers, and no 
place in there did you make reference to that. So it is your 
statement now that she did come and you did talk with her?
    Attorney General Gonzales. Again, we had a conversation for 
the purpose--my conversation with her, she was seeking to get a 
transfer. I was simply trying to console this very emotionally 
distraught woman.
    Chairman Leahy. You did say that in your estimation, 
nothing wrong was ever done?
    Attorney General Gonzales. And I might add, Mr. Chairman, 
that I had committed to you that we would make these people 
available as witnesses, that the department would be 
forthcoming in turning over documents.
    As far as I knew, nothing improper, nothing illegal had 
happened here.
    Chairman Leahy. So your earlier testimony was wrong?
    Attorney General Gonzales. Senator, I wouldn't say that it 
was wrong. What I want to do is put it in context that again, 
my conversation with her was not to shape her testimony. My 
conversation with her was to simply reassure her that as far as 
I knew, no one had done anything intentionally wrong here.
    Mr. Sampson had just resigned. She reported to Mr. Sampson, 
and I think she was confused, and I think needed reassurance.
    Chairman Leahy. Let me ask you about just how the 
department is administered. You said you do administer it, and 
I understand that.
    In 2003, Congress unanimously, unanimously passed the Home 
Town Heros Act. This would extend Federal survivor benefits to 
the families of firefighters, police officers, emergency 
workers, who die of a heart attack or a stroke in the line of 
duty.
    More than 3.5 years after that the Justice Department used 
its regulatory authority to shift the burden of proof from the 
government to the families. So there has been 260 applications, 
you approved only 14 claims out of those 260, denied 47 others. 
People are really concerned. It seems like a stall. It took 3 
years to write the regulation, and nothing gets approved.
    Now, let me just give you one example of what your 
department denied. You denied benefits to a U.S. forest service 
firefighter in Arizona. He was standing closer than I am to you 
behind a fire line, a shovel in his hand, working to contain 
that. Your department said well, they couldn't determine 
whether he was engaged in strenuous activity at the time of his 
heart attack.
    I don't know what you consider strenuous activity. I think 
if I was standing this close to a fire line with a shovel in my 
hand trying to contain a forest fire, I would certainly 
consider it more strenuous than my normal day's activities.
    What are you going to do to knock down these kind of 
bureaucratic delays? This is picky, petty, and it is wrong to 
the families of very, very brave people. It makes many of us 
feel, many in both parties feel the President may have assigned 
this law, he may not have put a signing statement in, which he 
often does to ignore the law. But by God, he's going to make 
sure the bureaucracy ignores it. What are you going to do to 
clear that up?
    Attorney General Gonzales. Thank you for that question, 
Senator. You're right. It has taken us too long, and I 
apologize to the families. There are two reasons for the delay.
    One is of course the regulations, which took us much too 
long, 3 years. Part of the fact is that we wanted to consult 
with the medical community and with law enforcement to ensure 
that we have the right regulatory framework in place, but it 
still took us too long.
    The second area of delay is the actual processing of 
claims. We have to do a better job of--
    Chairman Leahy. Clear it up. Clear it up.
    Attorney General Gonzales. That's what I said. Yes, sir, I 
agree.
    Chairman Leahy. Report back to Senator Specter and I, 
please.
    Senator Specter.
    Senator Specter. Thank you, Mr. Chairman. Attorney General 
Gonzales, does Solicitor General Paul Clement now have the 
unquestioned authority to appoint a special prosecutor since 
you and the Deputy Attorney General are recused?
    Attorney General Gonzales. It would be his decision, yes.
    Senator Specter. Just to be abundantly clear, so that if a 
request were made to him to appoint a special prosecutor to 
handle the contempt proceedings arising out of this entire 
matter, it would be his decision?
    Attorney General Gonzales. Yes.
    Senator Specter. His sole decision?
    Attorney General Gonzales. I would not be involved with it, 
and neither would the Deputy Attorney General.
    Senator Specter. Or nobody else would be involved in it. It 
is the Attorney General's responsibility under the statute.
    Attorney General Gonzales. Ultimately he would make the 
decision, yes, sir.
    Senator Specter. Going back to the question about your 
credibility on whether there was dessent within the 
administration as to the terrorist surveillance program, was 
there any distinction between the terrorist surveillance 
program in existence on March 10th when you and the Chief of 
Staff went to see Attorney General Ashcroft contrasted with the 
terrorist surveillance program which President Bush made public 
in December of 2005?
    Attorney General Gonzales. Senator, this is a question that 
I should answer in a classified setting, quite frankly. Now you 
are asking me to hint about our operational activities. I'd be 
happy to answer that question, but in a classified setting.
    Senator Specter. Well, if you won't answer that question, 
my suggestion to you for, Attorney General Gonzales, is that 
you review this transcript very, very carefully. I do not find 
your testimony credible, candidly.
    When I look at the issue of credibility, it is my judgment 
that when Mr. Comey was testifying, he was talking about the 
terrorist surveillance program. That inference arises in a 
number of ways, principally because it was such an important 
matter that led you and the Chief of Staff to Ashcroft's 
hospital room.
    When you say that you were going to get Ashcroft's approval 
on another intelligence matter, it strains fragulity that it 
would be other than the foremost program to go to his hospital 
room when he's under sedation.
    When you testified here this morning earlier that you were 
looking to see if Attorney General Ashcroft had sufficient 
capacity to answer the question as to his giving his approval, 
the man was under sedation. It's just all the attendant 
circumstances make it appear, lead to the inference, that we 
are dealing with a terrorist surveillance program.
    So my suggestion to you is that you review your testimony 
very carefully. The Chairman has already said that the 
committee is going to review your testimony very carefully to 
see if your credibility has been breached to the point of being 
actionable.
    I had asked you about the case involving United States 
Attorney Charlton. Are you aware of the fact that with respect 
to the defendant for whom you are seeking the death penalty, 
Jose Rias, that the testimony against him was mostly from 
addicts and drug dealers?
    Attorney General Gonzales. Sitting here today, I have no 
specific recollection of that, no, sir. But again, this is an 
ongoing case, Senator, and we are going to try to make this 
case in the courts. So the more criticism there is of the 
government's position, the harder it's going to be for the U.S. 
Government to prevail in court.
    I would simply urge that we try not to criticize the 
government's position in this case in connection with an 
ongoing matter.
    Senator Specter. Well, I disagree with you categorically. I 
think the government's position ought to be reevaluated. I do 
not know whether it's a proper case for the death penalty or 
not sitting here. But I do know that if you spent only 5 to 10 
minutes on it, you haven't made a reflected, mature, sensible 
judgment on it. The procedures haven't been followed.
    I also know that when the U.S. attorney who handles the 
case makes a request to the Attorney General, he is one man, 
and you're another man. You're dealing with a death penalty for 
a third man. But you owe the process more than 5 to 10 minutes, 
or you ought to be in the position to say to this committee, it 
wasn't 5 to 10 minutes, I don't function that way. I don't make 
the decision on the death penalty in 5 to 10 minutes. But you 
can't say that, because you don't know.
    So what I would say to you to try to simplify it, go back 
and take another look at this.
    Attorney General Gonzales. I will do that.
    Senator Specter. And I'd also suggest to you that you go 
back and take a look at all the other cases where you have 
pressed for the death penalty, especially the ones where your 
United States attorneys have recommended against it.
    Well, time is almost up and we're about to have a vote. We 
are having a vote, but let me cover one more subject very 
briefly. That is the issue on Oxycontin.
    This is a matter, Attorney General Gonzales, where your 
department entered into a plea agreement with the Perdue Pharma 
Company where scores of people died as a result of Oxycontin 
abuse, and even a greater number became addicted.
    The situation arose where there was an acknowledgment that 
there was an intent to mislead. Now, that constitutes malice, 
reckless disregard for the life of somebody else would support 
a common law prosecution for murder in the second degree.
    Now, the question is why does the Department of Justice 
enter into a plea agreement for a fine? No jail times, the cost 
of doing business. The only way to deter white collar crime is 
if there is a penalty involved, if people go to jail who 
acknowledge that they deliberately misled to sell a product. 
What was the reason for that?
    Attorney General Gonzales. Senator, it was the considered 
judgment of the prosecutor that it would be--he was not 
confident in the evidence to support the intent, the individual 
intent or malice of the corporate executives. He took advantage 
of the statute passed by Congress to hold these individuals 
liable without having to show intent.
    As a consequence, they are paying $30 million in fines. 
This was a very difficult and very complex case. So I think 
that the prosecutors here looked at the evidence and decided--
    Senator Specter. How many deaths were there?
    Attorney General Gonzales. I can't answer that question.
    Senator Specter. Would you answer it? Did you review this 
case?
    Attorney General Gonzales. I did not review this case.
    Senator Specter. Do you know how much money is involved for 
this corporation to sell this product?
    Attorney General Gonzales. I don't know the answer to that 
question, Senator.
    Senator Specter. $30 million maybe and cheap license.
    Attorney General Gonzales. It was $600 million for the 
company.
    Senator Specter. $600 million may be slightly more 
expensive cheap license.
    Chairman Leahy. Are you finished?
    Senator Specter. Well, I'm not finished, but I'll conclude. 
Thank you.
    Chairman Leahy. I'm not trying to cut him off. We have to 
vote and there's about 4 or 5 minutes left in this. We will 
recess for 20 minutes. We will recess for 20 minutes.
    Senator Schumer can vote. Senator--we don't have to recess 
unless the Attorney General wants a break. I'll turn the gavel 
over to Senator Whitehouse.
    Senator Whitehouse. Thank you, Mr. Chairman. Mr. Gonzales, 
let me just follow-up briefly on what Senator Feingold was 
saying, because I'm also a member of both committees, and I 
have to tell you, I have the exact same perception that he 
does.
    That is that if there is a kernel of truth in what you said 
about the program which we can't discuss, but we know it to be 
the program at issue in your hospital visit to the Attorney 
General, the path to that kernel of truth is so convoluted and 
is so contrary to the plain import of what you said, that I 
really at this point have no choice but to believe that you 
intended to deceive us and to lead us or mislead us away from 
the dispute that the Deputy Attorney General subsequently 
brought to our attention.
    So you may act as if he is behaving, you know, in a crazy 
way to even think this, but at least count two of us and take 
it seriously.
    When we first spoke some time ago, we talked about 
communications about cases between your office and the White 
House. In that context, let me ask you sort of a background 
question, or a context question.
    That is, if you want an independent Department of Justice, 
one that is protected from improper political influence, as you 
are assaying the different places from which improper political 
influence might come to affect the Department of Justice, what 
do you think would be the locus most presenting that risk?
    Attorney General Gonzales. I'm sorry, Senator. I don't 
understand the question.
    Senator Whitehouse. Well, if you are setting up barriers, 
for instance, administrative barriers to protect the department 
from improper influence, where would you be looking to have 
the, I mean, the Boy Scouts of America, not a major risk, 
wouldn't you say?
    Attorney General Gonzales. Of course.
    Senator Whitehouse. Mayors, City Councils around the 
country, not probably a major risk.
    Attorney General Gonzales. I think where you are trying to 
lead me to is the White House.
    Senator Whitehouse. Isn't the White House the number one 
locus of general concern that has persisted through many 
administrations as to where political influence coming into the 
Department of Justice improperly is going to come from?
    Attorney General Gonzales. Obviously that would be 
certainly a key source of concern.
    Senator Whitehouse. The key. The key, right?
    Attorney General Gonzales. Probably the key source of 
concern.
    Senator Whitehouse. Okay. And in response to that, as we 
discussed in the last hearing, as I can remind you, there was 
the 1994 letter from Janet Reno to Lloyd Cutler. In response to 
that concern, which we agree is a very real one, the letter 
announced, and I believe that the letter, I wasn't here at the 
time, but I believe the letter was actually reduced to writing 
at the direction and instigation of then Judiciary Chairman 
Orrin Hatch, who saw this as a significant concern.
    The letter says this. Initial communications between the 
White House and the Justice Department regarding any pending 
department investigation or criminal or civil case should 
involve only the White House counsel or deputy counsel (or the 
President or Vice President) and the Attorney General or Deputy 
or Associate Attorney General. Seven people.
    As you'll recall, I showed you a graph of what has been 
done since. In response to that, you seem to agree that I had a 
somewhat legitimate concern that I was pursuing. You said, this 
is from your transcript. I remain concerned as Attorney General 
in terms of making sure that communications from the White 
House and the Department of Justice remain in the appropriate 
channels.
    You further said, I agree with you. It is important to try 
to limit the communications about specific criminal cases 
between the counsel's office and the Department of Justice.
    You specifically said, I think the safeguards that you're 
referring to I think are very, very important. Then you said, 
I, like you, am concerned about the level of contacts in 
ensuring that the communications from the White House and the 
Department of Justice occur at the appropriate, within the 
appropriate channels.
    Attorney General Gonzales. Channels.
    Senator Whitehouse. Now, I then showed you the letter that 
Attorney General, the memorandum that Attorney General Ashcroft 
prepared. That is the document that sort of kicked open the 
door from 7 to hundreds of people to be involved and have 
discussions about ongoing criminal civil investigative matters.
    That's what led to our discussion about all of this.
    Attorney General Gonzales. Yes.
    Senator Whitehouse. Now, you've had some time to think 
about this. You have indicated a desire to clean up the mess at 
the department. I would like to bring to your attention a May 
4th, 2006 memorandum that is a subsequent document to the 
Ashcroft memorandum.
    This one is signed by you. If you don't mind, could you 
give them a copy to put up?
    Here is what concerns me. And the Ashcroft memorandum, 
which was the subject of concern before, at the very, very end 
of the Ashcroft memorandum, as you'll remember, there was that 
paragraph under asterisks that changes the whole memorandum in 
front of it.
    It says, not withstanding any procedures or limitations set 
forth above, the Attorney General may communicate directly with 
the President, Vice President, Counsel of the President, 
Assistant to the President for National Security Affairs, and 
various others. Then it provides the staff members it can 
consult with.
    Directly with officials and staff of the Office of the 
President, Office of the Vice President, Office of the Counsel 
of the President, National Security Counsel, and so forth.
    Now, I took the position that that was pretty much kicking 
down a very important door that had protected the department 
from political influence, but I see in your May 4th, 2006 
memorandum a number of things that concern me even more.
    The first is at the bottom of the first page where there is 
an asterisk footnote which says at the bottom, for convenience, 
the executive functions of the Vice Presidency are referred to 
in this document as the Office of the Vice President, or OVP, 
and the provisions of this memorandum that apply with respect 
to communications with the EOP, Executive Office of the 
President I assume that is, will apply in parallel fashion to 
communications with the Office of the Vice President.
    Let me ask you first, what on earth business does the 
Office of the Vice President have in the internal workings of 
the Department of Justice with respect to criminal 
investigations, civil investigations, and ongoing matters?
    Attorney General Gonzales. As a gentleman, I would say 
that's a good question.
    Senator Whitehouse. Why is it here, then?
    Attorney General Gonzales. I'd have to go back and look at 
this.
    Senator Whitehouse. I'd like to know where this came from, 
and how that addition was made.
    Then if you look at the very back, the very last paragraph, 
once again there is a final paragraph set off by asterisks that 
pretty much undercuts everything that was said in the previous 
enumerated paragraphs.
    Here, you can see the difference. It's almost identical 
with the previous memorandum, only it adds some things. Not 
withstanding any procedure or limitation set forth above, the 
Attorney General may communicate directly with the President, 
Vice President, so far same as the Ashcroft memorandum.
    Then you add, their Chiefs of Staff, Counsel to the 
President, then you add, or Vice President. Somebody took the 
trouble to write in Counsel to the Vice President and provide 
that individual access to ongoing criminal investigations, 
ongoing civil investigations, and ongoing other investigative 
matters.
    Attorney General Gonzales. Which I don't know whether or 
not that in fact has happened. So I want to emphasize that.
    Senator Whitehouse. Part of what we do around here is to 
prevent things from happening.
    Attorney General Gonzales. Exactly. Exactly.
    Senator Whitehouse. And when you kick down doors, you 
invite people to do it, whether or not it has been done.
    Attorney General Gonzales. And I agree. And on its fact, I 
must say sitting here, I'm troubled by this.
    Senator Whitehouse. And if you continue, just let me 
finish, because we're not done with the paragraph.
    Attorney General Gonzales. All right.
    Senator Whitehouse. If you go further on down, what was the 
staff of the Office of the President has become the staff of 
the White House office, and the entire Office of Management and 
Budget has been thrown in.
    So you come here today with I think, to put it mildly, 
highly diminished credibility, asserting to us that you want to 
bring, to restore the Department of Justice, and yet here where 
there is something that you could do about it since our past 
discussion, nothing has been done. The memo that has your 
signature makes it worse, and we have agreed that this 
connection between the White House and the Department of 
Justice is the most dangerous one from a point of view of the 
potential for the infiltration of political influence in the 
department.
    How in the light of all those facts can I give you any 
credibility for being serious about the promises you have made 
that you intend to clean up the mess you've made?
    Attorney General Gonzales. Well, because we have taken, I 
have taken several steps to clean up, to address some of the 
mistakes that have been made, Senator.
    I can say that I have directed my staff to try to 
understand what happened with respect to the Ashcroft, what was 
the genesis of it? In fact, we went back and talked to a former 
member of the Ashcroft leadership team to understand, what was 
the basis of the change? What caused this to happen?
    And so we have been looking at this issue, because I am 
concerned about it. With respect to this memo, quite frankly, 
I'd have to look at it. I would be concerned about 
inappropriate access to ongoing investigations, and it is 
something that if it is encouraged by this kind of memorandum, 
I think it's something that we ought to rethink.
    Senator Whitehouse. I would just mention to you that 
Senator Leahy and I, the Chairman and I, have a piece of 
legislation that would restrict the department back to the 
original seven, unless a notification were made to this 
committee about other contacts that were actually made. I hope 
you'll consider that and support it as well.
    It is very difficult at this point to take seriously your 
promises, however well you might mean them subjectively, to 
restore the Department of Justice. There are a lot of people 
here who love it. There are a lot of people here who think very 
highly of it. Everywhere I go, I find increased concern about 
it. People that I used to work with, people who are friends and 
family of people who work in the Department of Justice right 
now.
    We have seven U.S. attorneys or more dismissed. You have 
the Deputy Attorney General McNulty gone, Acting Associate 
Attorney General Mercer gone, your Chief of Staff Kyle Sampson, 
gone, White House liaison Monica Goodling, gone, Chief of Staff 
to Deputy Attorney General Michael Ellston, gone, Director of 
EOUSA Mike Battle, gone.
    In addition to hearing it wherever I go, you get things 
like the recent op ed in the Denver Post written by an active 
AUSA.
    As a long-time attorney at the U.S. Department of Justice, 
I can honestly say that I have never been as ashamed of the 
Department and government that I serve as I am at this time.
    The public record now plainly demonstrates that both the 
DOJ and the government as a whole have been thoroughly 
politicized in a manner that is inappropriate, unethical and 
indeed unlawful.
    In more than a quarter of a century at the Department of 
Justice, I have never before seen such consistent and marked 
disrespect on the part of the highest ranking government 
policymakers for both law and ethics.
    I realize that this constitutionally protected statement 
subjects me to a substantial risk of unlawful reprisal, from 
extremely ruthless people who have repeatedly taken such action 
in the past. But I'm confident that I'm speaking on behalf of 
countless thousands of honorable public servants at Justice and 
elsewhere who take their responsibilities seriously and share 
these views.
    Some things must be said, whatever the risk. As you know, 
this is not an isolated feeling, and I just, I don't know how 
you can say that you can help solve the problem. It appears to 
a lot of people that you, sir, are in fact the problem.
    Attorney General Gonzales. Senator, I understand that 
statement. I disagree. I think the morale the department, I 
think is good if you look at the output. Clearly the U.S. 
attorney situation has not been helpful to the morale of the 
department. But with respect to mistakes that have been 
identified, we have taken steps to address them.
    The fact that there has been changes in personnel, some 
people would say it's a good thing. It's good we have these 
changes, it's good these people have left. Some people like 
Mike Battle you cite in that list, Mike was planning on leaving 
because of personal reasons that had nothing to do with any of 
this. It is unfair to include him in this.
    So I am working as hard as I can to work with the members 
of this committee to make improvements in the Department of 
Justice, responding to Senator Feinstein's earlier comment 
about how after hearing the opening statements of Senator Leahy 
and Senator Specter why I would talk about FIZA.
    The reason I would is I am focused on doing the work of the 
people in this country who care most about making sure their 
country is safe from terrorism, who care most about making sure 
their neighborhoods are safe from gangs and drugs and violent 
crime, and who care most about that their children are 
protected from predators.
    That is what I'm permanently focused on, but I'm also at 
the same time trying to address these problems. I feel that's 
my obligation as Attorney General.
    Senator Whitehouse. Senator Cardin.
    Senator Cardin. Thank you. I want to just raise one, to 
come back to the concerns that I have about selected release of 
information.
    Our responsibility is to do the oversight to make sure that 
things are done according to law, that you are held 
accountable, and that we carry out our responsibilities as a 
legislative branch of government. We need a complete record in 
order to do that.
    My concern is we get selective release of information. 
Today you released some information concerning the 
congressional advice to you in regards to an intelligence 
briefing at the White House.
    My understanding is that the details of those types of 
briefings are classified information that can be released by 
the President. You released information concerning the advice 
given to you by the Congressmen that were there, Senators that 
were there. We don't know who was there, we don't have those 
details. We are not entitled to those details if I understand 
correctly the ground rules for these types of briefings.
    So can you just, first of all, was a conscientious decision 
made to release that information by the White House?
    Attorney General Gonzales. No. There was no approval by the 
White House. Listen. People made statements about my conduct in 
connection with the hospital visit. I think it's important for 
the American people and for this committee to understand the 
context of that visit.
    Senator Cardin. I agree with you completely. But we should 
have all the information. We should have all the information 
with the White House. We should be able to have independent 
review of all the information.
    For example, can we get the details of that briefing 
supplied to this committee?
    Attorney General Gonzales. Senator, you are asking me 
questions that really touch on White House equities, and that 
will be a decision made at the White House, a decision that I 
won't, in most cases will not be able to control.
    Senator Cardin. This committee has gotten selective 
information. The same thing happened to Sara Taylor when she 
was here. She told us information, she said I can't tell you 
anything about my conversations at the White House because we 
have executive Presidential privilege. But however, I can tell 
you things that I think make us look good.
    Attorney General Gonzales. Senator, I don't know if that's 
to be the case or not. My understanding, it appeared--
    Senator Cardin. Review the testimony.
    Attorney General Gonzales [continuing]. That Ms. Taylor was 
trying to be as helpful to the committee as she could, but that 
there were certain lines in which she was--
    Senator Cardin. The problem is she sees it helpful when she 
can advance the cause of the White House. She doesn't think 
it's helpful giving us subjective information to make our own 
judgments.
    It's the same thing about your--we need to get a complete 
record, and we're going to get a complete record. The courts 
are going to ultimately make these judgments.
    I just question, we are trying to find out the details of 
what happened at the hospital, and you give us some information 
about a briefing, and we don't have the rest of it. I just 
think it puts us in a very difficult position.
    You may not have intended that to be the case, but I would 
certainly think that the Attorney General of the United States 
would want to make sure that this committee had a complete 
record, and that we don't have to take just selective 
information on making judgments.
    Attorney General Gonzales. It was certainly my intent to 
make sure the committee had a more complete record than the 
testimony that has been provided in terms of what happened 
during that period.
    Senator Cardin. But you didn't clear your testimony about 
that briefing with anyone in the White House. That was your 
judgment to talk about the briefing?
    Attorney General Gonzales. The White House was advised that 
this is what I was going to be talking about. I did not seek 
their approval, nor did I get guidance in terms of what to say.
    Senator Cardin. Thank you. I don't believe that, let me 
just find out whether the Chairman wants this hearing to 
continue, or if we are all right to do a recess. Oh. The 
committee will stand in brief recess. My understanding is other 
Senators will be returning.
    [Recess from 12:52 p.m. to 12:58 p.m.]
    Chairman Leahy. The audience will be in order, and the 
committee will be back in order.
    For those who spend much time watching Senate procedures, 
we know that we sometimes get interrupted by votes, and I am 
trying to, in this hearing, to a conclusion. Although I express 
my appreciation both to the majority leader and to Senator 
Kennedy for delaying the votes as long as they could.
    Senator Schumer has asked for a little more time. I yield 
to Senator Schumer, and if there are no other questions, that 
will conclude this hearing. Of course all Senators have the 
right to submit questions for the record.
    The witness has the right of course to look at the record, 
and should he want to change or amplify the answers, he can. I 
will be looking at that transcript. You may want to look at it 
very, very carefully.
    Attorney General Gonzales. I will look at it very 
carefully, Mr. Chairman.
    Chairman Leahy. I would recommend you look at it extremely 
carefully.
    Senator Schumer.
    Senator Schumer. Thank you, Mr. Chairman. I appreciate your 
waiting for the votes. I have just a few quick questions that I 
hope you'll be able to answer quickly and concisely.
    First, Mr. Attorney General, at the time you went to Mr. 
Ashcroft's hospital bed, did you know that power had been 
transferred to Jim Comey?
    Attorney General Gonzales. I think that there were 
newspaper accounts, and the fact that Mr. Comey was the Acting 
Attorney General is probably something that I knew of.
    Senator Schumer. Probably you knew of it?
    Attorney General Gonzales. Well, again, sitting here today, 
I can't tell you yes, absolutely I knew. But let me make an 
important point here. The fact that transfer had, let's assume 
that transfer had occurred. There is no governing legal 
principle that says that Mr. Ashcroft if he decided he felt 
better could decide I'm feeling better and I can make this 
decision, and I'm going to make this decision. But to answer 
your question, I--
    Senator Schumer. But you believe you knew?
    Attorney General Gonzales. Yes.
    Senator Schumer. Is that a fair characterization?
    Attorney General Gonzales. I would say that, let's just 
assume that I knew. But again, I'm not sure that's the main 
point.
    Senator Schumer. And at the time you went to Mr. Ashcroft's 
hospital bed, you touched on this. What was your understanding 
of Mr. Ashcroft's authority?
    Attorney General Gonzales. My understanding, sitting here 
today, my understanding is that the main focus was that Mr. 
Comey would be making the decision with respect to this matter.
    Senator Schumer. All right. When you went to the hospital 
room, what was your understanding of Mr. Ashcroft's condition?
    Attorney General Gonzales. I don't know if I can recall 
exactly my understanding. I suspect it was of course that he 
was sick, had had surgery. I may have understood that he was in 
intensive care.
    I may have, from newspaper accounts may have understood in 
fact that he had problems with his pancreas or gallstones or 
something.
    Senator Schumer. Did you know that all visitors had been 
barred by his wife because of how ill he was?
    Attorney General Gonzales. I don't know if I knew that 
subsequently. I certainly have been made aware of the fact that 
she was being very, very careful in terms of who could visit 
with him and who could speak with him.
    Senator Schumer. The facts have come out that all visitors 
were barred by her. Okay.
    Next, do you have documents in your possession reflecting 
the transfer of power or authority from Ashcroft to Comey?
    Attorney General Gonzales. I do have them now, yes.
    Senator Schumer. You didn't have them then?
    Attorney General Gonzales. I don't recall personally having 
them. There is some question, as I understand it, about whether 
they came to the White House and who at the White House had 
them.
    But again, I'll just--
    Senator Schumer. Wouldn't the counsel have gotten such 
documents?
    Attorney General Gonzales. I would think so, yes.
    Senator Schumer. So you probably had them? Would that be 
fair?
    Attorney General Gonzales. I would say that they may have 
come in. I have no recollection of that.
    Senator Schumer. Would you go through your records and 
produce for this committee any documents in your possession at 
that time, or in your offices, the Office of Counsel's 
possession at that time?
    Attorney General Gonzales. I'd be happy to take that back 
and see if that can be done.
    Senator Schumer. Why couldn't it be done?
    Attorney General Gonzales. Well, I don't know, Senator. If 
we can do it, we'll produce it.
    Senator Schumer. Okay. Could you give them to our committee 
by Friday?
    Attorney General Gonzales. We'll certainly do our best.
    Senator Schumer. Thank you. Did you discuss classified 
information in front of Ms. Ashcroft, who did not have a 
security clearance?
    Attorney General Gonzales. It is my recollection that the 
answer to that question is no. General Ashcroft did virtually 
all of the talking, and he did all of the talking with respect 
to the legal issues. I can't, sitting here today, I don't 
believe that he disclosed classified information in the 
hospital room.
    Senator Schumer. Okay. Let me ask you this. Who sent you to 
the hospital?
    Attorney General Gonzales. Senator, what I can say is we 
had had a very important meeting at the White House over one of 
the--
    Senator Schumer. I didn't ask that.
    Attorney General Gonzales. I am answering your question, 
sir, if I could.
    Senator Schumer. Did anyone tell you to go?
    Attorney General Gonzales. It was one of the most important 
programs for the United States. It was important. It had been 
authorized by the President. I'll just say that the Chief of 
Staff to the President of the United States and the counsel of 
the President of the United States went to the hospital on 
behalf of the President of the United States.
    Senator Schumer. Did the President ask you to go?
    Attorney General Gonzales. We were there on behalf of the 
President of the United States.
    Senator Schumer. I didn't ask you that.
    Attorney General Gonzales. I understand that.
    Senator Schumer. Did the President ask you to go?
    Attorney General Gonzales. Senator, we were there on behalf 
of the President of the United States.
    Senator Schumer. Why can't you answer that question?
    Attorney General Gonzales. That's the answer that I can 
give you, Senator.
    Senator Schumer. Well, can you explain to me why you can't 
answer it directly?
    Attorney General Gonzales. Senator, again, we were there on 
an important program for this President on behalf of the 
President of the United States.
    Senator Schumer. Did you talk to the President about it 
beforehand?
    Attorney General Gonzales. Senator, obviously there were a 
lot of discussions that happened during that period of time. 
This involved one of the President's premier programs.
    Senator Schumer. But sir, you are before this committee, 
you are before this committee, you are supposed to answer 
questions. You have not claimed any privilege. I don't think 
there is any here, and I asked you a question and you refuse to 
answer it. Why?
    Attorney General Gonzales. If I can answer the question, I 
will answer the question.
    Senator Schumer. You did that. I know, but could you tell 
me why you can't answer this question?
    Attorney General Gonzales. Senator, because again, this 
relates to activities that existed when I was in the White 
House. Because of that with respect to your specific questions, 
I will go back and see whether or not I can answer the 
question.
    Senator Schumer. Did the Vice President send you?
    Attorney General Gonzales. Again, Senator, we were there on 
behalf of the President.
    Senator Schumer. Did you talk to the Vice President about 
it?
    Attorney General Gonzales. We were there on behalf of the 
President, sir.
    Senator Schumer. You will not answer that question as well, 
is that correct?
    Attorney General Gonzales. We were there on behalf--I'd be 
happy to take back your question, and if we can respond to it, 
we will.
    Senator Schumer. Okay. Now, you kept referring to this 
meeting of the gang of eight. Did any member of the gang of 
eight direct you to go Ashcroft's hospital bed?
    Attorney General Gonzales. No. In fact, I'm not sure--
    Senator Schumer. Was there any discussion--
    Attorney General Gonzales. No. I'm not sure that they knew 
that we went.
    Senator Schumer. So they had no knowledge you were doing 
that?
    Attorney General Gonzales. Let me put it this way. I did 
not tell them that we were going to do it.
    Senator Schumer. Okay. Did every member of the gang of 
eight know that Comey, Ashcroft, and Muller and others were 
prepared to resign over the program?
    Attorney General Gonzales. Well, first of all, I'm not 
aware that that is true, that saying is true. But in terms of, 
I'm not sure that we got into discussions about any 
resignations. The discussions centered on the fact that Mr. 
Comey was unwilling to authorize the continuation of this very 
important intelligence activity, and that we were there to seek 
help from Congress for legislation.
    Senator Schumer. Understood. But you didn't, did they know 
that there was dissent within the administration on this, 
within the Justice Department?
    Attorney General Gonzales. I was pretty clear, quite 
frankly, in making sure that they understood that the Deputy 
Attorney General did not believe that the President had the 
authority to authorize these activities.
    I tried to paint--I didn't want to be accused in any way of 
not presenting in the most forceful way that I could the 
disagreement that existed. So I, yes, I think that they 
understood that there was serious dissent.
    Senator Schumer. Okay. But you testified to us that you 
didn't believe there was serious dissent on the program that 
the President authorized, and now you're saying they knew of 
the dissent, and you didn't?
    Attorney General Gonzales. The dissent related to other 
intelligence activities. The dissent was not about the 
terrorist surveillance program.
    Senator Schumer. So if we asked the eight who were there, 
they would say that's the case? Would they say that? Would they 
say it was not about the TSP? That it was about other issues? I 
thought you just testified that you brought them to talk about 
that issue because you needed legislation.
    Attorney General Gonzales. I can't tell you what they would 
say if you asked them the questions, sir. I'm just telling you 
what I recall.
    Senator Schumer. Sir, we're back in the same conundrum as 
always. It just doesn't seem that you're leveling here with the 
American people or the committee.
    Attorney General Gonzales. I don't see how I can be more 
clear.
    Senator Schumer. Sir, you said that they knew that there 
was dissent. But when you testified before us, you said there 
has not been any serious disagreement and it's about the same--
it's about the same exact--you said the President authorized 
only one before.
    The discussion, you see, it defies credulity to believe 
that the discussion with Attorney General Ashcroft or with his 
group of eight, which we can check on, and I hope we will, Mr. 
Chairman, that will be yours--was about nothing other than TSP. 
If it was about the TSP, you are--to this committee.
    Now, was it about the TSP or not, the discussion on the 
8th?
    Attorney General Gonzales. The disagreement on the 10th was 
about other intelligence activities.
    Senator Schumer. Not about the TSP? Yes or no.
    Attorney General Gonzales. The disagreement and the reason 
we had to go to the hospital had to do with other intelligence 
activity.
    Senator Schumer. Not the TSP? Come on. If you say it's 
about other, that implies not. Now say it or not.
    Attorney General Gonzales. It was about other intelligence 
activities.
    Senator Schumer. Was it about the TSP? Yes or no, please. 
That is vital to whether you are telling the truth to this 
committee.
    Attorney General Gonzales. It was about other intelligence 
activities.
    Senator Schumer. Okay. All right. Let me ask you this. Did 
the gang of eight have access to the Office of Legal Counsel 
opinions expressing concerns about the program's legality?
    Did they know that the Justice Department Office in charge 
of saying whether this program was legal or not said it's not?
    Attorney General Gonzales. In essence, what they understood 
was that the Department of Justice, Mr. Comey, was unwilling to 
approve the continuation of these intelligence activities.
    Senator Schumer. I know that. Did they have any access, 
you're having a discussion here, you are asking them to approve 
new legislation. Don't you think it would be extremely logical 
and fair to tell them that the Office of Legal Counsel 
disagreed?
    Attorney General Gonzales. I think it would be equally 
logical for them to assume that if the Deputy Attorney General 
took that position, that perhaps the Office of Legal Counsel 
might also have that same position.
    Senator Schumer. All right. I know the Chairman wants to 
wrap up, and I appreciate that. Just one other quick question 
here.
    Senator Leahy, Chairman Leahy and Senator Specter and I 
have discussed some idea, that would have to go ahead with 
this, of having the special prosecutor, Patrick Fitzgerald, 
come testify before the committee.
    Now, just last week on July 17th, the department made 
available to the committee Texas U.S. attorney Johnny Sutton, 
who is in the exact same position as Fitzgerald is. In other 
words, Sutton testified at length about the case, about border 
agents Ramos and Campion. In that case, as in this, the trial 
is over, and in that case, as in this, there are appeals 
pending.
    Mr. Sutton testified about issues that will not affect the 
appeal. So my question to you is should this committee, and 
that decision is not mine, but should this committee, and given 
the public interest in this case, wish to bring Patrick 
Fitzgerald before us, would you have any objection?
    Attorney General Gonzales. Senator, you know, I am recused 
from Mr. Fitzgerald's investigation. So I'm not sure that I'd 
be in a position to say one way or the other.
    Senator Schumer. Who would make that decision?
    Attorney General Gonzales. It would be the Deputy Attorney 
General.
    Senator Schumer. So the Acting Deputy Attorney General 
would make that decision?
    Attorney General Gonzales. No, the Deputy Attorney General, 
Paul McNulty.
    Senator Schumer. Paul McNulty. Okay. But you are not going 
to opine whether that would be okay?
    Attorney General Gonzales. I don't believe so. Again, I was 
recused from that investigation.
    Senator Schumer. Okay. Thank you, Mr. Chairman.
    Chairman Leahy. Senator Specter.
    Senator Specter. Just a few concluding comments. Attorney 
General Gonzales, I would ask you to take a close look at the 
functioning of your department, or perhaps consult with others 
to give you an objective view as to what is happening.
    The consensus appears to be that the morale is at an all 
time low from what has happened. The U.S. attorneys around the 
country don't know when the next shoe is going to drop, 
although perhaps replacements or requests for resignations have 
been tempered to slow down and perhaps even eliminated because 
of the focus of this committee's inquiry.
    But I would ask you to take a look at that morale issue.
    Attorney General Gonzales. I will do so.
    Senator Specter. And then I'd ask you to take a look at how 
the department is functioning generally. I mentioned the 
Oxycontin case only because it received a lot of newspaper 
publicity.
    The case involving the homicide where you asked for the 
death penalty also received a lot of publicity. But it looks to 
me candidly, Attorney General Gonzales, as if the department is 
dysfunctional.
    When you have many people killed and many people addicted 
from a dangerous drug where there is malicious misleading of 
the consumers, that constitutes malice. That is criminal 
conduct.
    The profits that are made from these drugs are in the 
billions. So when you have even $600 million, I don't know all 
the details, and this committee can't possibly run your 
department. We can't possibly run your department.
    I know you are recused technically, but you are still the 
Attorney General. We really ought to reach an accommodation 
with the administration on finishing up this investigation.
    I think you would obviously be as anxious to have it 
finished as anyone, perhaps more so. We have made concessions 
to what the President has proposed, and I wrote to White House 
counsel. You're not White House counsel anymore, and talked to 
Mr. Fielding about a meeting where Chairman Conyers, Chairman 
Leahy and I might talk to the President. I found dealing with 
the President would move above the levers of bureaucracy to be 
able to come to conclusions and come to judgments.
    The transcript issue seems to me fundamental. I don't know 
why any witness would want to appear before a committee on an 
informal basis and not have a transcript so that someone might 
contend at a later time that a false official statement was 
made which carries the same penalty as perjury, 5 years. I 
don't know why anyone would want that.
    But if they insist on it, I'd even take that. I think that 
John Conyers and Pat Leahy and Chuck Schumer and Arnold Specter 
and others could find out a lot of information, even on an 
informal basis. But I won't give up the Senate's right to 
pursue a subpoena if we feel it necessary.
    We cannot delegate that. I think back to the great 
attorneys general in our history. Edmond Randolph, Washington's 
attorney general, Harlen Fisk Stone, later Chief Justice of the 
Supreme Court, Robert Jackson, FDR's attorney general, still 
citing his opinions on a wide variety of subjects.
    I would just ask you to consider the interest of the 
Department of Justice and the interest of the American people, 
because your department, next to the Department of Defense, is 
the most important department in the government. Thank you, Mr. 
Chairman.
    Chairman Leahy. Thank you, Senator Specter. I find this 
frustrating. I have a lot more questions, and I find it so 
difficult to get answers, I may or may not submit them for the 
record.
    But I think the tragic thing here is the ongoing crisis in 
the ongoing crisis of leadership of the Justice Department is 
the undermining of good people in the crucial work the 
department does.
    There are thousands of honest, hard working prosecutors and 
civil servants. They work every day. They deter crime or 
prevent crime or uncover crime.
    I know in my years as a prosecutor, the admiration I had 
for them. I've worked with them for decades since, both 
Republican and Democratic administrations, the professionals, 
the career people.
    I have never had any one of them say anything to me that 
indicates one way or the other what their political feelings 
are. I just got straight answers.
    But I, you say morale is good. It is not, and I'm not 
trying to put words in your mouth. Let me just say this. You 
come here seeking our trust. Frankly, Mr. Attorney General, 
you've lost mine. You've lost mine. This is something I have 
never said to any cabinet member before, even some of whom I've 
disagreed with greatly.
    I hope you can regain the trust of the hardworking men and 
women who are at the department. They deserve better. Now, once 
a government shows a disregard for the independence of the 
justice system and the rule of law, it is very hard to restore 
people's faith.
    Any prosecutor will tell you when they go into court, they 
carry with them the credibility of their office. If that 
credibility is lost, it's an uphill battle the whole way 
through.
    This Committee will do its best to try to restore 
independence and accountability, and commitment to the rule of 
law, to the operations of the Justice Department. I'll be 
joined by a lot of the Senators, Republican and Democratic.
    I take no pleasure in saying this, but I am seriously 
gravely disappointed. Thank you. If you wish to say something--
then we stand adjourned.
    [Whereupon, at 1:19 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]
[GRAPHIC] [TIFF OMITTED] T8236.145

[GRAPHIC] [TIFF OMITTED] T8236.146

[GRAPHIC] [TIFF OMITTED] T8236.147

[GRAPHIC] [TIFF OMITTED] T8236.148

[GRAPHIC] [TIFF OMITTED] T8236.149

[GRAPHIC] [TIFF OMITTED] T8236.150

[GRAPHIC] [TIFF OMITTED] T8236.151

[GRAPHIC] [TIFF OMITTED] T8236.152

[GRAPHIC] [TIFF OMITTED] T8236.153

[GRAPHIC] [TIFF OMITTED] T8236.154

[GRAPHIC] [TIFF OMITTED] T8236.155

[GRAPHIC] [TIFF OMITTED] T8236.156

[GRAPHIC] [TIFF OMITTED] T8236.157

[GRAPHIC] [TIFF OMITTED] T8236.158

[GRAPHIC] [TIFF OMITTED] T8236.159

[GRAPHIC] [TIFF OMITTED] T8236.160

[GRAPHIC] [TIFF OMITTED] T8236.161

[GRAPHIC] [TIFF OMITTED] T8236.162

[GRAPHIC] [TIFF OMITTED] T8236.163

[GRAPHIC] [TIFF OMITTED] T8236.164

[GRAPHIC] [TIFF OMITTED] T8236.165

[GRAPHIC] [TIFF OMITTED] T8236.166

[GRAPHIC] [TIFF OMITTED] T8236.167

[GRAPHIC] [TIFF OMITTED] T8236.168

[GRAPHIC] [TIFF OMITTED] T8236.169

[GRAPHIC] [TIFF OMITTED] T8236.170

[GRAPHIC] [TIFF OMITTED] T8236.171

[GRAPHIC] [TIFF OMITTED] T8236.172

[GRAPHIC] [TIFF OMITTED] T8236.173

[GRAPHIC] [TIFF OMITTED] T8236.174

[GRAPHIC] [TIFF OMITTED] T8236.175

[GRAPHIC] [TIFF OMITTED] T8236.176

[GRAPHIC] [TIFF OMITTED] T8236.177

[GRAPHIC] [TIFF OMITTED] T8236.178

[GRAPHIC] [TIFF OMITTED] T8236.179

[GRAPHIC] [TIFF OMITTED] T8236.180

[GRAPHIC] [TIFF OMITTED] T8236.181

[GRAPHIC] [TIFF OMITTED] T8236.182

[GRAPHIC] [TIFF OMITTED] T8236.183

[GRAPHIC] [TIFF OMITTED] T8236.184

[GRAPHIC] [TIFF OMITTED] T8236.185

[GRAPHIC] [TIFF OMITTED] T8236.186

[GRAPHIC] [TIFF OMITTED] T8236.187

[GRAPHIC] [TIFF OMITTED] T8236.188

[GRAPHIC] [TIFF OMITTED] T8236.189

[GRAPHIC] [TIFF OMITTED] T8236.190

[GRAPHIC] [TIFF OMITTED] T8236.191

[GRAPHIC] [TIFF OMITTED] T8236.192

[GRAPHIC] [TIFF OMITTED] T8236.193

[GRAPHIC] [TIFF OMITTED] T8236.194

[GRAPHIC] [TIFF OMITTED] T8236.195

[GRAPHIC] [TIFF OMITTED] T8236.196

[GRAPHIC] [TIFF OMITTED] T8236.197

[GRAPHIC] [TIFF OMITTED] T8236.198

[GRAPHIC] [TIFF OMITTED] T8236.199

[GRAPHIC] [TIFF OMITTED] T8236.200

[GRAPHIC] [TIFF OMITTED] T8236.201

[GRAPHIC] [TIFF OMITTED] T8236.202

[GRAPHIC] [TIFF OMITTED] T8236.203

[GRAPHIC] [TIFF OMITTED] T8236.204

[GRAPHIC] [TIFF OMITTED] T8236.205

[GRAPHIC] [TIFF OMITTED] T8236.206

[GRAPHIC] [TIFF OMITTED] T8236.207

[GRAPHIC] [TIFF OMITTED] T8236.208

[GRAPHIC] [TIFF OMITTED] T8236.209

[GRAPHIC] [TIFF OMITTED] T8236.210

[GRAPHIC] [TIFF OMITTED] T8236.211

[GRAPHIC] [TIFF OMITTED] T8236.212

[GRAPHIC] [TIFF OMITTED] T8236.213

[GRAPHIC] [TIFF OMITTED] T8236.214

[GRAPHIC] [TIFF OMITTED] T8236.215

[GRAPHIC] [TIFF OMITTED] T8236.216

[GRAPHIC] [TIFF OMITTED] T8236.217

[GRAPHIC] [TIFF OMITTED] T8236.218

[GRAPHIC] [TIFF OMITTED] T8236.219

[GRAPHIC] [TIFF OMITTED] T8236.220

[GRAPHIC] [TIFF OMITTED] T8236.221

[GRAPHIC] [TIFF OMITTED] T8236.222

[GRAPHIC] [TIFF OMITTED] T8236.223

[GRAPHIC] [TIFF OMITTED] T8236.224

[GRAPHIC] [TIFF OMITTED] T8236.225

[GRAPHIC] [TIFF OMITTED] T8236.226

[GRAPHIC] [TIFF OMITTED] T8236.227

[GRAPHIC] [TIFF OMITTED] T8236.228

[GRAPHIC] [TIFF OMITTED] T8236.229

[GRAPHIC] [TIFF OMITTED] T8236.230

[GRAPHIC] [TIFF OMITTED] T8236.231

[GRAPHIC] [TIFF OMITTED] T8236.232

[GRAPHIC] [TIFF OMITTED] T8236.233

[GRAPHIC] [TIFF OMITTED] T8236.234

[GRAPHIC] [TIFF OMITTED] T8236.235

[GRAPHIC] [TIFF OMITTED] T8236.236

[GRAPHIC] [TIFF OMITTED] T8236.237

[GRAPHIC] [TIFF OMITTED] T8236.238

[GRAPHIC] [TIFF OMITTED] T8236.239

[GRAPHIC] [TIFF OMITTED] T8236.240

[GRAPHIC] [TIFF OMITTED] T8236.241

[GRAPHIC] [TIFF OMITTED] T8236.242

[GRAPHIC] [TIFF OMITTED] T8236.243

[GRAPHIC] [TIFF OMITTED] T8236.244

[GRAPHIC] [TIFF OMITTED] T8236.245

[GRAPHIC] [TIFF OMITTED] T8236.246

[GRAPHIC] [TIFF OMITTED] T8236.247

[GRAPHIC] [TIFF OMITTED] T8236.248

[GRAPHIC] [TIFF OMITTED] T8236.249

[GRAPHIC] [TIFF OMITTED] T8236.250

[GRAPHIC] [TIFF OMITTED] T8236.251

[GRAPHIC] [TIFF OMITTED] T8236.252

[GRAPHIC] [TIFF OMITTED] T8236.253

[GRAPHIC] [TIFF OMITTED] T8236.254

[GRAPHIC] [TIFF OMITTED] T8236.255

[GRAPHIC] [TIFF OMITTED] T8236.256

[GRAPHIC] [TIFF OMITTED] T8236.257

[GRAPHIC] [TIFF OMITTED] T8236.258

[GRAPHIC] [TIFF OMITTED] T8236.259

[GRAPHIC] [TIFF OMITTED] T8236.260

[GRAPHIC] [TIFF OMITTED] T8236.261

[GRAPHIC] [TIFF OMITTED] T8236.262

[GRAPHIC] [TIFF OMITTED] T8236.263

[GRAPHIC] [TIFF OMITTED] T8236.264

[GRAPHIC] [TIFF OMITTED] T8236.265

[GRAPHIC] [TIFF OMITTED] T8236.266

[GRAPHIC] [TIFF OMITTED] T8236.267

[GRAPHIC] [TIFF OMITTED] T8236.268

[GRAPHIC] [TIFF OMITTED] T8236.269

[GRAPHIC] [TIFF OMITTED] T8236.270

[GRAPHIC] [TIFF OMITTED] T8236.271

[GRAPHIC] [TIFF OMITTED] T8236.272

[GRAPHIC] [TIFF OMITTED] T8236.273

[GRAPHIC] [TIFF OMITTED] T8236.274

[GRAPHIC] [TIFF OMITTED] T8236.275

[GRAPHIC] [TIFF OMITTED] T8236.276

[GRAPHIC] [TIFF OMITTED] T8236.277

[GRAPHIC] [TIFF OMITTED] T8236.278

[GRAPHIC] [TIFF OMITTED] T8236.279

[GRAPHIC] [TIFF OMITTED] T8236.280

[GRAPHIC] [TIFF OMITTED] T8236.281

[GRAPHIC] [TIFF OMITTED] T8236.282

[GRAPHIC] [TIFF OMITTED] T8236.283

[GRAPHIC] [TIFF OMITTED] T8236.284

[GRAPHIC] [TIFF OMITTED] T8236.285

[GRAPHIC] [TIFF OMITTED] T8236.286

[GRAPHIC] [TIFF OMITTED] T8236.287

[GRAPHIC] [TIFF OMITTED] T8236.288

[GRAPHIC] [TIFF OMITTED] T8236.289

[GRAPHIC] [TIFF OMITTED] T8236.290

[GRAPHIC] [TIFF OMITTED] T8236.291

[GRAPHIC] [TIFF OMITTED] T8236.292

[GRAPHIC] [TIFF OMITTED] T8236.293

[GRAPHIC] [TIFF OMITTED] T8236.294

[GRAPHIC] [TIFF OMITTED] T8236.295

[GRAPHIC] [TIFF OMITTED] T8236.296

[GRAPHIC] [TIFF OMITTED] T8236.297

[GRAPHIC] [TIFF OMITTED] T8236.298

[GRAPHIC] [TIFF OMITTED] T8236.299

[GRAPHIC] [TIFF OMITTED] T8236.300

[GRAPHIC] [TIFF OMITTED] T8236.301

[GRAPHIC] [TIFF OMITTED] T8236.302

[GRAPHIC] [TIFF OMITTED] T8236.303

[GRAPHIC] [TIFF OMITTED] T8236.304

[GRAPHIC] [TIFF OMITTED] T8236.305

[GRAPHIC] [TIFF OMITTED] T8236.306

[GRAPHIC] [TIFF OMITTED] T8236.307

[GRAPHIC] [TIFF OMITTED] T8236.308

[GRAPHIC] [TIFF OMITTED] T8236.309

[GRAPHIC] [TIFF OMITTED] T8236.310

[GRAPHIC] [TIFF OMITTED] T8236.311

[GRAPHIC] [TIFF OMITTED] T8236.312

[GRAPHIC] [TIFF OMITTED] T8236.313

[GRAPHIC] [TIFF OMITTED] T8236.314

[GRAPHIC] [TIFF OMITTED] T8236.315

[GRAPHIC] [TIFF OMITTED] T8236.316

[GRAPHIC] [TIFF OMITTED] T8236.317

[GRAPHIC] [TIFF OMITTED] T8236.318

[GRAPHIC] [TIFF OMITTED] T8236.319

[GRAPHIC] [TIFF OMITTED] T8236.320

[GRAPHIC] [TIFF OMITTED] T8236.321

[GRAPHIC] [TIFF OMITTED] T8236.322

[GRAPHIC] [TIFF OMITTED] T8236.323

[GRAPHIC] [TIFF OMITTED] T8236.324

[GRAPHIC] [TIFF OMITTED] T8236.325

[GRAPHIC] [TIFF OMITTED] T8236.326

[GRAPHIC] [TIFF OMITTED] T8236.327

[GRAPHIC] [TIFF OMITTED] T8236.328

[GRAPHIC] [TIFF OMITTED] T8236.329

[GRAPHIC] [TIFF OMITTED] T8236.330

[GRAPHIC] [TIFF OMITTED] T8236.331

[GRAPHIC] [TIFF OMITTED] T8236.332

[GRAPHIC] [TIFF OMITTED] T8236.333

[GRAPHIC] [TIFF OMITTED] T8236.334

[GRAPHIC] [TIFF OMITTED] T8236.335

[GRAPHIC] [TIFF OMITTED] T8236.336

[GRAPHIC] [TIFF OMITTED] T8236.337

[GRAPHIC] [TIFF OMITTED] T8236.338

[GRAPHIC] [TIFF OMITTED] T8236.339

[GRAPHIC] [TIFF OMITTED] T8236.340

[GRAPHIC] [TIFF OMITTED] T8236.341

[GRAPHIC] [TIFF OMITTED] T8236.342

[GRAPHIC] [TIFF OMITTED] T8236.343

[GRAPHIC] [TIFF OMITTED] T8236.344

[GRAPHIC] [TIFF OMITTED] T8236.345

[GRAPHIC] [TIFF OMITTED] T8236.346

[GRAPHIC] [TIFF OMITTED] T8236.347

[GRAPHIC] [TIFF OMITTED] T8236.348

[GRAPHIC] [TIFF OMITTED] T8236.349

[GRAPHIC] [TIFF OMITTED] T8236.350

[GRAPHIC] [TIFF OMITTED] T8236.351

[GRAPHIC] [TIFF OMITTED] T8236.352

[GRAPHIC] [TIFF OMITTED] T8236.353

[GRAPHIC] [TIFF OMITTED] T8236.354

[GRAPHIC] [TIFF OMITTED] T8236.355

[GRAPHIC] [TIFF OMITTED] T8236.356

[GRAPHIC] [TIFF OMITTED] T8236.357

[GRAPHIC] [TIFF OMITTED] T8236.358

[GRAPHIC] [TIFF OMITTED] T8236.359

[GRAPHIC] [TIFF OMITTED] T8236.360

[GRAPHIC] [TIFF OMITTED] T8236.361

[GRAPHIC] [TIFF OMITTED] T8236.362

[GRAPHIC] [TIFF OMITTED] T8236.363

[GRAPHIC] [TIFF OMITTED] T8236.364

[GRAPHIC] [TIFF OMITTED] T8236.365

[GRAPHIC] [TIFF OMITTED] T8236.366

[GRAPHIC] [TIFF OMITTED] T8236.367

[GRAPHIC] [TIFF OMITTED] T8236.368

[GRAPHIC] [TIFF OMITTED] T8236.369

[GRAPHIC] [TIFF OMITTED] T8236.370

[GRAPHIC] [TIFF OMITTED] T8236.371

[GRAPHIC] [TIFF OMITTED] T8236.372

[GRAPHIC] [TIFF OMITTED] T8236.373

[GRAPHIC] [TIFF OMITTED] T8236.374

[GRAPHIC] [TIFF OMITTED] T8236.375

[GRAPHIC] [TIFF OMITTED] T8236.376

[GRAPHIC] [TIFF OMITTED] T8236.377

[GRAPHIC] [TIFF OMITTED] T8236.378

[GRAPHIC] [TIFF OMITTED] T8236.379

[GRAPHIC] [TIFF OMITTED] T8236.380

[GRAPHIC] [TIFF OMITTED] T8236.381

[GRAPHIC] [TIFF OMITTED] T8236.382

[GRAPHIC] [TIFF OMITTED] T8236.383

[GRAPHIC] [TIFF OMITTED] T8236.384

[GRAPHIC] [TIFF OMITTED] T8236.385

[GRAPHIC] [TIFF OMITTED] T8236.386

[GRAPHIC] [TIFF OMITTED] T8236.387

[GRAPHIC] [TIFF OMITTED] T8236.388

[GRAPHIC] [TIFF OMITTED] T8236.389

[GRAPHIC] [TIFF OMITTED] T8236.390

[GRAPHIC] [TIFF OMITTED] T8236.391

[GRAPHIC] [TIFF OMITTED] T8236.392

[GRAPHIC] [TIFF OMITTED] T8236.393

[GRAPHIC] [TIFF OMITTED] T8236.394

[GRAPHIC] [TIFF OMITTED] T8236.395

[GRAPHIC] [TIFF OMITTED] T8236.396

[GRAPHIC] [TIFF OMITTED] T8236.397

[GRAPHIC] [TIFF OMITTED] T8236.398

[GRAPHIC] [TIFF OMITTED] T8236.399

[GRAPHIC] [TIFF OMITTED] T8236.400

[GRAPHIC] [TIFF OMITTED] T8236.401

[GRAPHIC] [TIFF OMITTED] T8236.402

[GRAPHIC] [TIFF OMITTED] T8236.403

[GRAPHIC] [TIFF OMITTED] T8236.404

[GRAPHIC] [TIFF OMITTED] T8236.405

[GRAPHIC] [TIFF OMITTED] T8236.406

[GRAPHIC] [TIFF OMITTED] T8236.407

[GRAPHIC] [TIFF OMITTED] T8236.408

[GRAPHIC] [TIFF OMITTED] T8236.409

[GRAPHIC] [TIFF OMITTED] T8236.410

[GRAPHIC] [TIFF OMITTED] T8236.411

[GRAPHIC] [TIFF OMITTED] T8236.116

[GRAPHIC] [TIFF OMITTED] T8236.117

[GRAPHIC] [TIFF OMITTED] T8236.118

[GRAPHIC] [TIFF OMITTED] T8236.119

[GRAPHIC] [TIFF OMITTED] T8236.120

[GRAPHIC] [TIFF OMITTED] T8236.121

[GRAPHIC] [TIFF OMITTED] T8236.122

[GRAPHIC] [TIFF OMITTED] T8236.123

[GRAPHIC] [TIFF OMITTED] T8236.124

[GRAPHIC] [TIFF OMITTED] T8236.125

[GRAPHIC] [TIFF OMITTED] T8236.126

[GRAPHIC] [TIFF OMITTED] T8236.127

[GRAPHIC] [TIFF OMITTED] T8236.128

[GRAPHIC] [TIFF OMITTED] T8236.129

[GRAPHIC] [TIFF OMITTED] T8236.130

[GRAPHIC] [TIFF OMITTED] T8236.131

[GRAPHIC] [TIFF OMITTED] T8236.132

[GRAPHIC] [TIFF OMITTED] T8236.133

[GRAPHIC] [TIFF OMITTED] T8236.134

[GRAPHIC] [TIFF OMITTED] T8236.135

[GRAPHIC] [TIFF OMITTED] T8236.136

[GRAPHIC] [TIFF OMITTED] T8236.137

[GRAPHIC] [TIFF OMITTED] T8236.138

[GRAPHIC] [TIFF OMITTED] T8236.139

[GRAPHIC] [TIFF OMITTED] T8236.140

[GRAPHIC] [TIFF OMITTED] T8236.141

[GRAPHIC] [TIFF OMITTED] T8236.142

[GRAPHIC] [TIFF OMITTED] T8236.143

[GRAPHIC] [TIFF OMITTED] T8236.144

                                 
