[Congressional Record (Bound Edition), Volume 153 (2007), Part 6]
[Senate]
[Pages 7587-7589]
[From the U.S. Government Publishing Office, www.gpo.gov]




                        FIRING OF U.S. ATTORNEYS

  Mr. ALEXANDER. Madam President, my late friend Alex Haley, the author 
of Roots, lived his life by 6 words: ``Find the Good and Praise It.'' I 
thought of those 6 words in connection with the current discussion 
about the firing of 8 United States Attorneys.
  The Democrats are making political hay out of these firings at a time 
when the Senate should be focused on Iraq, terrorism, health care 
costs, excessive federal spending, energy independence and keeping our 
brainpower advantage so we can keep our good jobs here instead of 
seeing them move overseas.
  U.S. Attorneys have always been political appointees serving at the 
pleasure of the president. President Clinton fired them all on his 
first day in office. Such partisanship is nothing new. Former Attorney 
General Griffin Bell recently said that the custom once was for U.S. 
attorneys simply to vacate their offices on the day a new president was 
inaugurated, knowing that new political appointees would soon arrive to 
take their desks.
  In the summer of 1963, in between my first and second year at New 
York University Law School, I worked in Attorney General Robert 
Kennedy's office as an intern. I was so impressed that, after 
graduation, I drove to Chattanooga to apply for a job as an Assistant 
U.S. Attorney. The interview went fine until the U.S. Attorney for the 
Eastern District of Tennessee asked about my politics.
  ``I'm a Republican,'' I said.
  ``Sorry,'' he said, ``We only hire Democrats.''
  ``But the Attorney General said the administration of justice was 
non-partisan,'' I replied.
  ``That word hasn't gotten down here,'' the U.S. Attorney said.
  Yet the historic political nature of these appointments is no excuse 
for the excessive partisanship, amateurishness and bumbling exhibited 
by the firing of these eight U.S. Attorneys in the middle of the 
President's term. The best way to put in relief what is wrong with 
these firings is to remember Alex Haley's admonition, ``Find the Good 
and Praise It,'' and point to an example of how political appointees 
can by their courageous action earn respect for the administration of 
justice.
  I have a personal interest in the example I offer. Nearly 30 years 
ago--on January 17, 1979--I was sworn into office 3 days early as 
Governor of Tennessee in order to prevent the incumbent Governor from 
issuing 52 pardons and commutations to prisoners the FBI believed had 
paid cash for their release.
  The U.S. Attorney for the Middle District of Tennessee, Hal Hardin--a 
Democrat appointed by President Carter--telephoned to ask me to take 
office early. Hardin was working with the State attorney general, 
William Leech, another Democrat, to arrange the unprecedented early 
swearing-in. Because Hardin and Leech were able to rise above 
partisanship, the Speakers of the Senate and House and Chief Justice as 
well as the Secretary of State--also all Democrats--participated in my 
early swearing-in and the ouster of a Democratic incumbent Governor.
  As it turned out, I was the only Republican in the group.
  As then-Speaker of the House and later Governor Ned McWherter said, 
``We are Tennesseans first.''
  The story of January 17, 1979 was recently retold by Judge William C. 
Koch, Jr., a member of the Tennessee Court of Appeals, in the March 
2007 issue of the Nashville Bar Journal. Judge Koch was on the staff of 
the State attorney general at that time and later was counsel when I 
was Governor.
  In the spirit of ``Find the Good and Praise It,'' I offer for the 
Record Judge Koch's article as an example of how our system of 
political appointment of U.S. Attorneys can and should operate, in 
contrast to the example of the 8 firings and the response to those 
firings that we are discussing today.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

              [From the Nashville Bar Journal, Mar. 2007]

                      They Were Tennesseans First

                    (By Judge William C. Koch, Jr.)

       Cries of ``let's kill all the lawyers'' have been heard 
     ever since Shakespeare wrote Henry VI. Some believe that 
     lawyers and judges have caused--or at least contributed to--
     most of society's ills. Because the legal profession provides 
     such a convenient target, lawyer-bashing remains fashionable 
     in some circles.
       Despite the din of criticism, the truth is that our nation 
     has looked to lawyers for guidance and leadership in times of 
     crisis. An appellate lawyer from Virginia wrote the 
     Declaration of Independence. A trial lawyer from Illinois 
     signed the Emancipation Proclamation. A former criminal 
     prosecutor led the citizens of New York during the dark days 
     following the destruction of the Twin Towers. And it was a 
     Tennessee lawyer who, as a member of the Senate Watergate 
     Committee, helped establish that not even the

[[Page 7588]]

     President of the United States is above the law.
       Lawyers and the courts have also been instrumental in 
     facilitating orderly transitions of governmental power in 
     times of controversy and unrest. Most recently, the nation 
     and the world looked on as lawyers and courts resolved the 
     legal disputes surrounding the 2000 presidential election. 
     Almost thirty years ago, two Tennessee lawyers orchestrated 
     one of this country's most unique transitions of governmental 
     power right here in Tennessee. My purpose is to recount some 
     of what Hal Hardin and Bill Leech did in less than twenty-
     four hours on Wednesday, January 17, 1979.
       Governor Ray Blanton's administration was clouded by 
     controversy from its very beginning in January 1975. Many of 
     these controversies involved state prisoners. In October 
     1976, a rumored federal ``clemency for cash'' investigation 
     made front page headlines when FBI agents raided the office 
     of Governor Blanton's lawyer and seized over one hundred 
     files. In August 1977, the Governor fired Marie Ragghianti, 
     his hand-picked chairman of the parole board. Ms. Rigghianti 
     hired Fred Thompson, and litigation followed.
       Perhaps the most notorious controversy involved Roger 
     Humphreys, the son of one of Governor Blanton's political 
     allies, who had been convicted in 1975 of murdering his 
     former wife and her boyfriend. Humphreys shot his two victims 
     eighteen times with a two-shot derringer. Governor Blanton 
     arranged for Humphreys to become a trustee and then gave him 
     a job as a state photographer. When questioned, the governor 
     insisted that Humphreys was ``a fine young man'' and bragged 
     that he planned to pardon Humphreys before he left office.
       The reaction to Governor Blanton's promise to pardon Roger 
     Humphreys was swift and furious. The Tennessee House of 
     Representatives passed HJR 271 urging Governor Blanton not to 
     pardon him. A bipartisan committee, chaired by former 
     Governor Winfield Dunn, a Republican, and John Jay Hooker, a 
     prominent Democrat, started a statewide petition drive to 
     urge the Governor not to pardon Humphreys. Governor Blanton 
     announced on the eve of the 1978 general election that 
     ``after prayerful consideration'' he would not pardon 
     Humphreys. However, two weeks after the election, Governor 
     Blanton announced that he had changed his mind and that he 
     was again considering a pardon for Humphreys.
       The public's outrage increased during December 1978. The 
     FBI arrested Governor Blanton's lawyer in his office at the 
     Capitol and charged him with selling pardons. The lawyer had 
     clemency papers and marked money in his possession when we 
     was arrested. One week later, Governor Blanton appeared 
     before a federal grand jury and proclaimed as he was leaving 
     the courthouse, ``I have nothing to hide.''
       Governor Blanton's activities eventually prompted Senator 
     Victor Ashe, a Republican from Knoxville, to ask William M. 
     Leech, Jr., Tennessee's new Attorney General, to decide 
     whether the governor-elect could become governor before the 
     inauguration set by the legislature for January 20, 1979. 
     While Bill Leech, a populist Democrat from Santa Fe, had been 
     in the eye of the storm before, he did not relish answering 
     this question. On January 3, 1979, his office issued Opinion 
     No. 79-3 concluding that Republican Governor-elect Lamar 
     Alexander could take the oath of office and become governor 
     any time after midnight on January 15, 1979. General Leech 
     decided against releasing the opinion to the public 
     immediately.
       On January 5, 1979, Governor Blanton confirmed that he had 
     been notified that he was a target of the federal grand jury 
     ``clemency for cash'' investigation. In addition, the United 
     States Attorney for the Middle District of Tennessee sent a 
     letter to the parole board identifying twenty-six prisoners 
     who were implicated in the growing ``clemency for cash'' 
     investigation. Despite these developments, Governor Blanton 
     continued to joke with the press about his plans to pardon 
     Roger Humphreys.
       Even though the Attorney General's opinion was not released 
     to the public until January 15, 1979, rumors about the 
     possibility of an early swearing-in began to circulate on 
     Capitol Hill. Speaker of the House Ned Ray McWherter 
     confirmed that the General Assembly might inaugurate the 
     Governor-elect early if Governor Blanton issued any mass 
     commutations. Lamar Alexander, an accomplished lawyer 
     himself, downplayed the Attorney General's opinion. After 
     consulting privately with the Speaker McWherter and 
     Lieutenant Governor John Wilder, he stated that it would be 
     ``totally inappropriate for me to assume power wholly on my 
     own initiative.''
       Speaker McWherter's fears were realized on Monday, January 
     15, 1979. Around 8:00 p.m. on that cold, rainy evening, 
     Governor Blanton returned to his office in the Capitol. He 
     was joined by his new lawyer and his Commissioner of 
     Correction, and later by Secretary of State Gentry Crowell. 
     Over the course of the next three hours, Governor Blanton 
     signed clemency papers for 52 prisoners, including Roger 
     Humphreys. As he signed Humphreys's papers, the Governor 
     commented, ``This takes guts.'' Mr. Crowell replied, ``Yeah, 
     well some people have more guts than they've got brains.''
       The press corps quickly learned that Governor Blanton was 
     in his office, and the reporters were waiting for him when he 
     left the Capitol after 11:00 p.m. The Governor confirmed that 
     he had signed a number of clemency documents, but he was coy 
     about how many and for whom. Governor Blanton did not tell 
     the reporters that Rogers Humphreys's clemency was being 
     hand-carried to the state prison at that very moment. By the 
     time the Secretary of State confirmed that Humphreys was 
     among the 52 prisoners receiving clemencies, Humphreys had 
     already left the prison a free man.
       News of the 52 late night clemencies hit like a bombshell 
     on January 16, 1979. State and federal officials--both 
     Democrat and Republican--expressed dismay and began looking 
     for ways to undo what Governor Blanton had done. The 
     Governor's office fueled the controversy when the Governor's 
     new lawyer announced that Governor Blanton might issue 18 
     more clemencies, including one ``big name,'' before the 
     governor-elect's inauguration.
       General Leech was in Washington on January 16, 1979 to 
     argue a case before the United States Supreme Court. His 
     pregnant wife had also gone into labor. He completed the 
     argument and telephoned his office with directions to modify 
     Opinion No. 79-3 to state that a court might hold that the 
     Governor-elect could only take the oath of office at the 
     scheduled inauguration. General Leech arrived in Nashville 
     later that evening and went directly to the hospital. His son 
     was born the next morning.
       It was at this point that Hal D. Hardin, the United States 
     Attorney in Nashville, stepped up to the plate. Hardin, a 
     ``yellow dog'' Democrat, had been appointed United States 
     Attorney by President Jimmy Carter in July 1977. Prior to 
     that appointment, he had been the widely respected presiding 
     judge on the Circuit Court for Davidson County. In fact, 
     Governor Blanton himself had placed Mr. Hardin on the bench 
     in 1975. Despite Governor Blanton's protestations that the 
     ``clemency for cash'' investigation was a partisan Republican 
     conspiracy, Hardin had been involved with the investigation 
     for more than a year.
       Mr. Hardin had learned from a confidential source that 
     Governor Blanton was preparing to issue clemencies for 18 to 
     20 more prisoners who were implicated in the ongoing 
     ``clemency for cash'' investigation. Rather than waiting for 
     events to unfold, Mr. Hardin, without the knowledge of the 
     FBI or his staff, telephoned Lamar Alexander on the morning 
     of January 17, 1979. He told Alexander that he was calling as 
     a Tennessean and explained that he had received reliable 
     information that Governor Blanton was preparing to issue 
     additional clemencies, and he recommended that the Governor-
     elect consider taking office three days early in what Lamar 
     Alexander later described as a ``swift and secret coup.''
       Lamar Alexander had high regard for Hal Hardin. However, 
     rather than acting on his own, he asked Hardin relay the 
     information to Speaker McWherter, Lieutenant Governor Wilder, 
     and General Leech. Hardin placed separate telephone calls to 
     Speaker McWherter and Lieutenant Governor Wilder. He 
     suggested a meeting among the three of them. Speaker 
     McWherter and Lieutenant Governor Wilder decided against the 
     meeting because they were concerned that a private meeting 
     might violate the Sunshine Law. Instead, they asked him to 
     meet with General Leech. Mr. Hardin telephoned General Leech, 
     and a short time later, General Leech and two senior members 
     of his staff met with Mr. Hardin in a hotel room across the 
     street from the federal courthouse that Hardin had rented 
     under an assumed name. Both Hardin and Leech understood that 
     they had been given the responsibility to chart a course of 
     action for the leaders of state government. The discussion 
     was tense and sometime heated despite their close personal 
     and professional relationship. For several hours, they 
     reviewed Opinion No. 79-3 and eventually determined that the 
     original opinion was correct. They also discussed how 
     Governor Blanton might react and formulated contingency 
     plans. When the meeting concluded, both General Leech and Mr. 
     Hardin agreed to advise the state officials that the only way 
     to prevent Governor Blanton from issuing more clemencies 
     would be for Lamar Alexander to take the oath of office 
     immediately.
       Mr. Hardin returned to his office following the meeting in 
     the hotel room. General Leech telephoned Lamar Alexander. He 
     told the Governor-elect that despite his earlier misgivings 
     about Opinion No. 79-3, he was now convinced that state law 
     permitted the Governor-elect to assume office before the 
     inauguration and that removing Governor Blanton from office 
     was not only appropriate but necessary. Then General Leech 
     met with Speaker McWherter and Lieutenant Governor Wilder and 
     reiterated what he had told the Governor-elect. The 
     legislative leaders were convinced that Governor Blanton 
     should be removed from office, and Speaker McWherter 
     telephoned Lamar Alexander and told him, ``It's time for 
     leadership . . . We will support you.''
       Numerous telephone conversations involving Lamar Alexander, 
     Speaker McWherter,

[[Page 7589]]

     Lieutenant Governor Wilder, and General Leech followed.
       They agreed that bipartisanship was essential and that 
     Tennessee's citizens should understand that Tennessee's 
     elected leaders were united in this decision. They decided 
     that the legislative leaders, the constitutional officers, 
     and the Attorney General--all Democrats--should be present at 
     the ceremony, and they agreed on a statement that Alexander 
     would read before he took the oath of office. They also 
     decided that the ceremony should take place in the courtroom 
     at the Supreme Court Building in Nashville and that Chief 
     Justice Joseph Henry, also a Democrat, should be invited to 
     administer the oath of office.
       Shortly after 5:00 p.m., Speaker McWherter, Lieutenant 
     Governor Wilder, the constitutional officers, and the members 
     of the media walked from the Legislative Plaza to the Supreme 
     Court. They were joined there by Lamar Alexander, his family, 
     and several of Alexander's senior advisors. Chief Justice 
     Henry administered the oath. The somber ceremony lasted six 
     minutes. The press conference that followed lasted much 
     longer. It was not lost on the media that the new governor 
     was a Republican while most of the other officials involved 
     in the ceremony were Democrats. One television reporter 
     attempted to obtain a partisan comment from Speaker 
     McWherter. However, Speaker McWherter, who would later serve 
     as Governor with distinction, cut the reporter short saying, 
     ``Let me say to you. First, I'm a Tennessean, and I think 
     this is in the interest of Tennessee regardless of the 
     party.''
       Just before the ceremony began, General Leech telephoned 
     Governor Blanton to inform him he was no longer Governor. 
     Following the call, Governor Blanton complained that ``there 
     was no courtesy extended to me today.'' Agents of the FBI 
     circulated through the Capitol serving grand jury subpoenas 
     on Governor Blanton's staff. Hal Hardin decided not to attend 
     the ceremony. Rather than remaining in his office, he went 
     for a long drive to be alone with his thoughts and to reflect 
     on the events of the day.
       As soon as the ceremony ended, several senior members of 
     now Governor Alexander's staff made their way to the Capitol 
     to secure the Governor's office. They found Governor 
     Blanton's lawyer in his office preparing clemency papers for 
     30 more prisoners. Lewis R. Donelson, a Memphis lawyer who 
     had already been named as the new Commissioner of Finance and 
     Administration, refused to permit the lawyer to leave the 
     building with the papers. When Governor Blanton telephoned to 
     question his authority, Mr. Donelson replied that he was 
     acting ``by the authority of the new governor.'' In response 
     to Governor Blanton's assertion that he was still the 
     governor, Mr. Donelson replied, ``Not anymore.''
       A full discussion of the aftermath of the events of January 
     17, 1979 must await another day. Governor Alexander appointed 
     Fred Thompson as special counsel to oversee his 
     Administration's response to the clemency crisis. Governor 
     Alexander's formal inauguration took place as planned on 
     January 20, 1979. For the second time, Governor Alexander 
     took the oath administered by Chief Justice Henry in the 
     presence of Speaker McWherter, Lieutenant Governor Wilder and 
     the constitutional officers. While litigation in the federal 
     and state court would follow, the transition of governmental 
     power proceeded with bipartisan dignity. Governor Alexander 
     announced that ``today ought to be a happy one because the 
     people and their government are back together again.''
       Courage does not always draw attention to itself. Hal 
     Hardin did not attend the inauguration. Bill Leech was 
     present but did not play a prominent role in the ceremonies. 
     While Lamar Alexander, Ned Ray McWherter, and John Wilder 
     deserve credit for their personal courage and decisive 
     demonstration of bipartisanship, the principal figures in 
     this political drama agree that the events of January 17, 
     1979 would not have unfolded the way they did had it not been 
     for Hal Hardin and Bill Leech. These lawyers placed the rule 
     of law and governmental integrity ahead of political 
     expediency and personal reputation. In the words of Speaker 
     McWherter, they were Tennesseans first and their actions 
     sprang from their desire to protect the interests of all 
     Tennesseans, regardless of party.

  Mr. ALEXANDER. I thank the Senator from Washington. I yield the 
floor.

                          ____________________