This chapter examines the removal of Kevin Ryan, the former United States Attorney for the Northern District of California. Ryan has not commented publicly about the reasons for his removal, and he did not cooperate with our investigation.¹⁹³

1. Background

Ryan graduated from the University of San Francisco School of Law in 1984. From 1985 to 1996, he served as a Deputy District Attorney for Alameda County. In 1996, Ryan was appointed to be a Municipal Court Judge for the City and County of San Francisco. In 1999, Ryan became a California Superior Court Judge.

On May 15, 2002, Ryan was nominated by President Bush to be the United States Attorney for the Northern District of California. He was confirmed by the Senate on July 26, 2002, and sworn in on August 2, 2002.

2. The EARS Evaluations of Ryan’s Office

Ryan’s office underwent an EARS evaluation in 2003, approximately 6 months after he was sworn in as U.S. Attorney. The final report of the evaluation stated that “the overall evaluation was positive,” and that Ryan was “dedicated to the effective management of the office and to the priorities of the Attorney General.” The report described him as an effective leader in the District, and stated that “the judiciary was favorably impressed with the new United States Attorney.”

The office was evaluated again in March 2006. The May 2006 draft of the final EARS report contained several negative comments, stating for example that “there are serious morale problems [among Criminal Division AUSAs] . . . caused by the perception that U.S. Attorney Ryan and [the] First AUSA/ Criminal Chief . . . poorly manage Criminal Division AUSA personnel in San Francisco.” The report stated that AUSAs perceived Ryan as inaccessible, uninterested in their work, unresponsive to their concerns, too “insulated and cloistered,” and that he “makes decisions with minimal input from the line staff.” The report also noted that some of the AUSAs had expressed concern to the evaluators that Ryan and the First Assistant “might retaliate against those AUSAs who disagree with their decisions.”

The report stated that while Ryan “strongly disputed” the findings concerning his management style and attributed them to “a small group of ‘disgruntled’ AUSAs,” the evaluation team found that “the concerns about . . . Ryan’s management style and practices . . . were expressed by a majority of the line AUSAs in the Criminal Division . . . and by line AUSAs in every section and unit . . . and every level of experience.”

As a result of the negative assessment, in October 2006 Associate Deputy Attorney General Margolis and EOUSA Director Battle directed an EARS “Special Review Team” to conduct an additional evaluation to verify the morale issues identified in the earlier evaluation and to make recommendations to address them.

On November 22, 2006, the Special EARS Team provided its findings to Margolis and Battle. The report concluded that there were significant morale problems attributable to the management styles and practices of Ryan and the First Assistant U.S. Attorney. The report stated that Ryan and the First Assistant were viewed as “being vindictive when they perceived disloyalty or when their decisions were questioned.” The report stated that despite the earlier EARS evaluation, Ryan continued to dispute the degree of the morale problem in the office. The report noted that “from all accounts, the style and practices of the top leadership has not changed” since the March evaluators briefed Ryan on the team’s findings.

3. Status on the Removal Lists

On Sampson’s initial removal list, which he e-mailed to Miers on March 2, 2005, Sampson characterized Ryan as a “strong” U.S. Attorney not recommended for removal. On the second list Sampson sent to the White House in January 2006, Ryan was one of seven U.S. Attorneys recommended for removal.

Ryan’s name was not on the third list Sampson sent to the White House in April 2006, and Ryan did not appear on any subsequent removal list until the final list on December 4, 2006.

EOUSA Director Battle called Ryan on December 7, 2006, to ask for his resignation. Ryan resigned as U.S. Attorney for the Northern District of California on February 16, 2007.

4. Reasons Proffered for Ryan’s Removal

In his closed briefing to the Senate Judiciary Committee on February 14, 2007, McNulty stated that Ryan was asked to resign because of management failures documented in EARS evaluations of his office.

We found no public statements by Department officials discussing the reasons for Ryan’s removal. However, in our interviews and in interviews with congressional investigators, Department officials consistently stated that the management problems associated with Ryan’s office were the reasons for his removal.

1. Concerns About Ryan’s Management

Beginning in 2004, Department officials became aware of allegations that Ryan’s management was causing turmoil in his office. In 2004, several San Francisco newspapers reported on the departures of several experienced prosecutors in the U.S. Attorney’s Office and on problems with Ryan’s management and the turmoil in his office.¹⁹⁴ In the fall of 2004, the Chief Judge for the U.S. District Court for the Northern District of California sent Margolis copies of the articles and called him to complain about Ryan’s leadership. E-mail records between Margolis and EOUSA Director Mary Beth Buchanan in late October 2004 show that Margolis and Buchanan recognized the need to discuss the concerns with Ryan.

On January 31, 2005, another experienced prosecutor left Ryan’s office. The day of his departure, the AUSA sent an office-wide “open letter” to Ryan complaining about long-standing morale and attrition problems in the office attributable to Ryan’s management. The letter was forwarded to AUSAs in other U.S. Attorney’s offices and to EOUSA. The Chief Judge in Ryan’s district sent Margolis a copy of the letter on February 4, 2005, and asked him to consider the complaints. Margolis and Buchanan decided to meet with Ryan and the First Assistant U.S. Attorney in mid-March 2005 to discuss these issues.

On March 21, 2005, Margolis and Buchanan discussed the concerns with Ryan and his First Assistant. According to Margolis, he “read [Ryan] the riot act” about his management style and the attrition in the office, and he suggested to Ryan that it would be wise for him to ask the Department to undertake a special review of these management issues. According to Margolis and to correspondence from Ryan to Sampson, Ryan did not request such a review.

2. Sampson’s Discussions About Ryan in Early 2005

At the same time that Margolis and Buchanan were discussing how to address the management issues regarding Ryan, Sampson began the process of categorizing the U.S. Attorneys to determine who should be recommended for removal. As noted above, on March 2, 2005, Sampson forwarded to Miers his first list of U.S. Attorneys, and he described Ryan as one of the strong U.S. Attorneys. Sampson told congressional investigators that he could not recall specifically why he rated Ryan positively on the March 2005 list. However, Sampson said that at the time, he considered Ryan to be “a really good guy and an honorable person who was working in a very difficult office . . . and he had a difficult time managing that office.” Sampson said he did not recall having conversations at that time with Comey, Margolis, or Buchanan in which they raised any concerns about Ryan.

However, we determined that Margolis, Comey, and Buchanan separately told Sampson sometime in early 2005 that they did not view Ryan favorably. Comey told us that when he met with Sampson on February 28, 2005, he told Sampson he considered Ryan to be a weak U.S. Attorney based on the morale problems in the office.¹⁹⁵ Comey said that he knew EOUSA was concerned about Ryan’s office and was working with Margolis to address the problems.

Margolis told us he could not recall exactly when Sampson first broached the subject of removing underperforming U.S. Attorneys in early 2005, although Margolis said he strongly recommended to Sampson that Ryan and Dunn Lampton of the Southern District of Mississippi be removed. Margolis said he was aware of the management problems in Ryan’s office, and he questioned Lampton’s judgment after learning about several matters Lampton was handling.

Buchanan told congressional investigators that her office had received complaints from a number of sources, including former staff members and judges, about Ryan’s management, and she said she discussed the matter with Sampson in the “early spring” of 2005.

3. Fall 2005 EARS Evaluation is Postponed

According to Buchanan, she and Margolis decided to conduct a special EARS evaluation of Ryan’s office to better pinpoint and address the problems in that office. Ryan’s office was originally scheduled to undergo a regular EARS evaluation sometime in the spring of 2006. In light of the concerns about Ryan’s management and the morale of the office, in June 2005 EARS administrators attempted to schedule the regular evaluation for October 2005, earlier than the regular 3-year cycle.

On June 10, 2005, Ryan’s office requested that the review be postponed until sometime in 2006 because the office was experiencing key administrative personnel shortages related to several recent retirements. Margolis recommended to EOUSA that the request be denied in light of the serious issues in Ryan’s office. EOUSA denied the request on June 23. Ryan telephoned the new EOUSA Director, Michael Battle, the following day to attempt to persuade him to postpone the evaluation.¹⁹⁶

Battle told congressional investigators that he agreed to Ryan’s request for an extension because Battle needed time to become knowledgeable about the issues in the district, and he wanted to give Ryan the chance to be able to “put his best foot forward.” The evaluation was rescheduled for late March 2006. Margolis said that when Battle told him he had agreed to Ryan’s request to reschedule the evaluation, Margolis expressed his disappointment.

According to Battle, even before he arrived at EOUSA he had heard that Ryan’s district was “embattled.” Battle told congressional investigators that Ryan was “in a siege and everybody was angry with him.”

4. Events in 2006


1. Ryan is on Sampson’s January 9, 2006, List of U.S. Attorneys Recommended for Removal

Ryan was included on the list of U.S. Attorneys Sampson recommended for removal on January 9, 2006. Sampson told us that he believed he included Ryan at that time because by then he perceived that Ryan had “lost the office . . . the office turned on him.” Gonzales also told us that he was aware of “serious management problems” in Ryan’s office by January 2006. However, Gonzales said he could not recall how or when he learned the information, and he speculated that it came from McNulty, Battle, or Sampson.

2. Controversy Concerning the Methodology of the EARS Evaluation

In mid-January 2006, the EARS Team slated to review Ryan’s office in March proposed interviewing former AUSAs as part of the evaluation in light of the allegations that numerous experienced prosecutors had resigned because of Ryan’s poor leadership. Correspondence between Ryan and the EOUSA Assistant Director who was in charge of the EARS program for the Department shows that the team leader discussed the issue with Ryan in late January and Ryan was unhappy about the proposed interviews. In February 2006, Ryan stated his opposition to the proposal and to other aspects of the review in correspondence to the team leader and to the EOUSA Assistant Director. Ryan also expressed concern that the EARS team had already prejudged the office and had been tainted by the accounts of disgruntled former AUSAs. The Department’s response to Ryan stated that the review would proceed as planned.

On January 18, 2006, Battle received a letter from an AUSA in Ryan’s office containing the subject line “An Office in Distress – USAO, Northern District of California.” The letter described the mass “exodus” of experienced AUSAs during Ryan’s tenure and urged the Department to use the upcoming EARS evaluation to “investigate the causes underlying this unprecedented exodus of AUSAs and other personnel.”

On March 8, 2006, a few weeks before the scheduled EARS evaluation, a San Francisco newspaper wrote an article about the letter, discussing at length the discord within the office and stating that “[c]riticizing Ryan’s management has become a cottage industry since he was appointed by President Bush in 2002, with prosecutors, defense lawyers and at least one judge complaining about office management and the handling and selection of cases.”

3. The March 2006 EARS Evaluation

The EARS team conducted a 4-day on-site evaluation of the San Francisco U.S. Attorney’s Office during the week of March 27, 2006. After its completion, Margolis sent an e-mail to Elston informing him that he had learned from EOUSA Director Battle that “staff and court comments were not positive.” Margolis’s e-mail informed Elston that the EARS team had originally planned to interview former AUSAs but had “temporarily backed off that plan at [U.S. Attorney] Ryan’s insistence,” so only current staff was interviewed. Margolis wrote that the complaints appeared to be “of the same nature as those that I brought to [U.S. Attorney] Ryan’s attention [last spring].” Margolis said that “we can decide if further inquiry is needed” after the team produced its draft observations.

On April 4, 2006, the EARS team leader prepared a preliminary memorandum to EOUSA highlighting his “significant observations” concerning the high turnover rate and low morale that line AUSAs attributed to Ryan’s poor management style and practices. The memorandum and a draft of the full report, which were submitted to Margolis in late May 2006, emphasized that “there is a significant morale problem among a number of AUSAs in the Criminal Division . . . caused, at least in part, by their perceptions that U.S. Attorney Ryan (and [the] First AUSA/Criminal Chief) poorly manages the Criminal Division AUSA personnel in San Francisco.” In a May 27, 2006, e-mail to Mercer, Elston, and Battle, Margolis wrote, “I think this report furnishes the predicate for sending the team back to interview former AUSAs as well as any persons suggested by Ryan.”

After reviewing the draft EARS report, Ryan wrote an 8-page letter, dated July 14, 2006, disagreeing with the report’s conclusions concerning his management of the office and asking that the sections criticizing his and the First Assistant’s management be deleted from the final version. Ryan described those sections as “personalized and unsubstantiated attacks.” He also complained that the EARS team was biased and the outcome of the evaluation seemed predetermined. Ryan stated that “Many of the morale issues . . . are the corollary of bringing much needed change to some of the longstanding policies and practices of this district.”

4. The Special EARS Evaluation

In September 2006, Battle informed Ryan that the Department had denied his request to delete portions of the evaluation and that he and Margolis had decided to send a “Special EARS Review” team to Ryan’s office to follow up on the March evaluation. The Special Review team planned to interview both current and former AUSAs. The team also planned to interview Ryan and the First Assistant, as well as individuals suggested by them.

Ryan wrote Sampson a letter dated October 8, 2006, complaining about the Special EARS follow-up evaluation and characterizing it as “a distraction forced upon us [which] is not only unfair, disruptive, and counterproductive; it is also a waste of taxpayer’s money.” Ryan also stated that the Department was not considering the office’s “great work on some cutting edge cases . . . in a very difficult environment and with strained resources.” Ryan wrote that he felt he had been treated unfairly by Margolis and the EARS evaluators. Ryan stated, “In my opinion, this is becoming dangerously close to using the resources of the DOJ to pursue a personal agenda.”

Sampson said he shared the letter with McNulty and asked him to figure out what should be done to address Ryan’s concerns. Sampson said he forgot about Ryan’s letter until late November 2006, when McNulty said he wanted Ryan added to the removal list.

McNulty told us that the March 2006 evaluation of Ryan’s office was so negative that it demanded a substantial follow-up review. McNulty said that by October 2006 he was working closely with Margolis to address the “very significant management problems” the evaluation had identified in Ryan’s office.

The special EARS evaluation was conducted during the week of October 23, 2006, as scheduled, with a team of eight veteran AUSAs who were also experienced EARS evaluators. Over a 3-day period, the team interviewed 42 current and former AUSAs, in addition to Ryan and the First Assistant. The team also considered a 14-page memorandum the First Assistant had drafted concerning the office’s attrition rates, information concerning personnel decisions Ryan made between 2002 and 2006, and additional background information about current and former AUSAs whom the team had selected for interviews.

By memorandum dated October 29, 2006, the team leader, Ken Melson, then the First Assistant U.S. Attorney for the U.S. Attorney’s Office for the Eastern District of Virginia (and currently the Director of EOUSA), advised Margolis of the team’s significant observations. Among other things, Melson’s 6-page memorandum confirmed the previous EARS report’s finding of a “significant morale problem” in the U.S. Attorney’s Office during Ryan’s tenure. Melson also wrote that the morale problem had contributed significantly to the mass departure of experienced AUSAs from the office, which he attributed directly to the management style and practices of Ryan and the First Assistant. Melson reported that both current and former AUSAs described Ryan as “elusive, isolated, removed from office life, retaliatory, explosive, non-communicative, and paranoid.” Melson also found “little evidence that the management practices and styles of U.S. Attorney Ryan and [the] First AUSA . . . have changed” since the March EARS evaluation and concluded that those management styles and practices were “inappropriate and harmful to the office.” In closing, Melson summed up the morale of the office as “abysmal.”

By memorandum dated November 22, 2006, addressed to Margolis and Battle, Melson provided the Special EARS Review 18-page formal report, which expanded on Melson’s observations in his October 29 memorandum. Melson’s final report was delivered 5 days before the Monday, November 27, 2006, meeting held in the Attorney General’s conference room to finalize and approve the removal plan for U.S. Attorneys.

5. The Removal Lists

As previously noted, after being on the January 2006 list, Ryan’s name was not included on the subsequent lists Sampson sent to the White House in April, September, and November 2006. When we asked Sampson why he had removed Ryan’s name from the lists after January 2006, he stated that it was likely he did so because he was aware that the evaluation process of Ryan’s office was ongoing. Sampson stated that while a U.S. Attorney can be removed “for any reason or no reason,” once the evaluation process has been initiated, “as a matter of policy” the U.S. Attorney should be given the benefit of the full evaluation before being removed.

McNulty told congressional investigators that he was “a little confused” as to why Ryan was not listed for removal on the September 13 or November 7, 2006, lists.¹⁹⁷ McNulty acknowledged that when he learned about the removal plan in October 2006, he did not tell Sampson to add Ryan to the list for removal, but he told us that even without the removal process, at some point he would have told Sampson that Ryan should be removed.

According to Elston, he and McNulty became aware of the problems in Ryan’s office sometime during the summer of 2006. Elston said that Margolis reported on the issues concerning Ryan’s management “with some frequency,” although Elston said he did not suggest that Sampson add Ryan to the list when he learned about the removal plan in October because Margolis was handling the issues with Ryan. Elston said that while he was aware of concerns, he did not know the facts and did not know who was at fault.

As previously discussed, a meeting on the morning of November 27, 2006, was held in the Attorney General’s conference room to finalize and approve the plan to remove U.S. Attorneys. Gonzales, Sampson, McNulty, Goodling, Moschella, and Battle attended. Elston was unavailable, and Margolis was not invited.

At the meeting, the Attorney General approved the plan for removing the six U.S. Attorneys on Sampson’s November 7 removal list.¹⁹⁸ The attendees told us there was little or no discussion about the reasons the named U.S. Attorneys were designated for removal or whether anyone else should be added to the list.

Sampson told us that after the meeting was adjourned, McNulty approached him and said that “Ryan needs to be on the list.” McNulty told congressional investigators he had no personal memory of doing this, but he said it was “consistent with what I was dealing with at the time.” Elston told us that McNulty added Ryan’s name to the list in late November after the results of the special review were analyzed.¹⁹⁹

Although Sampson said he had no specific recollection, he said he believed that he conveyed McNulty’s views on Ryan to Attorney General Gonzales and received his approval to add Ryan’s name to the removal list. Gonzales told us that he did not know why Ryan was not on the November 27 list. He said it was “bizarre” that Ryan’s name was not listed because he knew that Ryan was “probably the number one person Margolis wanted to go.”

Margolis, who was not at the meeting, told us he was “astonished” when he learned that Ryan was not on the list. He said that he asked Sampson about it and Sampson gave Margolis the impression he would look into it. Sampson added Ryan’s name to the December 4 final list of U.S. Attorneys to be removed.

Battle called Ryan on December 7, 2006, and told him to resign. Battle told congressional investigators that he “had trepidations” about making the call to Ryan because he knew Ryan was angry about the Special EARS evaluation. Battle said he told Ryan that the Administration was requesting his resignation by the close of business on January 31, 2007. According to Battle, Ryan did not ask why his resignation was being requested; he just said “thank you very much” and hung up.

Ryan did not discuss his removal with anyone at the Department. On January 17, 2007, the night before Attorney General Gonzales was to testify at an oversight hearing before the Senate Judiciary Committee, Elston contacted Ryan’s office to assure him that the Attorney General would not discuss Ryan’s removal at the hearing. According to e-mail records, Ryan’s First Assistant returned Elston’s call and told Elston that Ryan was not returning phone calls from Senator Feinstein and from U.S. Attorney Carol Lam, who had also been told to resign. Elston stated that the First Assistant told him that Ryan “wanted us to know that he’s still a company man.” Ryan made no public statements about his removal, and he declined to cooperate with our investigation.

In sum, we found nothing inappropriate about the Department’s decision to remove Ryan or about the process the Department used to reach its decision. The evidence was clear that Ryan was removed because of concerns about his management of his office and the two EARS evaluations that severely criticized the management of his office. These EARS evaluations were conducted by independent and experienced career attorneys. Ryan’s responses to the criticisms were considered, but the Department did not find his arguments persuasive and believed he should be replaced.

The reasons proffered for Ryan’s removal are consistent with what our investigation found. In contrast to the process the Department used to decide whether to remove other U.S. Attorneys, the Department sought an objective evaluation of the allegations about Ryan’s performance, and Ryan was given an opportunity to respond to them. At the end of the process, the Department considered the reports and his responses, believed that Ryan’s office needed a change of leadership, and it implemented that change.