In this chapter, we briefly discuss the duties of U.S. Attorneys, how they are selected and evaluated, and their position in the Department’s organizational hierarchy.
- U.S. Attorneys
- Selection of U.S. Attorneys
- Department Evaluation and Interaction with U.S. Attorneys
- Backgrounds of Department Officials
- Alberto Gonzales
- Kyle Sampson
- Monica Goodling
- Paul McNulty
- Michael Elston
- David Margolis
- William Mercer
- William Moschella
There are 93 U.S. Attorneys throughout the United States, Puerto Rico, the Virgin Islands, Guam, and the Commonwealth of the Northern Mariana Islands. Under the supervision of the Attorney General, who has statutory authority over all litigation in which the United States or any of its agencies is a party, U.S. Attorneys serve as the federal government’s chief law enforcement officers in their districts.10 See U.S. Attorney’s Manual (USAM) § 3-2.100. U.S. Attorneys must interpret and implement the policies of the Department in the exercise of their prosecutorial discretion. As stated in the Department’s USAM, a U.S. Attorney’s “professional abilities and the need for their impartiality in administering justice directly affect the public’s perception of federal law enforcement.” USAM § 3-2.140.
U.S. Attorneys are appointed by the President with the advice and consent of the Senate. See 28 U.S.C. § 541. Because they are Presidential appointees and not covered by standard civil service protections, U.S. Attorneys are subject to removal at the will of the President.11 U.S. Attorneys are appointed for 4-year terms, although upon expiration of their 4-year term they typically remain in office until they choose to leave or there is a change in Administration. USAM § 3-2.120.
Prior to March 2006, in the event of a vacancy in a U.S. Attorney’s position, the First Assistant U.S. Attorney became the Acting U.S. Attorney, pending confirmation of a Presidential appointee, for a maximum 210-day period pursuant to 5 U.S.C. § 3345(a)(1). Alternatively, the Attorney General could appoint an Interim U.S. Attorney for that district to serve for a maximum of 120 days. 28 U.S.C. § 546(a) and (c). After 120 days, the federal district court could either reappoint the Interim U.S. Attorney or make its own appointment to serve until the vacancy is filled through Senate confirmation of a Presidential appointment. See 28 U.S.C. § 546 (c) and (d).
At the request of the Department, Congress enacted amendments to the USA Patriot Act in March 2006 which eliminated the district court from the process, removed the 120-day time limit, and permitted the Interim U.S. Attorney appointed by the Attorney General to serve until a Presidentially appointed U.S. Attorney was confirmed. See 28 U.S.C. § 546; Pub.L. 109-177, § 502.
As discussed in Chapter Three, in response to the events described in this report, in June 2007 Congress repealed this amendment. Therefore, according to 28 U.S.C. § 546, an Interim U.S. Attorney appointed by the Attorney General may serve up to 120 days or until the confirmation of a Presidentially appointed U.S. Attorney. If an Interim U.S. Attorney appointment expires before a Presidentially appointed U.S. Attorney is confirmed, the federal district court for that district appoints an Interim U.S. Attorney to serve until the vacancy is filled. See 28 U.S.C. § 546; see also USAM at § 3-2.160.
To identify candidates for U.S. Attorney positions, the White House typically seeks recommendations from political leaders in the various districts across the country. During the time period under review in this report, Senators from the President’s party normally submitted recommendations for U.S. Attorney candidates to the White House Presidential Personnel Office (PPO) or to staff in the White House Office of Political Affairs (OPA). If no Republican Senator represented a particular district, White House staff contacted OPA’s designated “political lead” for that district. After panel interviews with Department and White House officials, and Deputy Attorney General and Attorney General concurrence, a candidate’s name was recommended to the President.
If the President approved the recommendation, the Federal Bureau of Investigation (FBI) began a background investigation of the candidate. The results of the background investigation were forwarded by EOUSA to the Department’s White House Liaison. After review of the background investigation, the White House Counsel’s Office would state whether the candidate was “cleared.” If the candidate was cleared, the White House informed EOUSA, which sent the nomination paperwork to the White House. The White House would then publicly announce the President’s “intent to nominate” the candidate, and the White House would forward the nomination paperwork to the Senate.
While their nominations were before the Senate, U.S. Attorney candidates were subject to a “blue slip” process by which their home state Senators approved or disapproved of the nomination. The blue slip is a form printed on blue paper that the Senate Judiciary Committee uses to allow the home state Senators to express their views concerning a presidential nominee. According to the Congressional Research Service (CRS), by Senate tradition if a home state Senator indicates disapproval or otherwise fails to note approval on the blue slip, the chair of the Senate Judiciary Committee normally declines to take action on the nomination out of deference to the home state Senator. See CRS Report for Congress, “U.S. Attorneys Who Have Served Less Than Full Four-Year Terms, 1981-2006,” February 22, 2007, p. 1.
Appendix B contains a chart of the Department’s organizational structure.
According to federal regulation, the Attorney General supervises and directs the administration and operation of the Department of Justice, including the U.S. Attorneys’ Offices. See 28 C.F.R. § 0.5. The Deputy Attorney General assists the Attorney General in providing overall supervision and direction to all organizational units of the Department, including the U.S. Attorneys’ Offices. See 28 C.F.R. § 0.15. The Deputy Attorney General is authorized to exercise all the power and authority of the Attorney General, except where such power or authority is prohibited by law from delegation or has been delegated to another official. In the absence of the Attorney General, the Deputy Attorney General acts as the Attorney General. See 28 C.F.R. § 0.15. The Deputy Attorney General oversees the day-to-day operations of the Department of Justice and is the direct supervisor of U.S. Attorneys.
The Executive Office for United States Attorneys performs two primary functions with respect to the U.S. Attorneys’ Offices: (1) evaluating the performance of the U.S. Attorneys’ Offices, making appropriate reports and taking corrective action where necessary; and (2) facilitating coordination between the U.S. Attorneys’ Offices and other organizational units of the Department of Justice. See 28 C.F.R. § 0.22 (a)(1) and (2). With respect to the first function, periodic performance evaluations of U.S. Attorneys’ Offices are conducted by EOUSA’s Evaluation and Review Staff (EARS).
During EARS reviews, a U.S. Attorney’s Office performance evaluation is conducted over a period of 1 week by a team of experienced Assistant U.S. Attorneys (AUSAs) and administrative and financial litigation personnel from other U.S. Attorneys’ Offices. Each fiscal year, EARS conducts evaluations in approximately one fourth of the U.S. Attorneys’ Offices. Thus, any given U.S. Attorney’s Office should be evaluated every 3 to 4 years.
EOUSA’s evaluation program serves various purposes, including providing on-site management assistance to U.S. Attorneys and assuring compliance with Department policies and programs. The program also serves as a mechanism by which evaluators can share ideas and best practices with the U.S. Attorneys’ Offices.
According to the Chief of Staff and Deputy Director of EOUSA, the evaluation program also provides an opportunity for peers to evaluate peers in an objective manner. The evaluators, who are neither auditors nor inspectors, also make recommendations for improving the operation of the U.S. Attorney’s Office.
Following the on-site EARS evaluation of a U.S. Attorney’s Office, the EARS team leader prepares a document entitled “Draft Significant Observations” for the Director of EOUSA, who in turn provides the draft to the Deputy Attorney General but not to the U.S. Attorney. A “Follow-up Program” includes follow-up visits to the U.S. Attorney’s Office by evaluators other than those who participated in the initial evaluation and EOUSA personnel. Follow-up teams verify corrective actions and provide needed assistance to the offices.
After completion of the follow-up review, the EARS staff produces a “Final Evaluation Report,” consisting of a summary of the legal and administrative reports and the U.S. Attorney’s response to those reports. The Director of EOUSA provides the Final Evaluation Report to the Deputy Attorney General and the U.S. Attorney.
Allegations of misconduct by U.S. Attorneys are generally investigated by either the OIG or OPR, depending on the nature of the alleged misconduct.12 As presidential appointees, U.S. Attorneys are not subject to discipline or removal by the Department without the President’s approval. In cases in which the Deputy Attorney General and the Attorney General conclude that removal is warranted, they normally request approval from the White House Counsel to ask for the U.S. Attorney’s resignation. If the U.S. Attorney refuses to submit a resignation, the President can dismiss the U.S. Attorney.
In this section, we briefly summarize the backgrounds and duties of those individuals who had a major role in the removal of the U.S. Attorneys at issue in this review and in the Department’s response to those removals.
Appendix C identifies the Department’s senior managers at the time of the events discussed in this report.
Alberto Gonzales graduated from Rice University in 1979 and Harvard Law School in 1982. He began his legal career in private practice in 1982 at the law firm of Vinson and Elkins, where he became a partner. In 1994, he was appointed General Counsel to Governor Bush. In 1997, Gonzales was appointed Secretary of State for Texas. Gonzales also served as a Justice of the Supreme Court of Texas from 1999 to until 2001, when he became White House Counsel to President Bush. Gonzales served as White House Counsel until February 2005, when he was confirmed as Attorney General of the United States. Gonzales resigned as the Attorney General on August 27, 2007.
Kyle Sampson graduated from Brigham Young University in 1993 and from the University of Chicago Law School in 1996. After law school, he served as a federal appellate court clerk, and then worked for 2 years in a private law firm in Salt Lake City. In 1999, he became a Majority Counsel to the U.S. Senate Committee on the Judiciary, where, among other things, he worked on the nominations of candidates for political positions in the Department of Justice. In 2001, Sampson moved to the White House as Special Assistant to the President and Associate Director for Presidential Personnel where he handled, among other duties, presidential appointments at the Department of Justice. Later in 2001 and continuing until 2003, Sampson served as Associate Counsel to the President. During that time, Sampson worked on legislative, policy, and environmental matters.
In August 2003, Sampson moved to the Department of Justice, where he first served as Counselor to Attorney General John Ashcroft. In February 2005, Sampson became Deputy Chief of Staff to Attorney General Gonzales, and in September 2005 he became Chief of Staff to the Attorney General. He remained in that position until his resignation from the Department in March 2007.
Monica Goodling graduated from Messiah College in 1995 and from Regent University School of Law in 1999. From 1999 to February 2002, Goodling worked at the Republican National Committee as a research analyst, senior analyst, and deputy director for research and strategic planning.
In February 2002, Goodling began work in a political position in the Department’s Office of Public Affairs. In September 2004, Goodling was detailed for 6 months as a Special Assistant U.S. Attorney in the U.S. Attorney’s Office in the Eastern District of Virginia. In March 2005, Goodling was appointed as the political Deputy Director in EOUSA. According to her résumé, her responsibilities at EOUSA included oversight of and coordination between EOUSA and U.S. Attorneys’ Offices across the country.
In October 2005, Goodling was appointed as Counselor to Attorney General Gonzales. In April 2006 she became the Department’s White House Liaison and Senior Counsel to the Attorney General. Goodling’s major responsibility as White House Liaison was to interview and process applicants for political positions in the Department, including U.S. Attorneys. Goodling remained in that position until she resigned in April 2007.
Paul McNulty graduated from Grove City College in 1980 and from Capital University School of Law in 1983. He began his legal career as Counsel for the House of Representatives’ Committee on Standards of Official Conduct, where he served from 1983 to 1985. From 1985 to 1987, McNulty was Director of Government Affairs at the Legal Services Corporation. In 1987, he became Minority Counsel to the House Subcommittee on Crime.
McNulty joined the Department of Justice in 1990 as Deputy Director of the Office of Policy Development, and in 1991 he became the Director of the Department’s Office of Policy and Communications.
McNulty worked for a private law firm in Washington from 1993 to 1995. He returned to work for Congress in 1995 as Chief Counsel to the House Subcommittee on Crime. He remained in that position until 1999 when he became Chief Counsel and Director of Legislative Operations for the House Majority Leader.
After serving on President Bush’s transition team for the Department of Justice, McNulty was appointed Principal Associate Deputy Attorney General in January 2001. In September 2001, he was confirmed to be the U.S. Attorney for the Eastern District of Virginia. He served as U.S. Attorney until November 2005, when he became the Acting Deputy Attorney General. McNulty was confirmed as the Deputy Attorney General on March 17, 2006.
As Deputy Attorney General, McNulty was the U.S. Attorneys’ immediate supervisor. He served as the Deputy Attorney General until his resignation in July 2007.
Michael Elston graduated from Drake University in 1991 and Duke University School of Law in 1994. Following a 2-year federal appellate court clerkship, Elston went into private practice until 1999, when he became an AUSA in the Northern District of Illinois. Elston subsequently served as an AUSA in the Eastern District of Virginia from April 2002 until December 2005, when he became Chief of Staff and Counselor to McNulty. Elston remained McNulty’s Chief of Staff until his resignation in June 2007.
David Margolis is a career Associate Deputy Attorney General and the highest-ranking career attorney in the Department. Margolis graduated from Brown University in 1961 and Harvard Law School in 1964. He began his career with the Department in 1965 as an AUSA in the District of Connecticut. Beginning in 1969, he held a series of supervisory positions with the Organized Crime Section of the Criminal Division. In 1990, he became Acting Deputy Assistant Attorney General in the Criminal Division. In 1993, he was appointed as an Associate Deputy Attorney General and has remained in that position since that time.
Margolis’s informal biography describes his duties as an Associate Deputy Attorney General to include acting as the liaison for the Deputy Attorney General with the FBI, the Criminal Division, and the U.S. Attorneys. Margolis is also normally responsible for recommending the Department’s response in cases where the OIG or OPR make misconduct findings against high-level Department officials.
William Mercer graduated from the University of Montana in 1984 and received a master’s degree in Public Administration from the Kennedy School of Government at Harvard University in 1988. Mercer then was a Presidential Management Intern in the Treasury Department’s Office of Tax Policy from 1988 to 1989. Between 1989 and 1995, Mercer served in the Department of Justice as Counselor to the Assistant Attorney General and Senior Policy Analyst in the Office of Policy Development.
Mercer received a law degree from George Mason University School of Law in 1993. From 1994 to 2001, he worked as an AUSA in the District of Montana. He was confirmed as the U.S. Attorney in Montana in 2001.
Between June 2005 and July 2006, Mercer was the Principal Associate Deputy Attorney General while also serving as U.S. Attorney for Montana. In September 2006, Mercer was nominated to be Associate Attorney General. He served as Acting Associate Attorney General until June 2007, when he withdrew from consideration for the nomination. Mercer currently serves as the U.S. Attorney in Montana.
William Moschella received an undergraduate degree from the University of Virginia in 1990 and a law degree from George Mason University School of Law in 1995. During and after law school, Moschella served in a variety of congressional staff positions, including Counsel to the House Committee on Government Reform, General Counsel to the House Committee on Rules, Chief Investigative Counsel to the House Committee on the Judiciary, and Chief Legislative Counsel and Parliamentarian to the House Committee on the Judiciary.
In May 2003, Moschella was confirmed as the Department of Justice’s Assistant Attorney General for the Office of Legislative Affairs. In October 2006, Moschella was appointed Principal Associate Deputy Attorney General. He resigned from the Department in January 2008.
Presidential discretion under the statute is broad but not unlimited. The President has the discretion to remove a U.S. Attorney when “he regards it for the public good.” See, e.g., Parsons v. United States,167 U.S. 324, 343 (1897). Since a removal for an illegal or improper purpose would be contrary to the “public good,” it would be impermissible.
OPR has jurisdiction to investigate allegations against U.S. Attorneys that involve the exercise of their authority “to investigate, litigate, or provide legal advice.” The OIG has jurisdiction to investigate all other allegations against U.S. Attorneys. See 5 U.S.C. App. 3 § 8E.