OIG Special Report: An Investigation into the Removal of Nine U.S. Attorneys in 2006

In this chapter, we provide a detailed chronology leading to the removals of the U.S. Attorneys, including the genesis of the plan and what we were able to discover about the White House’s involvement in the plan. We discuss the selection process, the removal process, the reaction to the removals, and the Department’s responses.

Development of U.S. Attorney Removal Lists

As noted in Chapter Two, from January 2001 until October 2003 Kyle Sampson worked at the White House, first as a Special Assistant to the President in the Presidential Personnel Office and later as an Associate Counsel in the White House Counsel’s Office. In his position in the Presidential Personnel Office, Sampson was responsible for, among other things, interviewing and recommending candidates for political appointments to positions in the Department of Justice. Sampson told us that, in that capacity, he participated in interviewing candidates for virtually all the U.S. Attorney positions filled during the first 9 months of the Bush Administration.

After moving to the White House Counsel’s Office in September 2001, Sampson continued to be directly involved in the selection of U.S. Attorneys. He served on the interviewing panel for U.S. Attorneys and became the White House representative for U.S. Attorney appointments.¹³ As part of his responsibilities, Sampson reviewed the résumés and questionnaires of all U.S. Attorney applicants and the background investigation files for these nominees.

In October 2003, Sampson joined the Department as Counselor to Attorney General John Ashcroft. In February 2005, when Attorney General Gonzales took office, Sampson became his Deputy Chief of Staff and later his Chief of Staff. Throughout his tenure in the Department, Sampson remained involved in the selection and appointment of U.S. Attorneys through his attendance at weekly judicial selection meetings at the White House during which U.S. Attorney appointments were decided.

Genesis of Plan to Remove U.S. Attorneys

We determined that the process to remove the U.S. Attorneys originated shortly after President Bush’s re-election in November 2004.

In an e-mail on November 4, 2004, Susan Richmond, then the Department of Justice’s White House Liaison, responded to requests from various Presidentially appointed personnel in the Department about guidance regarding the transition to the Bush Administration’s second term. In the e-mail, which was sent to Department Presidentially appointed officials, including U.S. Attorneys, Richmond wrote that “the President has decided that he will not ask for letters of resignation.” (Emphasis in original.) Richmond reminded the recipients of the e-mail, however, that “each of us serves at the pleasure of the President.”

Although Richmond’s November 4 e-mail notified the U.S. Attorneys that wholesale resignations would not be required, the issue of removal of certain U.S. Attorneys was being considered by the Administration. According to Sampson, sometime after the 2004 election White House Counsel Harriet Miers asked him whether the Administration should seek resignations from all 93 U.S. Attorneys as part of an idea to replace all Administration political appointees for the President’s second term. Sampson said he told Miers that he thought it was not a good idea and he told other Department officials he “beat [it] back.”¹⁴ Sampson said he also told Miers he believed that all U.S. Attorneys had an expectation that they would at least serve their statutory 4-year term, and the terms did not begin to expire until fall 2005.

Process to Identify U.S. Attorneys for Removal

In an e-mail on January 6, 2005, Deputy White House Counsel David Leitch forwarded to Sampson an e-mail from Office of White House Counsel Paralegal Colin Newman. The e-mail from Newman stated that “Karl Rove stopped by “to ask [Leitch] . . . ‘how we planned to proceed regarding US Attorneys, whether we are going to allow all to stay, request resignations from all and accept only some of them, or selectively replace them, etc.’” In his forwarding e-mail to Sampson, Leitch proposed that they discuss the matter.

On January 9, 2005, Sampson replied by e-mail to Leitch stating that Sampson and the “Judge” [Gonzales] had discussed the matter a “couple of weeks ago.” Sampson then shared with Leitch his “thoughts,” which consisted of four points on the subject. First, Sampson pointed out that while U.S. Attorneys serve at the “pleasure of the President,” they are appointed to 4-year terms. Sampson stated that none of the U.S. Attorneys had yet completed their 4-year terms, and it would be “weird” to ask them to leave before their terms were completed. Second, Sampson noted the “historical” practice of allowing U.S. Attorneys to complete their 4-year terms even after a party change in the Administration, notwithstanding the fact that the first Clinton and Bush Administrations deviated from that historical practice by removing their predecessor’s appointees without regard to the completion of their terms. Third, Sampson stated in the e-mail:

as an operational matter, we would like to replace 15-20 percent of the current U.S. Attorneys – the underperforming ones. (This is a rough guess; we might want to consider doing performance evaluations after Judge [Gonzales] comes on board.) The vast majority of U.S. Attorneys, 80-85 percent, I would guess, are doing a great job, are loyal Bushies, etc., etc. Due to the history, it would certainly send ripples through the U.S. Attorney community if we told folks that they got one term only (as a general matter, the Reagan U.S. Attorneys appointed in 1981 stayed on through the entire Reagan Administration; Bush41 even had to establish that Reagan-appointed U.S. Attorneys would not be permitted to continue on through the Bush41 Administration – indeed, even performance evaluations likely would create ripples, though this wouldn’t necessarily be a bad thing.¹⁵

Fourth, Sampson predicted that “as a political matter. . . I suspect that when push comes to shove, home-State Senators likely would resist wholesale (or even piecemeal) replacement of U.S. Attorneys they recommended. . .if Karl [Rove] thinks there would be political will to do it, then so do I.”

Sampson’s initial proposal to remove a percentage of U.S. Attorneys was not acted upon immediately, since both the White House Counsel’s Office and the Department of Justice were in transition. We did not find any response from Leitch to Sampson’s January 9 e-mail. Leitch told us he had no independent recollection of discussing the matter with Sampson, Rove, or anyone else before leaving the White House Counsel’s Office around this time.

However, Sampson’s proposal gained support in late February and early March 2005 after Gonzales was confirmed as Attorney General and Miers was installed as White House Counsel. At that time Sampson was appointed to be Gonzales’s Deputy Chief of Staff, and Gonzales authorized Sampson to proceed with a review for the purpose of identifying U.S. Attorneys for potential removal.

Gonzales told us that he endorsed the concept of evaluating the performance of U.S. Attorneys to see “where we could do better.” According to Gonzales, he told Sampson to consult with the senior leadership of the Department, obtain a consensus recommendation as to which U.S. Attorneys should be removed, and coordinate with the White House on the process. Gonzales told us that he did not discuss with Sampson how to evaluate U.S. Attorneys or what factors to consider when discussing with Department leaders which U.S. Attorneys should be removed.

The First List – March 2, 2005

According to Sampson, sometime in February 2005 White House Counsel Miers asked him to provide recommendations in the event the Administration decided to ask for resignations from a “subset” of U.S. Attorneys.

In response, Sampson annotated a chart that listed all Presidentially appointed, Senate-confirmed U.S. Attorneys and the date each assumed their office.¹⁶ On March 2, 2005, Sampson attended a regularly scheduled meeting of the judicial selection committee at the White House and gave Miers the 6-page typewritten chart, entitled “United States Attorneys - Appointment Summary (2/24/05).”

Many of the names on the chart were either crossed-through or highlighted in bold. In an e-mail to Miers after the March 2 meeting, Sampson explained the meaning of the markings on the chart:

bold = Recommend retaining; strong U.S. Attorneys who have produced, managed well, and exhibited loyalty to the President and Attorney General.

strikeout = Recommend removing; weak U.S. Attorneys who have been ineffectual managers and prosecutors, chafed against Administration initiatives, etc.

nothing = No recommendation; have not distinguished themselves either positively or negatively.

On the chart, as indicated by a strikeout of names, Sampson recommended removing the following U.S. Attorneys:¹⁷

David York (S.D. Ala.);
H.E. “Bud” Cummins (E.D. Ark.);
Carol C. Lam (S.D. Cal.);
Greg Miller (N.D. Fla.);
David Huber (W.D. Ky.);
Margaret M. Chiara (W.D. Mich.);
Jim Greenlee (N.D. Miss.);
Dunn O. Lampton (S.D. Miss.);
Anna Mills Wagoner (M.D. N.C.);
John McKay (W.D. Wash.);
Kasey Warner (S.D. W.Va.); and
Paula Silsby (D. Me.).¹⁸

Later that evening, Sampson e-mailed Miers a revised chart in which he struck out two additional names:

Thomas B. Heffelfinger (D. Minn.);
Steven Biskupic (E.D. Wis.).¹⁹

In the e-mail, Sampson also bolded Matt Orwig, E.D. Texas, (recommending retention of this U.S. Attorney) “based on some additional information I got tonight.” Sampson told us that he could not recall who supplied the new information about Orwig or what the information was.

All told, Sampson’s chart placed in the “strikeout” category 14 U.S. Attorneys, including 4 of the 9 who were ultimately told to resign in 2006: Bud Cummins, Carol Lam, Margaret Chiara, and John McKay. On the other hand, the chart placed in the “bold” category as “recommend retaining” 26 U.S. Attorneys, 2 of whom – David Iglesias and Kevin Ryan – were also among the 7 who were told to resign on December 7, 2006. The chart placed in the “no recommendation” category 39 U.S. Attorneys, 3 of whom – Paul Charlton, Todd Graves, and Daniel Bogden – were told to resign in 2006.

According to Sampson, his assessment of U.S. Attorneys reflected in the chart he e-mailed to Miers on March 2, 2005, was based both on judgments he formed about these U.S. Attorneys during his work at the White House and the Department over the previous 4 years and on input from other officials at the Department. Sampson told congressional investigators that in early 2005 he had consulted and relied upon several Department officials, including EOUSA Director Mary Beth Buchanan, Principal Associate Deputy Attorney General William Mercer, Deputy Attorney General James Comey, and Associate Deputy Attorney General David Margolis, for recommendations concerning which U.S. Attorneys to remove. However, Sampson told us that he could not specifically recall what these individuals said about particular U.S. Attorneys at the time. Sampson also said he viewed the initial chart as a “quick and dirty” response to Miers’s inquiry, and as a “preliminary list” that would be subject to “further vetting . . . down the road” from Department leaders.

Sampson said he did not share the March 2 chart with Gonzales or any other Department officials at the time, but believed he briefed Gonzales about it. Gonzales told us he did not recall seeing the chart or being briefed about the names on it.

Input from Comey and Margolis

We interviewed all the officials with whom Sampson said he consulted when preparing the March 2 chart. Only Deputy Attorney General Comey and Associate Deputy Attorney General Margolis said they recalled discussions with Sampson in early 2005 about this issue.

Comey said he recalled being consulted by Sampson before Sampson sent the U.S. Attorney chart to Miers in early March 2005. Based on his calendar entries, Comey said he met with Sampson on February 28, 2005, 4 days before Sampson e-mailed the chart to Miers. Comey told us that Sampson had asked for his input on the “weakest” U.S. Attorneys in the event an opportunity arose to make changes in the U.S. Attorney ranks. Comey said he was confident he named Kevin Ryan and Dunn Lampton as “weak” U.S. Attorneys, and he believed he placed Thomas Heffelfinger and David O’Meilia in that category as well.²⁰ However, Comey said he was not aware at the time that Sampson’s inquiry was part of a “process” to identify U.S. Attorneys for removal and was “close to certain” that Sampson did not attribute any role to the White House in the matter. Comey also stated that he considered this aspect of his February 28 meeting to be a “casual” conversation with Sampson that was raised “offhandedly” as a prelude to a different and more important subject to be discussed at the meeting – the possible merger of the Attorney General’s and Deputy Attorney General’s staffs.

Margolis told congressional investigators that sometime in late 2004 or early 2005 Sampson broached with him the subject of replacing certain U.S. Attorneys, although Margolis said he could not recall specifically when he and Sampson discussed the matter. According to Margolis, Sampson told him about Miers’s idea of replacing all U.S. Attorneys – an idea both he and Sampson considered unwise. Margolis said that Sampson believed, however, that Miers’s idea could be used as a way to replace some weak U.S. Attorneys and thereby make the U.S. Attorney ranks stronger in the second Bush term. Margolis said he strongly endorsed the idea of replacing weak or mediocre U.S. Attorneys. He said that in the past U.S. Attorneys were generally removed only for misconduct or gross incompetence tantamount to misconduct.

Margolis said that when he and Sampson first discussed the issue, Sampson had a list of all current U.S. Attorneys and asked Margolis for his views on who the Department should consider removing. Margolis told us he was firm that two U.S. Attorneys should be removed on performance grounds – Ryan and Lampton. Margolis told us that he also suggested then (and more strongly later) that Chiara should be considered for removal. Margolis said he was aware of management concerns about Ryan and Chiara, and he said he had serious concerns about Lampton. Margolis also stated that there were roughly eight additional U.S. Attorneys who warranted a closer look, either because of general performance, specific conduct, or both.²¹

Reaction to the List from the Office of the White House Counsel

Sampson said he received no immediate reaction from Miers to the names he had marked for possible removal on the March 2 chart, and said he did not discuss the basis for his individual recommendations with Miers. He said the only comment he recalled Miers making about the chart was that she was “pleased” to see that Sampson had placed Matt Orwig’s name in bold, indicating he should be kept. According to Sampson, Miers knew Orwig from Texas and thought highly of him.

In approximately February or March of 2005, the White House Office of Political Affairs was notified about the initiative to remove certain U.S. Attorneys. White House Political Affairs Director Sara Taylor told us that shortly after she began as Director of Political Affairs in February 2005, she became aware that the White House was considering replacing U.S. Attorneys. Taylor said that Miers and others in both the White House Counsel’s Office and the Department of Justice had discussed the idea that the advent of the President’s second term provided an opportunity to replace some of the U.S. Attorneys.

On March 23, 2005, Associate White House Counsel Dabney Friedrich, acting at Miers’s request, sent Sampson an e-mail asking him to confirm Miers’s understanding that the “plan” for replacing U.S. Attorneys was “to wait until each has served a four-year term.” Sampson replied that Gonzales, Miers, Friedrich, and he should discuss the issue, but it was his advice to replace certain U.S. Attorneys “selectively” (based on the March 2 chart) after the expiration of their 4-year terms. Sampson expressed concerns that to do otherwise might create turmoil with home state politicians and within the Department. Sampson also stressed that these were his views and “should not be attributed to Judge [Gonzales].” Friedrich replied that she agreed “completely” with Sampson’s recommendation and would be surprised to hear differently from either Miers or Gonzales.

After this e-mail exchange between Sampson and Friedrich in late March 2005, it appears that the U.S. Attorney removal process remained dormant for several months. Sampson told us that Gonzales agreed with him that nothing should be done until the U.S. Attorneys had served out their 4-year terms. Sampson also told us he believed that Miers had adopted his advice to wait until the U.S. Attorneys had completed their 4-year terms before taking any action. Because the earliest term-expiration date of any U.S. Attorney on his chart did not come until November 2005, Sampson said he saw no urgency to the matter and put the issue on the back burner.

Fall 2005 – Further Consultations about the Removal of U.S. Attorneys

Battle

In October 2005, Monica Goodling moved from EOUSA to become Senior Counsel in the Attorney General’s Office. Around this time, Goodling told Michael Battle, who had succeeded Mary Beth Buchanan as EOUSA Director in June 2005, that changes could be forthcoming in the U.S. Attorney ranks. According to Battle, Goodling told him the Administration wanted to give others an opportunity to serve and asked him if he had concerns about any particular U.S. Attorneys or “problematic” districts.

According to Battle, after meeting with Goodling he reviewed a list of U.S. Attorneys for possible removal. He said no names “jumped out” at him and he put the matter aside, expecting a follow-up call from Goodling that never came. Battle said neither Goodling nor Sampson thereafter sought his opinion on which U.S. Attorneys should be replaced. Battle said he did not hear from either of them on the subject until late January 2006, when Goodling called him with specific instructions to ask for the first U.S. Attorney resignation: Todd Graves.

Mercer

According to Mercer, sometime shortly after the 2004 election Sampson told him that Miers had proposed replacing all of the U.S. Attorneys, but Sampson had dissuaded her. Mercer said that sometime during the fall of 2005, Sampson asked for Mercer’s views on the performance of a number of U.S. Attorneys. Mercer said he did not recall Sampson stating that certain U.S. Attorneys would be asked to resign, but it was clear to Mercer that that was Sampson’s purpose in asking for his views.

Mercer said they did not have a formal meeting about the issue, but in the course of the conversation Sampson indicated that changes might be made in certain districts with productivity problems or policy compliance issues. Mercer said he recalled discussing with Sampson concerns about Lam’s immigration record, and Mercer believed they also discussed concerns about Ryan’s management. Mercer said he could not recall which other U.S. Attorneys he and Sampson discussed. Mercer said he had the sense that Sampson was also consulting with others, but he did not know who. According to Mercer, he had no further conversations with Sampson about the removal of U.S. Attorneys until December 2006 when the removal plan took effect.

Comey

In addition to the February 2005 discussion between Sampson and Comey discussed above, we found e-mail records indicating that Sampson broached the subject of removing certain U.S. Attorneys with Comey in August 2005, shortly before Comey’s resignation.²² On August 11, 2005, Sampson sent Comey an e-mail requesting a brief meeting to “get your assessment of our current crop of USAs.” In the e-mail, Sampson pointed out that U.S. Attorneys’ 4-year terms would begin to expire in September, and expressed the view that “there will be some sentiment to identify the 5-10 weak sisters, thank them for their four years of service, and give someone else the opportunity to serve.” According to an e-mail from Comey to two other Department officials the next day, Sampson asked him about Chiara, Wagoner, McKay, Sheldon Sperling, and James Vines. Comey’s e-mail indicated that he agreed with Sampson that Vines was weak but had no strong views on the others, except McKay who, Comey told Sampson, had been “great on my information sharing project.”

Buchanan

Buchanan, who served as Director of EOUSA from May 2004 to June 2005, told us that Sampson informed her sometime after the 2004 election that he was undertaking a review of U.S. Attorneys, that some might be asked to leave, and that he might ask for her input. Buchanan said that Sampson was “very interested in management” issues and would occasionally ask her opinion on the 10 “best” and “worst” U.S. Attorneys, although she said she never directly answered his question. She told us, however, that she was familiar with the problems Ryan and Lam were having in their districts and discussed both of them with Sampson.

We showed Buchanan Sampson’s March 2005 chart to determine whether she could recall discussions with Sampson about any of the U.S. Attorneys on the list whom Sampson had categorized as “weak.” Buchanan said that of all the names on the list, Lam’s name stood out because by then Department officials were concerned about her performance in immigration and Project Safe Neighborhoods matters.²³ Buchanan also stated that sometime in the spring of 2005, she and Margolis discussed sending a Special EARS team to investigate complaints about Ryan’s management of the San Francisco U.S. Attorney’s Office. Buchanan said she also discussed with Sampson concerns about Heffelfinger’s focus on Native American issues, but she said she did not recall expressing any negative views about any other U.S. Attorney’s performance.

Buchanan said that before she left EOUSA in June 2005 she probably discussed with Sampson her concerns about Graves, who first appeared on Sampson’s January 2006 list. In the spring of 2005, Buchanan said, she talked to Graves about a Missouri newspaper article reporting that Graves’s wife was awarded a lucrative non-competitive contract by Missouri Governor Matt Blunt to manage a local motor vehicle fee office for the state. According to Buchanan, she “probably would have” discussed that matter with Sampson, as well as her observation that Graves was not an active member of the Attorney General’s Advisory Committee (AGAC) during his 2-year stint heading the AGAC’s Child Exploitation and Obscenity Committee.

Other than Comey, Margolis, Mercer, Buchanan, and probably Goodling, we identified no other Department officials who discussed the performance of U.S. Attorneys with Sampson before January 2006.

The Second List – January 2006

Sampson’s January 1, 2006, Draft List

Sampson drafted a memorandum dated January 1, 2006, to Miers stating that he was responding to her inquiry concerning “whether President Bush should remove and replace U.S. Attorneys whose 4-year terms have expired.” Sampson said he could not remember specifically what prompted him to send the e-mail in January, and he speculated that it might have been just because it was the new year.

Sampson recommended in the memorandum that the Department and the White House Counsel’s Office “work together to seek the replacement of a limited number of U.S. Attorneys.” Similar to his e-mail of January 9, 2005, to Deputy White House Counsel Leitch, Sampson’s 3-page draft memorandum to Miers in January 2006 cited the statutory authority for U.S. Attorneys’ appointments, term of office, and removal. Sampson’s memorandum also pointed out “practical obstacles” to removing and replacing U.S. Attorneys, such as the significant disruption a “wholesale removal” would cause to the Department’s work, Senator’s opposition to the removal of U.S. Attorneys in their home districts, and the time-consuming process of finding suitable replacements who would have to undergo the background investigation process.

Sampson’s memorandum proposed that “a limited number of U.S. Attorneys could be targeted for removal and replacement, mitigating the shock to the system that would result from an across-the-board firing.” Under his proposal, EOUSA “could work quietly” with the designated U.S. Attorneys to “encourage them to leave government service voluntarily,” thereby giving them time to find work in the private sector and allowing them to “save face.” Sampson proposed that after the targeted U.S. Attorneys announced their resignations, the White House Counsel’s Office could work with the political leadership of the affected states to obtain recommendations for permanent replacements. Sampson also proposed that the eventual nominee for each vacated office could be appointed as an Interim U.S. Attorney by the Attorney General, pending Senate confirmation. In the January 1, 2006, memorandum to Miers, Sampson identified nine U.S. Attorneys with expiring terms who should be considered for removal:

H.E. “Bud” Cummins (E.D. Ark.);
Kevin V. Ryan (N.D. Cal.);
Carol C. Lam (S.D. Cal.);
Margaret M. Chiara (W.D. Mich.);
Thomas B. Heffelfinger (D. Minn.);
Dunn O. Lampton (S.D. Miss.);
Todd P. Graves (W.D. Mo.);
Anna Mills S. Wagoner (M.D. N.C.)²⁴; and
David O’Meilia (N.D. Okla.)

Sampson also recommended the removal and replacement of two U.S. Attorneys who were serving in an “acting” capacity: Paula Silsby (D. Me.) and William Leone (D. Colo.).²⁵

For the first nine named U.S. Attorneys, Sampson noted the term expiration date and the names of the home-state Senators. For six of the nine, Sampson also suggested replacement candidates, including Tim Griffin for the Eastern District of Arkansas, who we discuss in Chapter Five.²⁶

Sampson shared his draft memorandum with Goodling, who suggested some changes. She disagreed with two of Sampson’s recommendations, Wagoner and Lampton. Goodling wrote on the draft that she “would keep” Lampton based on his performance in the aftermath of Hurricane Katrina. As to Wagoner, Goodling noted that she “would not put her on this list” based on Wagoner’s performance in Project Safe Neighborhood (PSN) and her cooperation on “Patriot [Act matters] + AG visits, etc.”

Goodling also noted two other categories: (1) “other problem districts,” under which she named Paul Charlton (D. Ariz.); and (2) “Quiet/not sure about,” under which she named Daniel Bogden (D. Nev.) and Tom Marino (M.D. Pa.), all of whom appeared on subsequent lists. Shortly thereafter, Sampson also created a draft of a 3-tier list containing 14 names, including Charlton (Tier 1), Bogden (Tier 2), and Marino (Tier 3).

We found no one else who said they saw the January 1, 2006, draft before it was revised and sent by e-mail to Miers. Attorney General Gonzales told us he did not see it at the time and did not recall discussing it with Sampson or Goodling.

The January 9, 2006, Memorandum from Sampson to the White House

On January 9, 2006, Sampson sent Miers an e-mail which essentially incorporated his draft memorandum with Goodling’s suggested modifications. Based on Goodling’s recommendations, Sampson removed Wagoner’s and Lampton’s names from the list, thereby reducing to nine, including Silsby and Leone, the number of U.S. Attorneys recommended for removal. The nine U.S. Attorneys on the January 9 list were:

H.E. “Bud” Cummins (E.D. Ark.);
Carol C. Lam (S.D. Cal.);
Kevin V. Ryan (N.D. Cal.);
Margaret M. Chiara (W.D. Mich.);
Thomas B. Heffelfinger (D. Minn.);
Todd P. Graves (W.D. Mo.);
David O’Meilia (N.D. Okla.);
Paula Silsby (D. Me.); and
William Leone (D. Colo.).

In his e-mail to Miers, Sampson proposed a 2-step removal process. He wrote that first, there needed to be agreement on the “target list” of U.S. Attorneys, and second, EOUSA needed to explore with the designated U.S. Attorneys their “intentions” and to indicate to them that they “might want to consider looking for other employment.”

After naming the nine U.S. Attorneys recommended for removal, Sampson described the basis on which he arrived at his recommendations: “I list these folks based on my review of the evaluations of their offices conducted by EOUSA and my interviews with officials in the Office of the Attorney General, Office of the Deputy Attorney General, and the Criminal Division.”

Sampson’s mention of “evaluations conducted by EOUSA” referred to EARS evaluations, the periodic evaluations of U.S. Attorneys’ Offices conducted by EOUSA. These reviews, which are typically conducted by a team of supervisory AUSAs selected from other districts, are described in more detail in Chapter Two of this report.

Notwithstanding Sampson’s representation in his e-mail to Miers, his recommendations were not based on his review of the pertinent EARS evaluations. Sampson admitted to us that he did not personally review EARS evaluations. Instead, Sampson told us that he had talked to Margolis “generally” about how various U.S. Attorneys were doing, and he “understood” that Margolis had reviewed EARS evaluations. Margolis confirmed that he reviews all EARS reports, but told us that the vast majority are favorable. According to Margolis, EARS evaluations are designed to help a U.S. Attorney manage his or her office, not to “help me decide who to fire.” Margolis said that he would only give serious weight and consideration to an EARS evaluation in the rare instance it was negative. In such an instance, Margolis told us, he would deliver a copy of the EARS report to the Principal Associate Deputy Attorney General or the Deputy Attorney General’s Chief of Staff (not the Attorney General’s Chief of Staff) with a note that there was a serious problem in the district.

With one exception, Margolis told us that he recalled no such problem in any of the districts where Sampson recommended a change in leadership. The lone exception was the Northern District of California, where Kevin Ryan was the U.S. Attorney.²⁷ Moreover, as discussed in the chapters describing the reasons proffered for removal of the individual U.S. Attorneys, we found that EARS evaluations did not support most of the recommendations that Sampson made.

Sampson acknowledged to us that the representation in his e-mail to Miers that his recommendations were premised on his review of EARS evaluations was not accurate. Sampson said that it would have been better if he had said that it was based on his understanding of somebody else’s understanding of the reviews of the offices.

With respect to his reference to “interviews” of Department officials, Sampson testified to Congress that he had spoken with Goodling (from the Attorney General’s Office), and Margolis (from the Deputy Attorney General’s Office). However, contrary to the statement in his January 9 e-mail, he testified that he did not believe he had spoken to anyone in the Criminal Division except “in the most general terms.” In addition, Sampson testified that he spoke with Buchanan and Comey. Sampson acknowledged that he did not conduct formal interviews with anyone, but rather said he “was aggregating views from different people” and did so by sounding people out in an informal setting in order to get their “frank assessments” of U.S. Attorneys. Sampson said he may have been clearer with some than with others as to the purpose for which he was gathering their views.

The First Removal: Todd Graves

After sending his January 9, 2006, e-mail to Miers, Sampson did not receive an immediate response to his proposal, and no action was taken on his overall proposal for several months. Nevertheless, shortly after Sampson’s January 9 proposal, action was taken to seek the resignation of Todd Graves, the U.S. Attorney for the Western District of Missouri.

On January 19, 2006, Sampson sent an e-mail to EOUSA Director Battle asking him to call when he had a few minutes to discuss Graves. Several days later (apparently before Battle spoke to Sampson), Goodling called Battle and told him to call Graves to request his resignation. Goodling instructed Battle to tell Graves only that the Administration had decided to make a change, that his service was appreciated, and that the request was not based on any misconduct by Graves but simply to give someone else a chance to serve.

Shortly thereafter, on January 24, 2006, Battle called Graves and communicated the message as instructed by Goodling. Graves said he was “stunned” and “shocked” by the call, and said Battle would not explain why his resignation was sought. Graves subsequently complied with the instruction and on March 10, 2006, announced his resignation, effective March 24.

Although Graves was not originally identified in the 2007 congressional hearings as one of the U.S. Attorneys who was asked to resign in 2006 as a result of the “process” initiated by Sampson, we considered him part of that group. He was targeted for removal on Sampson’s January 9, 2006, list, and the script Battle followed in seeking Graves’s resignation was identical to the one he followed in conversations with the other eight U.S. Attorneys who were later told to resign.

However, as we discuss in greater detail in Chapter Four of this report, no Department employee involved in the process could explain why Graves was told to resign. Battle, who placed the call at Goodling’s direction, said he was not given the reasons. Goodling, who directed Battle to call Graves, stated in her congressional testimony that she would have done so only on instruction from Sampson. Sampson told congressional investigators that he had no recollection of the matter, believed that Goodling had handled it, and assumed that it was based on a finding of misconduct by Margolis. Margolis told us that there was no misconduct finding against Graves and expressly denied playing any role in Graves’s removal. Gonzales told us that he had no recollection about being consulted about Graves’s removal.

We also found no documentation within the Department describing the reasons that Graves was told to resign. However, we found that the White House Counsel’s Office played a role in his resignation. Although Sampson told congressional investigators that he had no recollection as to why he placed Graves’s name on the January 9 removal list and disclaimed any involvement in the January 24 resignation request to Graves, Sampson acknowledged to us that he discussed with the White House Counsel’s Office that the staff of Missouri’s Republican Senator Christopher Bond was urging the White House Counsel’s Office to remove Graves. We describe this issue, and the White House’s role in the removal of Graves, in more detail in Chapter Four.

The Third List – April 14, 2006

The proposal advanced by Sampson in his January 9 e-mail to Miers was not implemented at that time. As Sampson described it, the process was in a “long thinking phase that bumped along and really didn’t have any traction to it” until the fall of 2006. According to Sampson, either Miers or Deputy White House Counsel William Kelley raised the issue from time to time, prompting Sampson to prepare another list, but then nothing happened, causing Sampson to question whether the removal proposal would ever be implemented.

We found that on April 14, 2006, 4 months after his January 9 e-mail, Sampson sent an e-mail to Associate White House Counsel Dabney Friedrich revising the list he had proposed in his January e-mail to Miers. Sampson recommended in the e-mail that the “White House consider removing and replacing the following U.S. Attorneys upon the expiration of their 4-year terms”:

Margaret M. Chiara (W.D. Mich.);
David O’Meilia (N.D. Okla.);
H.E. “Bud” Cummins (E.D. Ark.); and
Carol C. Lam (S.D. Cal.).

Sampson also proposed the removal and replacement of Paula Silsby, the Interim U.S. Attorney for Maine, and suggested that he could add another three to five names “[i]f you pushed me.” Three names that were on Sampson’s January 9 list were omitted from this updated list: Graves, Heffelfinger, and Ryan.

Heffelfinger

In an e-mail to Friedrich immediately after he sent her the new list on April 14, 2006, Sampson pointed out that Graves and Heffelfinger, two of the names on his January 9 list, “already have left office.” As discussed above, Graves had been told in late January to resign and he left office on March 24, 2006. Heffelfinger had also resigned from the Department, effective March 1, 2006.

Unlike Graves, Heffelfinger told us he resigned without prompting from anyone at the Department. Heffelfinger said that he began thinking about leaving in the fall of 2005, and made the final decision on January 20, 2006, after learning he was eligible for early retirement. Heffelfinger said that he met with Deputy Attorney General McNulty on that day to inform him of his intentions, and Heffelfinger announced his resignation during the week of February 13. His resignation took effect on March 1, 2006. Heffelfinger said at that time he had no idea that Sampson had ever proposed his removal.²⁸

Ryan

Of the nine names recommended for removal on Sampson’s January 9 list, only one still serving U.S. Attorney, Kevin Ryan, was omitted from the April 14 e-mail to Friedrich. At this time Ryan’s performance as U.S. Attorney for the Northern District of California had been subjected to sharp criticism from former prosecutors in the office, and in March 2006 an AUSA then serving in the office wrote a letter to the Department blaming Ryan for a mass exodus of experienced AUSAs during his tenure. That letter became the subject of a San Francisco newspaper article in early March recounting considerable discord within the USAO.

As discussed in footnote 27, an EARS evaluation of Ryan’s office took place during the week of March 27, 2006. After the EARS evaluation, the team leader prepared a “Draft Significant Observations” memorandum for the Director of EOUSA highlighting his observations concerning high turnover and low morale, which line AUSAs attributed to Ryan’s poor management style and practices. A draft report was completed in late May 2006 and provided to Ryan for review and comment. In July 2006, Ryan wrote a lengthy response taking exception to the draft report’s conclusions concerning his management of the office.

According to Margolis, based on the results of the March evaluation, a special EARS team was commissioned to conduct a follow-up evaluation of the office. That evaluation occurred in late October 2006. A draft report was delivered to Margolis and Battle on November 22, 2006. Like the first one, this special evaluation concluded that the U.S. Attorney’s Office suffered from serious morale problems attributable in large part to Ryan’s management style.

Sampson told us he deleted Ryan’s name from the April 14 list because he was aware of the negative EARS evaluation and felt that it would be “unfair and inappropriate” to remove Ryan in the midst of an ongoing evaluation. Sampson also expressed the view 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.²⁹

The Plan to Replace Cummins with Griffin

On May 11, 2006, in response to an inquiry from Deputy White House Counsel William Kelley after a meeting the previous day at the White House, Sampson forwarded to Kelley his April 14 e-mail to Friedrich. In the e-mail, Sampson asked Kelley to call him to discuss having Rachel Brand (then head of the Department’s Office of Legal Policy) replace Chiara as the U.S. Attorney in the Western District of Michigan and Tim Griffin replace Bud Cummins in the Eastern District of Arkansas. Sampson also stated in the e-mail to Kelley that he wanted to discuss the “real problem we have right now with Carol Lam that leads me to conclude that we should have someone ready to be nominated on 11/18, the day her 4-year term expires.”

As discussed below, in response to this e-mail to Kelley no decision was made on Sampson’s overall proposal to remove the U.S. Attorneys. However, a decision was made to remove Bud Cummins and replace him with Tim Griffin.³⁰

Miers’s Request Regarding Griffin

Sampson told Congressional investigators that Miers asked him in the spring of 2006 whether a place could be found for Griffin in the U.S. Attorney ranks.³¹ Sampson said he examined his list and determined that since Cummins was already identified on the January 9 list as one of the prospective U.S. Attorneys to be removed, he felt he could accommodate Miers’s request.³² Sampson said that after consulting with a “few’’ people at the Department, he informed Miers that he thought it could be done. Sampson said that other than Goodling and the Attorney General, he could not recall whom he consulted about the Griffin matter. Gonzales told us he did not recall having any discussions with Sampson about Cummins or Griffin at the time.

According to e-mail records, in early June the White House formally approved Griffin’s selection for the U.S. Attorney position. On June 13, Goodling informed Sampson that the pre-nomination paperwork on Griffin had been completed. She also told Sampson that she would talk to EOUSA Director Battle the next morning, June 14, and also inform the Office of the Deputy Attorney General that “we are now executing this plan.”

Battle Tells Cummins to Resign

On June 14, 2006, Battle, acting on instructions from Goodling, called Cummins to ask for his resignation. In delivering the message, Battle followed the same talking points he had received from Goodling for the call to Graves in January. Battle thanked Cummins for his service, stated that the Administration wanted to give someone else the opportunity to serve as U.S. Attorney, and asked how much time Cummins needed to make arrangements to leave office.

Battle told us that he considered Cummins to be a good U.S. Attorney. Battle also said he was not told why Cummins was asked to resign or who would replace him. He said Cummins told him that he suspected the change was being made so Griffin could become U.S. Attorney.³³

Sampson Suggests that Patrick Fitzgerald Be Removed

During the summer of 2006, no further action was taken on the plan to remove additional U.S. Attorneys. However, during this time, Sampson met at least once with Miers and Deputy White House Counsel Kelley to discuss the proposal. According to Sampson, sometime during the summer he met informally with Miers and Kelley after a judicial selection meeting at the White House. At this meeting they discussed the plan to remove U.S. Attorneys, and Sampson broached the subject of including Patrick Fitzgerald, the U.S. Attorney for the Northern District of Illinois, on the removal list.

Sampson testified to Congress that although Fitzgerald was widely viewed as a strong U.S. Attorney, Sampson had placed Fitzgerald in the “undistinguished” category on the initial list he sent to the White House in March 2005 because he knew that Fitzgerald was handling a very sensitive case and Sampson did not want to rate Fitzgerald one way or the other. At that time, Fitzgerald was serving as the Special Counsel investigating the leak of information relating to Central Intelligence Agency employee Valerie Plame, which ultimately resulted in the conviction of the Vice President’s Chief of Staff, I. Lewis “Scooter” Libby, for perjury and making false statements.

Sampson testified that when he brought up Fitzgerald’s name as a U.S. Attorney who could be added to the removal list, Miers and Kelley “said nothing – they just looked at me.” Sampson testified that as soon as he said it, he knew it was the wrong thing to do. He said he was not sure why he said it but thought that maybe he was “trying to get a reaction from [Miers and Kelley].” He said he “immediately regretted it” and retracted the suggestion. Sampson later told congressional investigators that it was “immature and flippant” of him to have even raised such a sensitive issue. Sampson also testified that he never seriously considered putting Fitzgerald on the list, and we found no evidence that Sampson ever discussed removing Fitzgerald with anyone at the Department.

The Fourth List – September 13, 2006

On September 13, 2006, Miers sent an e-mail to Sampson asking for his “current thinking on holdover U.S. Attorneys.” In a reply e-mail later that day, Sampson conveyed to Miers his current breakdown of “the U.S. Attorney ranks.”

After noting current and anticipated vacancies for U.S. Attorney positions, Sampson listed the following U.S. Attorneys under the heading “USAs We Now Should Consider Pushing Out:”³⁴

Paul Charlton (D. Ariz.);
Carol C. Lam (S.D. Cal.);
Greg Miller (N.D. Fla.);
Paula Silsby (D. Me.);
Margaret M. Chiara (W.D. Mich);
Daniel Bogden (D. Nev.);
Thomas Marino (M.D. Pa.); and
John McKay (W.D. Wash.).

In a summary section of the e-mail, Sampson emphasized that he was “only in favor of executing on a plan to push some USAs out if we really are ready and willing to put in the time necessary to select candidates and get them appointed – it will be counterproductive to DOJ operations if we push USAs out and then don’t have replacements ready to roll.”

In his e-mail, Sampson also “strongly” recommended that the Administration “utilize the new statutory provisions that authorize the AG to make USA appointments.” As described in Chapter Two, before March 2006 the Attorney General could only appoint an Interim U.S. Attorney for a 120-day term, and upon expiration of the appointment the federal district court could make an indefinite appointment until the vacancy was filled by a confirmed presidential appointee. At the request of the Department, however, a provision had been included in amendments to the Patriot Act in March 2006 giving the Attorney General the authority to appoint an Interim U.S. Attorney until the vacancy was filled by a confirmed presidential appointee.³⁵

In his e-mail, Sampson explained his recommendation to use the new interim appointment power as follows:

We can continue to do selection in JSC [White House Judicial Selection Committee], but then should have DOJ take over entirely the vet and appointment. By not going the PAS route, we can give far less deference to home-State Senators and thereby get (1) our preferred person appointed and (2) do it far faster and more efficiently, at less political cost to the White House.

Before sending this e-mail to Miers, Sampson had sent a draft of the e-mail to Goodling and asked her for any “corrections.” He did not send the draft to anyone else in the Department. The draft he sent Goodling was identical to the final e-mail he sent Miers with one exception: Anna Mills Wagoner of the Middle District of North Carolina was among the U.S. Attorneys listed in Sampson’s draft to be “pushed out,” but was not included in the final e-mail he sent to Miers. We determined that about 20 minutes after receiving Sampson’s draft e-mail, Goodling replied that Wagoner’s name should be removed because “there are plenty of others there to start with and I don’t think she merits being included in that group at this time.”³⁶ Sampson then removed Wagoner from the list before sending the e-mail to Miers.

Sampson’s “Consensus” Process in Compiling the List

The list of U.S. Attorneys for removal that Sampson e-mailed to Miers on September 13 differed substantially from his April 14 list. One name, O’Meilia, came off the list while five others were added: McKay, Charlton, Bogden, Marino, and Miller.

Sampson told us that he placed McKay, Charlton, Bogden, Marino, and Miller’s names on the September 13 list based on information he had learned about them from a variety of sources.³⁷ He acknowledged, however, that these sources were not necessarily aware of Sampson’s intended use of the information. Sampson also said he could not recall who specifically provided the information that resulted in each name being added to the list.

In his congressional testimony, Sampson repeatedly described the process by which names were placed on the U.S. Attorney removal list as one of “consensus” among Department leaders. For example, in his Senate Judiciary Committee testimony on March 29, 2007, and his subsequent interviews by joint House and Senate Judiciary Committee staff, Sampson described himself as the “aggregator” of names and as the manager of the “process.” He testified before the Senate Judiciary Committee that “[i]t wasn’t that I wanted names on the list” and that, while he had his own views, there was no one specific U.S. Attorney that he “personally” thought should be on the list. Sampson also testified at his Senate Judiciary Committee appearance that he had “done no independent research” before removing any U.S. Attorney and had relied on Margolis, McNulty, and Mercer to make recommendations. He said he had “consulted with the Deputy Attorney General and others who would have reason to make an informed judgment about the U.S. Attorneys.”

However, we found that contrary to his testimony, Sampson did not add McKay, Charlton, Bogden, Marino, and Miller to the September 13 removal list as a result of discussions with Department leaders geared toward arriving at a consensus list of U.S. Attorneys to be recommended for removal. Aside from Goodling and possibly Gonzales, no other senior Department official was aware at that time that Sampson had sent to Miers the September 13 proposal, much less the two previous proposals recommending the removal of specific U.S. Attorneys. As previously noted, Battle told us that neither Goodling nor Sampson ever asked him about which U.S. Attorneys should be replaced. McNulty said he did not even become aware of the effort to remove U.S. Attorneys until late October 2006. Mercer said he had no conversations with Sampson about U.S. Attorneys, aside from his discussions about Lam in the fall of 2005. Margolis told us that aside from his discussions with Sampson in 2005, he did not recall having conversations with Sampson about removing U.S. Attorneys until sometime in November 2006.

Sampson told us he placed the additional names on the September 13 list based on “problems” he learned about over the summer, not because he “went and asked the Deputy Attorney General” or anyone else whether these particular U.S. Attorneys (or others) should be designated for removal. In response to our questions, Sampson stated that the “problems” he learned about between April and September with respect to McKay and Charlton involved specific conduct rather than overall performance. According to Sampson, McKay had “crossed swords” with the Deputy Attorney General’s Office over McKay’s endorsement of an information-sharing program, an issue we discuss in more detail in the chapter on McKay’s removal. In Charlton’s case, Sampson said he knew from his experience in the Attorney General’s Office, as well as from talking to McNulty and Elston, that Charlton had policy conflicts with the Deputy Attorney General’s Office over a death penalty case and the tape recording of FBI interrogations. Sampson said that in both of these matters Charlton was viewed as a maverick attempting to impose his will on significant issues that had national implications. We discuss in greater detail the reasons proffered for the removal of Charlton and McKay in Chapters Eight and Nine of this report, and our analysis of Sampson’s stated reasons.

With regard to Miller, Sampson told us he did not recall why he placed Miller’s name on the list, but said he had a general sense that Miller was mediocre. He described Bogden in the same way but offered no specifics to support his assessment of Bogden’s performance. Sampson said he placed Marino on the list because he perceived that Marino was not leading his office.

Sampson told us that the process of compiling the list of U.S. Attorneys for removal was neither “scientific” nor “formal.” Sampson said that when he discussed U.S. Attorneys with Department officials over time, he had a current chart listing all the names of the U.S. Attorneys on which he made notes. Sampson said he would keep the annotated chart until it became “dog-eared” and then he would throw it away and start over. Sampson said he “sometimes” made notes during his conversations with other Department officials, and at other times he either made no notes or made them “after the fact.” Sampson also told us that a lot of the information he gleaned from others he “just remembered.” Sampson described the discussions he had with Department officials about U.S. Attorneys as “largely an oral exercise” with “some really rough tracking.”

The Removal Plan Takes Shape

On September 17, 2006, Miers replied to Sampson’s September 13 e-mail by stating, “I have not forgotten I need to follow up.” Sampson told us that sometime in late September 2006, he discussed with Gonzales the status of his proposal to remove several U.S. Attorneys. At that time, according to both Gonzales and Sampson, Gonzales directed Sampson to coordinate with Department leadership, particularly McNulty, to make sure there was consensus on the recommendations.

Between September 13 and mid-November 2006, Sampson confined his discussions about the removal list to a small group: Goodling, Gonzales, McNulty, and Elston. According to Sampson, he did not discuss the September 13 list with Margolis or consult with him on later drafts of the list, even though Sampson described Margolis to congressional investigators as a “repository” of knowledge on U.S. Attorneys’ performance, and even though Sampson had sought Margolis’s views in the early stages of the process. Sampson stated that he “assumed” that McNulty would consult Margolis and that Sampson “relied” on McNulty and Elston to do so. However, neither McNulty nor Elston did, and Sampson never sought to verify his assumption or contact Margolis directly about the removal list.³⁸

In late September or early October 2006, Sampson told Elston that the U.S. Attorney removal plan was moving forward. According to Elston, Sampson asked him to consult with McNulty and put together a list of U.S. Attorneys they would recommend for removal. Elston said he mentioned the concept to McNulty, and, according to Elston, McNulty was not “wild about it.” Elston said he took no other action on Sampson’s request because of the press of other business, as well as his and McNulty’s lack of enthusiasm for the plan.

On October 17, Sampson, having heard nothing from the Deputy Attorney General’s Office, sent Elston an e-mail in which he forwarded his e-mail exchanges with Miers from September 13 and 17, including Sampson’s proposal for “pushing out” certain U.S. Attorneys. In his e-mail to Elston, Sampson referred him to “my list of U.S. Attorneys we should consider replacing” and asked if his list “match[ed] up” with Elston’s list. Although Elston told us that he had created no such list, Elston replied by e-mail to Sampson’s question about whether their lists matched: “Very much so – I may have a few additions when I get back to my desk.”

After receiving the October 17 e-mail from Sampson, Elston discussed Sampson’s September 13 U.S. Attorney removal list with McNulty. According to Elston, McNulty’s instinct from the “get-go” was that this was a “bad idea” and McNulty asked Elston, “Are we really doing this[?].”

McNulty told congressional investigators that even though he was aware of concerns about each of the U.S. Attorneys targeted for removal, he was “a softie” when it came to addressing such concerns with the U.S. Attorneys directly, and said the removal plan was contrary to the way he would have addressed such concerns. However, McNulty said he did not express his reservations about the removal plan to Sampson or the Attorney General.

McNulty told us that when he heard from Elston about the removal plan at this point, he was surprised because he had no inkling about such a removal plan. However, he did not object to the plan. McNulty said that the way Elston presented the plan to him was along the lines of “here is the idea, and here are the names of individuals identified [for removal].” McNulty said he understood from Elston that he was supposed to object if he did not agree that certain names belonged on the list.

When we asked McNulty why he did not object to the plan, he told us that he was “predominantly deferential” because he viewed Sampson and the White House as “the personnel people [who] . . . decide who comes and who goes.” He also said he thought the removals were going to be handled in a way that would not harm the U.S. Attorneys who were being asked to resign.

Elston told us that he informed Sampson a few days after the October 17 e-mail that he had no additions to the list.

Elston’s List – November 1, 2006

However, we found that on November 1, 2006, Elston sent a short e-mail to Sampson with the subject line “Other Possibilities”:

These have been suggested to me by others:

Chris Christie [D. N.J.];
Colm Connelly [D. Del.];
Mary Beth Buchanan [W.D. Pa.];
John Brownlee [W.D. Va.];
Max Wood [M.D. Ga.].

The e-mail named no sources and offered no reasons or explanations for the U.S. Attorneys on Elston’s list.

Elston told us that his November 1 e-mail was not a response to Sampson’s earlier request that he and McNulty prepare a list of U.S. Attorneys they recommended for removal. Rather, according to Elston, shortly after Elston told Sampson that he and McNulty had no additions for Sampson’s October 17 list, Sampson asked him to check with others in the Department to see if there were other U.S. Attorney “problems.” The idea, as Elston said he understood it from Sampson, was that there were only 2 years left in the Administration and if changes in the U.S. Attorney ranks were to be made, this was the time to do it. Elston said that in keeping with that premise, Sampson wanted to ensure that all U.S. Attorney issues had been identified so a decision on all U.S. Attorney removals could be made at one time.

Elston said that after receiving Sampson’s request, he spoke with four or five Department officials, primarily in the Tax and Criminal Divisions (including Criminal Division Assistant Attorney General Alice Fisher and her Chief of Staff Matthew Friedrich), to ascertain whether there were any issues with U.S. Attorneys that needed to be explored. Elston said the names on his November 1 e-mail were the product of his “casual inquiries” on Sampson’s behalf.

Elston also told us that his November 1 list did not constitute his recommendation that the named individuals be removed from office. He maintained in his interview with us that he did not believe any of the five U.S. Attorneys warranted removal. Elston said that he also expressed that view to Sampson when they discussed his November 1 list. He said that Sampson concurred that the five should not be added to the list. When we asked Elston why he furnished the names to Sampson if he did not endorse their removal, he said that he was simply doing what Sampson asked him to do: find out if other Department managers had issues with any U.S. Attorneys and report back on the results. According to Elston, his November 1 e-mail was not intended or taken as a recommendation for action.

Sampson recalled things differently. According to Sampson, he had asked Elston to “vet” the October 17 list with McNulty to see if any names should be added to or removed from the list. Sampson told us he did not know where Elston had obtained the additional names, but he understood Elston’s list to be names that McNulty and Elston, and maybe Margolis, wanted to add to the list. Sampson said he believed that he and Elston discussed the basis for including the five additional names, and Sampson said he did not agree that any of the names on Elston’s list should be included on the removal list. Sampson said that the process was that if one person thought that someone should not be on the list, that name would not be included. Consequently, none of the names on Elston’s list were added to Sampson’s removal list.

Both McNulty and Margolis told us that Elston did not consult with them about the names on his November 1 list, and both said they did not know how Elston obtained the names.

The Fifth List – November 7, 2006

From September 13 until November 7, no changes appeared on Sampson’s proposed U.S. Attorney removal list. On the evening of November 7, Sampson sent an e-mail to Elston (with a copy to McNulty) asking him to review the “Plan for Replacing Certain United States Attorneys” proposed in the e-mail and to provide comments as soon as possible so that he could forward the plan to Miers that evening. The e-mail included a list of nine U.S. Attorneys proposed for removal. The first eight names on Sampson’s November 7 list were identical to the names on his September 13 and October 17 lists:

Paul Charlton (D. Ariz.);
Carol C. Lam (S.D. Cal.);
Greg Miller (N.D. Fla.);
Paula Silsby (D. Me.);
Margaret M. Chiara (W.D. Mich);
Daniel Bogden (D. Nev.);
Thomas Marino (M.D. Pa.); and
John McKay (W.D. Wash.).

One additional name was added that had not appeared on any previous list prepared by Sampson: David Iglesias (D. N.M.).

Iglesias is Added to the List

The removal of David Iglesias as U.S. Attorney in the District of New Mexico was perhaps the most controversial removal of all the U.S. Attorneys. As discussed in more detail in Chapter Six, it appears that Sampson put Iglesias on the removal list sometime after October 17 based largely on complaints about Iglesias’s handling of certain voter fraud and public corruption investigations in New Mexico. Sampson said he knew that New Mexico Republican Senator Pete Domenici had called Attorney General Gonzales on three separate occasions in 2005 and 2006 to register complaints about Iglesias’s performance. Sampson said that in October 2006 he also learned from either Elston or McNulty that Senator Domenici had also called McNulty to complain that Iglesias was “not up to the job.”

According to McNulty, Senator Domenici had criticized Iglesias’s handling of public corruption cases and said that Iglesias was “in over his head.” McNulty told us that Domenici’s assertiveness and tone during the conversation were “striking.” McNulty said that his conversation with Domenici was the type he would have discussed with Gonzales and Sampson, but he said he could not specifically recall doing so.

When we asked if the October 2006 complaint from Senator Domenici to McNulty was the most important factor in putting Iglesias’s name on the list, Sampson said: “I don’t remember putting his name on a list. I did it . . . but I don’t remember doing it and I don’t remember there being a specific reason for doing it . . . I knew these things generally about Mr. Iglesias and I apparently put his name on the list.”

As we discuss in detail in Chapter Six, Iglesias revealed in early March 2007 that Senator Domenici had called him in late October 2006 and asked whether a specific public corruption case involving Democrats would be indicted before the upcoming November election. Iglesias later expressed publicly his belief that his removal was precipitated by Senator Domenici’s disappointment with the negative answer Iglesias gave him. At the same time, Iglesias revealed that New Mexico Representative Heather Wilson had also called him in October to inquire about the status of public corruption cases. We also learned that officials and party activists of the New Mexico Republican Party complained to White House and Department officials about Iglesias beginning in 2004. The complaints centered around Iglesias’s handling of voter fraud allegations and politically sensitive public corruption cases.

The Removal Plan

In his November 7 e-mail, Sampson included a written plan for removing the nine U.S. Attorneys that contained four steps to be carried out over several days:

Step 1 – Battle was to call each of the named U.S. Attorneys and follow a prepared script seeking their resignations based on the Administration’s desire to “give someone else the opportunity to serve” as U.S. Attorney for the remaining 2 years of the Administration.

Step 2 – While Battle was calling the designated U.S. Attorneys, Deputy White House Counsel Kelley (or the appropriate Associate Counsel) would call the senior Republican Senators from the affected states to inform them of the Administration’s decision “to give someone else the opportunity to serve” as U.S. Attorney for what remained of the President’s second term. Sampson stated parenthetically that, if pushed, Kelley would explain that “the determination is based on a thorough review of the U.S. Attorney’s performance.” The senators would also be told that they would be looked to for recommendations for the new U.S. Attorney.

Step 3 – During November and December 2006, the Department, working with the White House Counsel, would evaluate and select candidates for either appointment as Interim U.S. Attorneys pursuant to the Attorney General’s new statutory authority to confer indefinite appointments, or as Acting U.S. Attorneys (for a 210-day period) under a separate statutory provision.³⁹

Step 4 – The Department and White House Counsel would proceed on an expedited basis to identify, evaluate, and recommend candidates for the permanent U.S. Attorney position (Presidentially appointed, Senate-confirmed) in each district.

Step 3 in the plan called for the Department and the White House to identify Interim U.S. Attorney candidates. According to Sampson, however, at the time the plan was activated there were no replacement candidates “in the queue.” We found no evidence that as of November 7, Sampson or other Department officials had identified any candidates to replace the U.S. Attorneys who were to be removed. Nevertheless, the Department and the White House decided to proceed with the plan to remove the listed U.S. Attorneys.

Reaction to the November 7 List and Plan

On the evening of November 7, Elston replied to Sampson’s e-mail, stating:

This looks fine to me – trying to get Paul’s [McNulty] input as well.

The only concern I have is that Paul just visited NDFla and asked that Greg Miller not be on the list. He does seem to be running things well (if somewhat independent of DOJ).

Sampson in turn responded that he would “wait for the DAG’s input (but no later than tomorrow).”

Sometime between November 7 and November 15, Sampson said he took Miller’s name off the list. He said he did so because “the Deputy [Attorney General] asked that it be taken off.”

McNulty told us that at the time he had recently visited Miller’s district and did not perceive any problems with Miller’s performance.

Following the dissemination of the November 7 list, Sampson deleted two other names – Silsby and Marino – from the list, but not because anyone disagreed with the removal recommendation. According to Sampson, Silsby’s and Marino’s names were removed because both were believed to have the political support of their home-state Senators and the judgment was made not to risk a fight with the Senators over the proposed removals. According to Sampson, McNulty said that Marino had been recommended by Senator Arlen Specter from Pennsylvania. Sampson told us that they did not ask for Marino’s resignation because of the risk of a “brush fire” with the Senator. McNulty stated that he had no recollection of any such conversation with Sampson about Marino and doubted that the conversation took place.

With respect to Silsby, Sampson told us that the Maine Senators (Collins and Snowe) supported Silsby and the judgment was made “not to fight the Senators on that.” The other U.S. Attorneys on Sampson’s November 7 list, including Iglesias, remained on the list.

According to McNulty and Elston, discussions with Sampson concerning the remaining names on the November 7 removal list – Charlton, Lam, Chiara, Bogden, McKay, and Iglesias – focused on whether there was a good reason to take them off rather than on the reason they were on the list in the first place. McNulty said that the U.S. Attorney removal process was an initiative of the Office of the Attorney General related to a “personnel matter” that was within the province of the Attorney General, and that he therefore deferred to the Office of the Attorney General in the matter. McNulty also told us that Sampson did not ask for his permission to engage in the removal effort or seek his approval. McNulty said the only role he was asked to play was to review the list for the purpose of removing any name with which he disagreed. McNulty said his reaction to the November 7 plan was a mixture of surprise that it was being implemented and deference to the personnel prerogatives of the Attorney General’s Office. However, he also said he felt that the plan was reasonable in that each U.S. Attorney would be given ample time to make the transition to private life.

Both McNulty and Elston said they were familiar with the issues surrounding Lam, Chiara, Charlton, and McKay, and neither argued in favor of taking any of those four off the list. With respect to Bogden, McNulty said that he knew little about Bogden’s performance but was told by Sampson that he was on the list because he was not an effective or dynamic leader in an important district with “special challenges.”⁴⁰ McNulty told us that he accepted Sampson’s explanation without looking into Bogden’s record because of his “deferential approach” toward the Attorney General’s Office in this matter.

Later, however, after the final removal decisions had been made on November 27, McNulty told Sampson he was “skittish” about Bogden’s removal because, as a career federal prosecutor, Bogden’s transition to the private sector might pose financial hardships on his family. McNulty said that after Sampson told him that Bogden was single, he dropped the issue.

McNulty also did not object to Iglesias’s inclusion on the removal list. As we discuss in more detail in Chapter Six, McNulty said he was unaware of any problems with Iglesias until he received a telephone call on October 4 from Senator Domenici complaining about Iglesias’s handling of public corruption cases and said that he was “in over his head.” McNulty told us that when he saw Iglesias’s name on the list, he associated it with Senator Domenici’s complaint and viewed the decision to remove Iglesias as falling in the “category of personnel,” meaning something that was outside his “bailiwick.”

Elston said he did not object to the removal of either Bogden or Iglesias because he viewed both as “mediocre” U.S. Attorneys. He also said he believed at the time that Iglesias’s name was placed on the list because of Senator Domenici’s call to McNulty in October 2006. He said he was not given any other reason at the time for Iglesias’s name being added at such a late date. He stated that “everybody” deemed the Senator’s call to McNulty as significant.

The Sixth List – November 15, 2006

The Revised Plan

On November 15, Sampson sent an e-mail to Miers and Kelley attaching a revised list of U.S. Attorneys recommended for removal. The list of U.S. Attorneys proposed for removal in the revised list had been pared to six:

Paul Charlton (D. Ariz.);
Carol C. Lam (S.D. Cal.);
Margaret M. Chiara (W.D. Mich.);
Daniel Bogden (D. Nev.);
John McKay (W.D. Wash.); and
David Iglesias (D. N.M.).

The names of Miller, Marino, and Silsby were deleted from the list.

Sampson’s November 15 e-mail also contained an implementation plan that was similar to, but more elaborate than, the draft that accompanied Sampson’s November 7 e-mail to Elston. In particular, the second step, that Kelley would call home state “political leads,” no longer contained the language that, if pushed, Kelley should explain that the determination was based on a “thorough review” of the U.S. Attorney’s performance. Instead, a new Step 3 was added entitled “Prepare to Withstand Political Upheaval,” which addressed the subject of resisting pressure from U.S. Attorneys and their political allies to keep their jobs. According to this new Step 3, the response to any such appeals would be that the Administration had decided to seek the resignations in order to give someone else a chance to serve.

Sampson’s redrafted plan still had EOUSA Director Battle making the calls to the U.S. Attorneys using talking points Sampson provided. The plan also still called for the Department and White House Counsel’s Office to evaluate and select interim candidates and to carry out the selection, nomination, and appointment of U.S. Attorneys pursuant to the regular nomination and Senate confirmation process.

In his e-mail to Miers and Kelley on November 15, Sampson stated that he had consulted with the Deputy Attorney General but had not yet informed others “who would need to be brought into the loop,” including Acting Associate Attorney General Mercer, Battle, and the Chair of the Attorney General’s Advisory Committee, U.S. Attorney for the Western District of Texas Johnny Sutton. Sampson also stated in the e-mail that everyone must be “steeled to withstand any political upheaval that might result” and that if the White House and the Department were to “start caving to complaining U.S. Attorneys or Senators, then we shouldn’t do it – it’ll be more trouble than it is worth.”

Sampson’s plan called for implementation of the removals that same week, although he informed Miers and Kelley that he would wait for the “green light” from them. He also proposed to “circulate” the plan within the Department and asked that Miers and Kelley circulate it to “Karl’s [Rove] shop.” Once that was done, according to Sampson’s e-mail, Kelley would make the “political lead calls” and Battle would call the U.S. Attorneys slated for removal.

Execution of the Plan is Postponed

For logistical reasons, the plan could not be carried out on the schedule Sampson suggested. After receiving Sampson’s November 15 e-mail, Miers responded that she would have to determine if the plan required the President’s attention. She stated that the President had left town the night before and she would not be able to get his approval “for some time.” Sampson responded by asking Miers who would determine if the President needed to be apprised of the removal plan. Sampson told us that he never received an answer to that question, and the documents provided to us by the White House do not mention this issue. As stated previously, Miers and Kelley from the White House Counsel’s Office refused our requests for interviews.

According to Margolis, in approximately mid-November Sampson either showed him a list, or read from a list, of six U.S. Attorneys that Sampson indicated were to be removed. Margolis told us that he was struck more by the names Sampson did not mention than the ones he did. In their discussions of the topic of underperforming U.S. Attorneys, Margolis had consistently named Ryan and Lampton, but neither name was mentioned by Sampson on this occasion. Margolis told us that he asked Sampson why Ryan and Lampton were not on the list and Sampson responded that he would look into it. Margolis told us that he did not think to question Sampson about five of the six U.S. Attorneys who were on Sampson’s list and did not know why they were on the list. He told us he was more focused on the names that were omitted and assumed Sampson had valid reasons for five of the six he named.

The November 27, 2006, Meeting in the Attorney General’s Office

In the meantime, Sampson scheduled a meeting for November 27 to discuss the U.S. Attorney removal plan with Department officials. On the morning of November 27, a meeting was held in the Attorney General’s conference room attended by Gonzales, Sampson, McNulty, Goodling, Principal Associate Deputy Attorney General William Moschella, and Battle. Elston was unavailable and Margolis was not invited.

Of those in attendance, Moschella was the only one who had not previously been involved in some aspect of the removal plan. Moschella had been appointed the Principal Associate Deputy Attorney General in early October 2006 after serving for several years as the Assistant Attorney General for the Department’s Office of Legislative Affairs. He told us that at the time of the meeting he was generally aware of a matter involving removal of some U.S. Attorneys, but had not been involved in the details.

The 3-page document discussed in Sampson’s November 15 e-mail containing the list of six U.S. Attorneys proposed for removal and the steps to be taken to implement the plan was distributed to the attendees at the meeting. By all accounts, there was little discussion about the reasons the named U.S. Attorneys had been designated for removal or whether anyone objected to the plan as a whole or as it applied to any particular U.S. Attorney. For example, Battle told us it was clear to him that the decision to remove the named U.S. Attorneys had already been made, and the discussion at the November 27 meeting focused on implementing the plan.

Gonzales’s Recollection of the November 27 Meeting

In our interview of him, Gonzales told us he did not recall the November 27 meeting at which he approved the plan to request the resignations of six U.S. Attorneys. However, everyone else in attendance at the meeting stated that Gonzales was present, that he received a copy of the 3-page implementation plan, and that he gave his approval to proceed.

While Gonzales told us he had no independent recollection of the November 27 meeting, he described the process and his role in it. In contrast to Sampson’s description of himself as the “aggregator,” Gonzales described himself as a delegator. He said he had given broad instructions to Sampson to evaluate the current ranks of U.S. Attorneys to determine, in concert with senior Department officials and the White House, where improvements could be made. Gonzales told us that it was not in his “nature to micromanage.” He said he surrounded himself with “good people” to whom he delegated responsibility with the “expectation that they’re going to do their jobs.”

According to Gonzales, while Sampson had provided him “periodic” and “very brief updates” about the U.S. Attorney removal plan over time, they had no discussion of “substance” in terms of the reasons underlying the removals, and Gonzales said he did not know who was “going on and off the list” until November 27 at the earliest. Gonzales also stated that while it was his decision to approve the removals, he made it based on the recommendation of Sampson and the consensus of Department leaders. However, he said that he never asked Sampson or anyone else how they arrived at their recommendations or why each U.S. Attorney warranted removal. Instead, he said he “assumed” that Sampson engaged in an evaluation process, that the recommendations were based on performance issues, and that they reflected the consensus of senior management in the Department.

McNulty Asks to Add Ryan to the List

According to McNulty, the November 27 meeting was “much shorter than an hour,” and during the session the group discussed the logistics of the removal plan. In her congressional testimony, Goodling said that at the meeting the group discussed whether the U.S. Attorneys should be told in person that they were being removed, but the concern was that the U.S. Attorneys would then want to “litigate the reasons” for their removal. Goodling said that someone pointed out that because the U.S. Attorneys served at the pleasure of the President it was not necessary to tell them the reasons why they were being removed.

According to Sampson, although the original plan called for Battle to call the U.S. Attorneys who were being removed, the group also discussed whether McNulty should notify the U.S. Attorneys in person while they were in Washington, D.C., for a Project Safe Childhood conference. Sampson told us that McNulty said he did not want to make the calls because it would have made him uncomfortable to do so. McNulty told us that it would have been unpleasant to tell the U.S. Attorneys they were being removed, but he said he did not recall “being asked to [notify the U.S. Attorneys], or that being part of any plan.” McNulty said that having Battle make the calls was consistent with the notion of keeping the removals in a “lower key.”

Sampson said the group ultimately decided that Battle would make the calls, and they would execute the plan after December 6, when the U.S. Attorneys would be back in their districts after attending the conference.

Sampson said that shortly after the meeting adjourned, McNulty told him that Ryan should be included on the list based on the results of the recently concluded Special EARS review. Sampson said he did not recall doing so, but said he would have spoken to Gonzales soon after the meeting and received his approval to add Ryan’s name to the list, bringing the total number of U.S. Attorneys designated for removal to seven.

White House Approval of the Removal Plan

In the week following the November 27 meeting, Sampson awaited word from the White House Counsel’s Office on whether the Department was authorized to proceed with the removal plan. Sampson told us that around this time he gave Deputy White House Counsel Kelley a “thumbnail” sketch of the reasons each U.S. Attorney was placed on the list. Sampson stated that Kelley raised no objection.

According to Sampson, the White House “was deferential to the Department of Justice’s view on who should be on this list” throughout the process. Sampson claimed that aside from Miers’s question about U.S. Attorney Yang and her request to find a spot for Griffin, no one at the White House had asked that a name be placed on or taken off the list at any time.

The Seventh and Final List – December 4, 2006

The White House Approves the Plan

On Monday, December 4, 2006, Kelley sent an e-mail to Sampson (with a copy to Miers) stating: “We’re a go for the US Atty plan. WH leg, political, and communications have signed off and acknowledged that we have to be committed to following through once the pressure comes.”

Sampson responded: “Great. We would like to execute this on Thursday, December 7 (all the U.S. Attorneys are in town for our Project Safe Childhood conference until Wednesday; we want to wait until they are back home and dispersed, to reduce chatter).” Sampson also reiterated who had responsibility for making the political calls: the Attorney General was to call Senator Kyl of Arizona regarding Charlton; either Miers or Kelley was to call Senator Ensign of Nevada regarding Bogden and Senator Domenici of New Mexico regarding Iglesias; and the White House Office of Political Affairs was to call the political “leads” for California (regarding Lam and Ryan), Michigan (regarding Chiara), and Washington (regarding McKay), all of which had no Republican Senator.

Later during the evening of December 4, Sampson e-mailed to Kelley and Miers a revised removal plan that included Ryan’s name. Minutes later, Sampson e-mailed the revised plan to McNulty, Battle, Goodling, Moschella, and Elston, together with the e-mail string containing Kelley’s authorization to proceed. In his forwarding e-mail to the Department officials, Sampson suggested that AGAC Chair Sutton and Acting Associate Attorney General Mercer be notified. The e-mail also suggested noon on Thursday, December 7 for Battle to begin making his calls to the seven U.S. Attorneys who would be removed. That evening, Sampson also sent an e-mail to Scott Jennings and Jane Cherry, who worked in the White House Office of Political Affairs, with a list of current U.S. Attorney vacancies and a list of “vacancies expected shortly” – a list that included the seven U.S. Attorneys who would be called on December 7. Sampson wrote that the purpose of the e-mail was to notify the White House that “we need to get some names generated pronto.”

The next day, December 5, Sampson e-mailed the revised plan to Mercer so that he would be prepared in the event he received calls from “the field.” From the context of the e-mail, it is clear that Mercer had not been involved in the process until then. Sampson informed Mercer that the “Administration has decided to ask some underperforming USAs to move on (you’ll remember I beat back a much broader – like across the board – plan that [the White House Counsel’s Office] was pushing after 2004.).”

The Implementation of the Removal Plan

On the morning of December 7, 2006, the plan was executed. Gonzales and Sampson called Senator Kyl regarding Charlton’s removal. The Senators and political leads for the other U.S. Attorneys were also notified in accordance with the plan’s instructions.

During the afternoon of December 7, Battle called each of the seven U.S. Attorneys on the removal list and essentially followed the script from Sampson’s plan in asking each to resign.⁴¹ Battle said he told each U.S. Attorney that the Administration thanked them for their service but was looking to move in another direction and give somebody else a chance to serve and was therefore asking them to submit their resignation by the end of January 2007. According to Battle, some of the U.S. Attorneys asked why, and some asked for more time. Battle said that none of the U.S. Attorneys got upset with him, but he had the sense for some that, given their strong personalities, there would be some “push back.” However, Battle said that all agreed to comply with the request to resign.

As we discuss below, as well as in the chapters assessing the reasons proffered for the removal of each U.S. Attorney, the U.S. Attorneys said they were surprised and stunned at the calls asking them to resign. They told us, and e-mails and other documents drafted in the aftermath of Battle’s December 7 calls confirm, that they were confused about why they were asked to resign and upset that they were given so little notice before the deadline for their resignations.

The Aftermath of the Removals

In the months following the December 7, 2006, calls to the U.S. Attorneys, various concerns arose relating to their removals, including how the process of selecting U.S. Attorneys for removal was conducted, whether the removals of specific U.S. Attorneys were sought for an improper political purpose, and whether the Department intended to bypass Senate confirmation by using the Attorney General’s authority to make indefinite Interim U.S. Attorney appointments of their replacements.

The subsequent revelation that seven U.S. Attorneys had been asked to resign on the same day prompted congressional inquiries into the removals. On January 16, 2007, Senator Dianne Feinstein stated on the Senate floor that seven U.S. Attorneys had been removed without cause. Media reports also disclosed that two of the U.S. Attorneys had recently investigated high-profile public corruption investigations at the time of their removals – Lam had successfully prosecuted California Republican Congressman Duke Cunningham, and Charlton was engaged in an ongoing investigation of Arizona Republican Congressman Rick Renzi. In addition, the media reported allegations that McKay was removed for failing to pursue voter fraud complaints following the closely contested Washington State gubernatorial election in November 2004.

In a press conference on February 28, 2007, Iglesias disclosed that he had received telephone calls in October 2006 from two unidentified members of Congress who pressured him to indict a public corruption case in New Mexico before the November 2006 election. In his congressional appearance on March 6, Iglesias stated that the two members of Congress who allegedly pressured him were New Mexico Senator Pete Domenici and Representative Heather Wilson. Iglesias testified that he believed he was removed as U.S. Attorney because he failed to respond to their desire to rush public corruption prosecutions.

We discuss in the following sections the immediate reaction to the removals, the Department’s response, and the events that followed.

The U.S. Attorneys’ Initial Reactions

After receiving the calls from Battle on December 7, Lam, Bogden, Iglesias, and Chiara contacted McNulty. Lam, Bogden, and Iglesias sought more time before submitting their resignations while Chiara sought McNulty’s assistance in finding her a new position. McNulty did not immediately respond to these requests.

Lam also contacted Margolis to inquire whether she had been asked to resign because she was the subject of any misconduct investigation. Margolis told us that he first became aware that the removal plan had actually been implemented when he received the call from Lam. He said that when the plan had not been carried out by mid-November 2006, he assumed it was not going to go forward. Margolis told Lam that her removal was not because of any misconduct issue.

According to e-mail records, Ryan complained to his contacts at the White House about his treatment. Charlton and Bogden contacted Mercer and asked why they were being removed. However, consistent with Sampson’s plan, the U.S. Attorneys were given no explanation for the firings other than that the Administration wanted to give someone else a chance to serve. Most of the U.S. Attorneys also sought more time before they had to resign.

On December 14, McKay sent an e-mail to all U.S. Attorneys announcing that he planned to resign the following month. On December 15, Cummins sent an e-mail to all U.S. Attorneys announcing that he would resign the following week.

Concern that the Department Intended to Bypass Senate Confirmation for Replacement U.S. Attorneys

On December 15, 2006, Attorney General Gonzales and Arkansas Senator Mark Pryor discussed Gonzales’s intention to appoint Tim Griffin as the Interim U.S. Attorney to replace Cummins. Gonzales informed Senator Pryor that he intended to appoint Griffin to be Interim U.S. Attorney, and Gonzales expressed his hope that Senator Pryor would be able to support Griffin for the nomination after he had had a chance to serve. According to Gonzales, Senator Pryor said he would not commit to supporting Griffin’s nomination at that time.

In an e-mail dated December 19, 2006, Sampson drafted talking points to respond to inquiries about the circumstances of Griffin’s appointment. The talking points included the statements that when a U.S. Attorney vacancy arises, someone needs to be appointed, even if on an interim basis to fill the vacancy, that Griffin was appointed Interim U.S. Attorney because of the timing of Cummins’s resignation, and that the Department “hoped that there would be a U.S. Attorney who had been nominated and confirmed in every district.” Sampson sent a copy of this e-mail to Associate White House Counsel Chris Oprison.

In response, Oprison told Sampson he had discussed with Miers the Department’s response to press inquiries about the circumstances of Griffin’s appointment. Oprison expressed concern to Sampson about problems with Griffin’s nomination, noting that it seemed that the Arkansas Senators would neither commit to supporting Griffin nor say they would not support him. Oprison also stated that since the Attorney General’s appointment of Griffin was of unlimited duration pursuant to the Patriot Act amendment, the talking points used to respond to press inquires about Griffin should “avoid referring to [Griffin] as ‘interim.’”

Sampson immediately responded in an e-mail, “I think we should gum this to death . . . .” Sampson suggested in his e-mail that because Griffin’s interim appointment would be technically of unlimited duration, if either of the Democratic Senators from Arkansas would not agree to support Griffin’s nomination once he was nominated and after he had served as Interim for a period of time, the Department could “run out the clock” to the end of the Bush Administration while appearing to act in good faith by asking the Senators for recommendations, interviewing other candidates, and pledging to “desire” a Senate confirmed U.S. Attorney. Sampson also stated in the e-mail, “our guy is in there so the status quo is good for us.” Sampson added, “I’m not 100 percent sure that Tim was the guy on which to test drive this authority, but know that getting him appointed was important to Harriet, Karl, etc.”

When confronted with this e-mail during his congressional testimony, Sampson characterized his discussion of using the interim appointment authority to bypass Senate confirmation as a “bad idea at the staff level.” He told us that the idea was confined to Griffin. Sampson also said Attorney General Gonzales never seriously considered it.⁴² Gonzales told us he could not recall whether he discussed this issue with Sampson at that time, but said he thought it was a “dumb idea.”

The Department Begins to Publicly Respond to Concerns About the Removals

Shortly after McKay and Cummins announced their resignations, most of the U.S. Attorneys began discussing their removals among themselves. By December 17, several of the U.S. Attorneys speculated among themselves that the Department had asked 10 to 12 U.S. Attorneys to resign.

In mid-to-late December 2006, the news media began to report on the removals. For example, on December 19, in an online story entitled U.S. Attorney Ousted, a New Mexico television station reported that Iglesias had been asked to resign. During the same period, other news outlets began asking the Department for comment on the removals of U.S. Attorneys.

Articles About Cummins’s Removal

In late December 2006, various articles began appearing in the Arkansas media regarding Cummins’s resignation, Griffin’s appointment as Interim U.S. Attorney, and the concerns of Arkansas Senators Pryor and Blanche Lincoln that the Department intended to circumvent the confirmation process by appointing Griffin as Interim U.S. Attorney.

On December 27, 2006, the Arkansas Democrat Gazette published an interview with Griffin discussing the Senators’ concerns. The article included a statement from Department of Justice spokesman Brian Roehrkasse that Griffin’s appointment was meant to be temporary until Griffin could go through the formal nomination and confirmation process, and that the Department had asked Senator Pryor to meet with Griffin. According to the article, Roehrkasse stated, “often, the first assistant U.S. Attorney in the affected district will serve as the acting U.S. Attorney until the formal nomination process begins for a replacement,” but added “the first assistant is on maternity leave.” Roehrkasse also stated, “Tim was chosen because of his significant experience working as a federal prosecutor in both Arkansas and in the Justice Department in Washington, D.C.”

Cummins told us that when he read the article he began to have doubts about the Department’s credibility. Cummins said that Griffin had been working in the U.S. Attorney’s Office since September 2006, and Cummins had known since June of that year that Griffin was going to take his place. Cummins also said that the maternity leave status of his First Assistant was not a reason for Griffin’s appointment as the Interim U.S. Attorney because the Department and the White House had always intended that Griffin would replace Cummins as either Interim or permanent U.S. Attorney, or both.

We found no indication that anyone ever considered at the time appointing the office’s First Assistant as Interim U.S. Attorney. The First Assistant (now the U.S. Attorney) told us that she had no discussions with anyone at the Department about the possibility of serving as Interim U.S. Attorney when Cummins resigned. In addition, our review of e-mails between Sampson and Goodling demonstrates that as early as August 2006 they discussed using the Attorney General’s appointment authority to appoint Griffin Interim U.S. Attorney because it was unclear whether Senator Pryor would support Griffin’s nomination.

We sought to determine where Roehrkasse obtained the information that implied that the First Assistant’s maternity leave was a reason for Griffin’s appointment as the Interim U.S. Attorney. When we interviewed Roehrkasse, he told us that he thought he had received the information from Goodling and Sampson. Roehrkasse said he recalled receiving a question from a reporter concerning the circumstances of Griffin’s appointment, and either Sampson, Goodling, or both gave Roehrkasse three talking points: (1) Griffin was chosen because he had significant experience; (2) the President might nominate him to be the permanent U.S. Attorney; and (3) the First Assistant was not available because she was either going on maternity leave or was on maternity leave.

Sampson told us that the information about the First Assistant’s maternity leave did not come from him but likely came from Goodling. Sampson said he recalled being present when Goodling briefed the Attorney General before his December 15 telephone conversation with Pryor, and that Goodling mentioned to Gonzales, in response to one of Gonzales’s questions during the briefing about what was happening in the district, that the First Assistant was on maternity leave. Sampson acknowledged that Griffin was slated to be appointed Interim U.S. Attorney all along. However, he told us he did not consider correcting any misimpression that Goodling had created because he did not believe the circumstances called for him to do so.⁴³

We asked Roehrkasse whether he thought the statements he made concerning the First Assistant being unable to serve because she was on maternity leave were misleading. Roehrkasse said that he saw no problem with the statements. He said the quote about the First Assistant being on maternity leave was a fact and that it was not as if he had said “[the first assistant] was passed over [for consideration as Interim U.S. Attorney] because she was on maternity leave.” Roehrkasse also said that when he spoke with the reporter he believed, based on what Goodling and Sampson had told him, that one of the reasons the First Assistant was not chosen to be Interim U.S. Attorney was that she was on maternity leave.

Roehrkasse said he did not learn that the article may have contained inaccuracies until after the controversy over the U.S. Attorney removals erupted. However, we found no evidence that the Department attempted to correct Roehrkasse’s misleading information at the time.

Senators Express Concern About the Removals

By early January 2007, other news articles reported that several U.S. Attorneys across the country had been asked to resign. On January 9, 2007, Senators Patrick Leahy and Dianne Feinstein wrote Attorney General Gonzales a letter expressing concern that the Department had removed the U.S. Attorneys without cause and intended to “appoint interim replacements and potentially avoid the Senate confirmation process.” The two Senators requested information “regarding all instances in which you have exercised the authority to appoint an interim United States Attorney.” The Senators also requested information “on whether any efforts have been made to ask or encourage the former or current U.S. Attorneys to resign their position.”

On January 11, Senator Pryor sent Attorney General Gonzales a letter expressing concern that the Administration had forced Cummins to resign in order to appoint Griffin. Pryor stated that he was “astonished” that the Department’s liaison had told his staff and the media that the First Assistant was not chosen to be the Interim U.S. Attorney because she was on maternity leave, and he expressed concern that Griffin’s appointment was intended to bypass the Senate confirmation process.⁴⁴ The same day, Senators Feinstein, Leahy, and Pryor introduced legislation designed to restore the authority of federal district courts to appoint Interim U.S. Attorneys when 120 days had passed without a Senate-confirmed U.S. Attorney.

As noted previously, we found no evidence that the Department had candidates waiting to be nominated to replace the U.S. Attorneys at the time of their removals. McNulty told us that in late December to mid-January, when the individual U.S. Attorneys had begun announcing their resignations, Sampson consulted with him about possible replacements. McNulty said Sampson assured him that the replacement process was being conducted “by the book,” and that the Department was initially attempting to select the First Assistants to act as Interim U.S. Attorneys.

McNulty said Sampson also told him that the Department was working with the Senators or state commissions to obtain the names of individuals who would go through the nomination process. Our review of e-mail records and other documents confirmed that the Department was in fact working with state congressional delegations and others to obtain the names of individuals to undergo the nomination and confirmation process for U.S. Attorneys.

Sampson’s January 2007 Briefing of Senate Judiciary Committee Staff

In response to the January 9, 2007, letter from Senators Feinstein and Leahy alleging that the Department had asked several U.S. Attorneys to resign “without cause” and that the plan was to appoint “interim replacements” and avoid the Senate confirmation process, Sampson called Senator Feinstein’s chief counsel, Jennifer Duck, to set up a meeting with her and Senator Leahy’s chief counsel, Bruce Cohen. The purpose of the meeting, according to Sampson, was to “mollify” the Senators that the Department’s actions were not sinister.

We found that Sampson’s representations at the meeting with Senate staff exacerbated rather than mollified the skepticism concerning the U.S. Attorney removals. On January 12, 2007, Sampson and Richard Hertling, who had recently assumed the position of Acting Assistant Attorney General for the Office of Legislative Affairs, met with Duck and Cohen in Cohen’s office. According to Hertling, who said he knew little about the controversy at the time, Sampson attempted to impress upon Duck and Cohen that the removals were the result of a process the Department had been engaged in for some time of identifying the U.S. Attorneys who were the “weakest performers,” and that the process included a review of EARS evaluations. Hertling told us that one of the things that stuck in his mind about the meeting was Sampson’s “specific reference” to EARS evaluations as a basis for the selection of these particular U.S. Attorneys for termination. Hertling said he left the meeting with the “distinct impression” that EARS evaluations were central to the process Sampson had described.

We also interviewed Duck and Cohen. According to Duck, Sampson said all the U.S. Attorneys who were removed were “underperformers.” When Duck asked how they were evaluated, Sampson first said the decisions were based on EARS evaluations, but later said that while some were based on EARS evaluations, some were based on other factors such as caseload, responsiveness to policy initiatives, resource allocation, and the like.

Cohen similarly stated that Sampson stressed that the Department decided to remove certain “underperforming” U.S. Attorneys and that the removals were based on periodic performance reviews – EARS evaluations. According to Cohen, Sampson initially spoke of the value of EARS reports in determining which U.S. Attorneys fell into the “underperforming” category, but he backtracked when Duck pressed him for copies of the EARS reports for each removed U.S. Attorney.

Cohen and Duck also told us that Sampson emphasized that all the affected U.S. Attorneys were removed on the basis of performance, including Cummins, whose replacement by Griffin had triggered the Senate’s interest in the first place. According to Duck, Sampson said that Cummins was considered an “underperforming” U.S. Attorney, and the Attorney General had appointed Griffin Interim U.S. Attorney upon Cummins’s resignation because the First Assistant was on maternity leave and not available to accept the appointment.

Sampson told us that he mentioned EARS evaluations only in the context of explaining Ryan’s removal, which he considered of particular interest to Senator Feinstein. Sampson said he doubted that he would have suggested that the other removals were based on EARS evaluations because “that wouldn’t have been accurate.” In addition, Sampson said that he could not recall whether he told Duck and Cohen that Cummins was removed based on performance issues like the other seven. Sampson acknowledged, however, that he viewed Cummins’s removal as performance-based at the time. When we asked Sampson if he distinguished Cummins from the other removed U.S. Attorneys, as McNulty did later, on the ground that someone in the Administration (Miers) had asked that Griffin be given the opportunity to serve, Sampson replied: “I don’t remember what I said.”⁴⁵

Sampson’s meeting with Duck and Cohen did not satisfy the Senate Judiciary Committee members that the U.S. Attorneys were removed for legitimate reasons. On January 16, Senator Feinstein criticized the removals in a statement on the Senate floor, asserting that several U.S. Attorneys were forced to resign so that the Attorney General could appoint interim replacements pursuant to the Patriot Act amendment and thereby avoid Senate confirmation. Feinstein noted that she had learned that seven U.S. Attorneys had been forced to resign without cause, including two from California, “as well as U.S. Attorneys from New Mexico, Nevada, Arkansas, Texas, Washington, and Arizona.”⁴⁶

On January 25, Senator Charles Schumer issued a notice scheduling a hearing for early February 2007 on whether the Department was “politicizing” the “hiring and firing” of U.S. Attorneys. The previous day, Hertling had contacted Preet Bharara, Senator Schumer’s Chief Counsel on the Senate Judiciary Committee, and arranged a meeting on January 26 for Sampson and Hertling to brief Bharara on the U.S. Attorney issue.

According to Bharara, Sampson’s theme at the briefing on January 26 was that Senator Feinstein’s denunciation of the removals on the Senate floor on January 16 was misguided. Bharara told us that Sampson maintained that none of the U.S. Attorneys were removed in order to stymie any investigation. Bharara said that Sampson stressed that, to the contrary, there were performance reasons for each removal, and while Sampson declined to go into specifics at this meeting, he assured Bharara that if he knew all the details he would agree with the Department’s decisions. Although Bharara told us he did not have a specific recollection of what Sampson said about the role EARS evaluations played in the removal decisions, Bharara recalled that he was eager to obtain the EARS reports after hearing what Sampson said. Bharara also said he was surprised when he later heard McNulty say at a closed briefing with members of the Senate Judiciary Committee and staff on February 14 that EARS evaluations did not reflect problems with most of the U.S. Attorneys who were forced to resign.

Elston’s Telephone Calls to Charlton and McKay on January 17, 2007

Attorney General Gonzales was scheduled to testify at an oversight hearing before the Senate Judiciary Committee on January 18, 2007. During January 2007, senior Department staff participated in several sessions to prepare the Attorney General for his upcoming congressional testimony.

Elston told us that during one session held on January 17, 2007, the day before Gonzales’s congressional testimony, the group discussed how Gonzales would handle questions about the U.S. Attorney removals. As noted above, by mid-January the media was raising questions about the resignations of Cummins, McKay, Iglesias, Lam, Bogden, Ryan, and Charlton.

Elston said that after the January 17 preparation session, McNulty expressed concern for the U.S. Attorneys about whom members of Congress and the media were speculating, but who had not publicly confirmed they had been asked to resign. Elston told us that, at the time, the Department’s goal was to allow the U.S. Attorneys to leave on their own terms and announce their resignations in accordance with their own sense of appropriate timing.

According to Elston, McNulty was concerned that the U.S. Attorneys might be worried about what the Attorney General was going to say about them in his testimony at the January 18 hearing. Elston said the concern was that they might publicly announce that the Department had sought their resignations, in anticipation that the Attorney General would say they had been removed. Elston said that on January 17 McNulty asked him to call McKay, Charlton, and Ryan to let them know that the Attorney General was not going to testify about who had been removed or about the basis for the removals.

We were unable to determine why Elston was chosen to call only McKay, Charlton, and Ryan. Elston said he believed that someone else was assigned to call the others. However, we did not find any indication that anyone else in the Department was asked to place calls to the other U.S. Attorneys prior to the Attorney General’s testimony.

On January 17, Elston called McKay at 5:30 p.m., and an e-mail reflects that Elston called Charlton shortly afterwards. Elston said he did not speak to Ryan, but instead spoke to Ryan’s First Assistant. Elston said he gave McKay, Charlton, and Ryan’s First Assistant the same message: that when the Attorney General testified, he would not name the U.S. Attorneys or discuss the reasons for their removal.⁴⁷

Telephone Call to McKay

According to McKay, Elston began the telephone conversation by saying that people in the Department were surprised they had not seen any “‘incendiary comments’” from McKay in the press. McKay said that Elston then stated that the Attorney General would make only general statements in his Senate testimony about the resignations, would not state that the U.S. Attorneys had been fired, and would not disclose the reasons for their removal.

McKay told us that because Elston began the conversation by saying that the Department had noticed McKay had not discussed his removal in the press, and then said that the Attorney General also would not discuss why McKay had resigned, McKay believed that Elston was offering him a quid pro quo: “You keep quiet, we won’t say anything.”

According to McKay, Elston then asked if he had any response. McKay said he replied that he would stay quiet not because the Attorney General would not disclose why he had been fired, but rather because he believed it was his duty to do so. McKay said he acknowledged to Elston that he served at the pleasure of the President and said he would not say anything that reflected poorly on the President or on the Department.

McKay’s contemporaneous notes of this conversation indicate that he also told Elston that his reputation in Seattle was secure and would not be tarnished by anything the Department said about him. McKay’s notes further state: “I wasn’t given an explanation and I never asked why.” McKay’s notes also state that Elston was clearly trying to do “damage control” in the wake of media reports about the removals.

When McKay later testified before the Senate Judiciary Committee on March 6, he did not discuss his conversation with Elston. However, in subsequent written testimony to the House Judiciary Committee and during our interview, McKay said he felt that Elston was attempting to threaten him into remaining silent about his removal.⁴⁸

Telephone Call to Charlton

Charlton told us that he viewed Elston’s phone call to him as a veiled threat. Charlton said that Elston told him that the Department’s senior management had noticed that he had not been commenting in the media, and he wanted Charlton to know that the Attorney General was not going to comment on why Charlton had been asked to resign.

Charlton said he had not been told the reasons for his resignation but thought it was because of his disagreement with Department leaders concerning a death penalty case. He told us that he thought at the time of Elston’s call that he did not care if the Attorney General disclosed to Congress that he resigned over a disagreement about the death penalty. Charlton said he interpreted Elston’s call as a warning that the Attorney General would make comments about Charlton unless he remained quiet.

Charlton said he spoke to McKay shortly after his conversation with Elston, and after the two compared notes Charlton concluded that at the very least Elston was trying to intimidate them.

Elston’s Description of the Telephone Calls

When we interviewed Elston, he denied calling McKay and Charlton in an attempt to threaten them to remain silent, and denied offering them a quid pro quo in exchange for their silence. Elston noted that he made the calls at the close of business on the day before the Attorney General’s testimony, and that he did not see the Attorney General prior to his testimony. Elston also said that no one asked him to report back as to whether Charlton and McKay were going to continue to remain silent about their removals and he did not do so.

During our interview, we showed Elston the notes McKay took shortly after their telephone conversation. Elston said he did not recall McKay making several of the statements contained in his notes, and Elston said he believed that some statements in the notes were “a fabrication.” Elston stated that if the conversation had gone the way it was described in McKay’s notes, it would have caused him such alarm that he would have reported to McNulty that there was a problem with McKay.

We found no evidence that Elston discussed with anyone his conversations with McKay and Charlton until March 2007, when Cummins testified before Congress about a similar conversation, discussed below, that Cummins had with Elston on February 20, 2007.

Attorney General Gonzales’s January 18, 2007, Testimony Before the Senate Judiciary Committee

On January 18, 2007, Attorney General Gonzales testified before the Senate Judiciary Committee. In response to questioning from Senator Feinstein concerning why several U.S. Attorneys were asked to resign, Gonzales stated:

[S]ome people should view [the resignations] as a sign of good management. What we do is we make an evaluation about the performance of individuals. And I have a responsibility to the people in your district that we have the best possible people in these positions.

And that’s the reason why changes sometimes have to be made, although there are a number of reasons why changes get made and why people leave on their own.

Gonzales also testified, “I am fully committed, as the Administration’s fully committed, to ensure that, with respect to every United States Attorney position in this country, we will have a Presidentially appointed, Senate-confirmed United States Attorney.” At the hearing, Gonzales declined to disclose publicly the number of U.S. Attorneys who had been removed or the reasons for their removal, stating that he did not want to get into a public discussion of personnel decisions. Gonzales asserted that he would never make a change in a U.S. Attorney position for political reasons, or if it would jeopardize an ongoing serious investigation.

One week later, the Senate Judiciary Committee scheduled a hearing for February 6, 2007, on “Preserving Prosecutorial Independence: Is the Department of Justice Politicizing the Hiring and Firing of U.S. Attorneys?” Sampson and Hertling recommended that McNulty testify at the hearing because the Department needed someone senior to validate the removal decisions and McNulty was perceived to have a good relationship with Senator Schumer, who was scheduled to chair the hearing.

McNulty told us that even though he was not responsible for initiating the removals of the U.S. Attorneys, he agreed to testify as a favor to Sampson because he recognized the need for a top-level Department official to respond to the Senate’s concerns. McNulty told us that the Department believed that in addition to the U.S. Attorney removals, the Senate was concerned about the Attorney General’s authority to make indefinite Interim U.S. Attorney appointments.

Cummins Seeks Advice from Elston

In early February, Cummins notified Elston that members of Senator Pryor’s and Senator Schumer’s staffs had asked Cummins to testify at the upcoming Senate Judiciary Committee hearing. Elston informed Sampson that Cummins had declined the invitation but told Elston that if the Department wanted him to testify he would explain the circumstances of his resignation and would also strongly support the Attorney General’s authority to appoint Interim U.S. Attorneys for an indefinite period.

Sampson responded that he did not think Cummins should testify because he would have to provide truthful answers to questions such as whether he had resigned voluntarily, whether he was asked to resign because he was underperforming, and whether Griffin had discussed becoming U.S. Attorney and avoiding Senate confirmation. According to Elston and Cummins, Elston told Cummins that the Department would take no position on whether he should testify.

McNulty’s February 6, 2007, Testimony Before the Senate Judiciary Committee

McNulty’s Use of the Term “Performance-Related” to Describe the Removals

By the time McNulty testified on February 6, the media had reported that Lam, Ryan, McKay, Iglesias, Bogden, and Charlton had been told to resign on the same day.

At the hearing, McNulty stated that with the exception of Cummins, the resignations of the U.S. Attorneys were requested for “performance-related” reasons. With respect to Cummins, McNulty testified that he was removed in order to give Griffin a chance to serve as U.S. Attorney.

McNulty used the term “performance-related” at least five times in his testimony to describe why the U.S. Attorneys (other than Cummins) were removed. In response to a question about whether the White House was involved in the removals, McNulty testified that he was “sure [that the White House] was consulted before [the Department made] the phone calls” to the U.S. Attorneys because the U.S. Attorneys were presidential appointees. During his testimony, McNulty declined to publicly disclose how many U.S. Attorneys were asked to resign or their identities. Instead, he agreed to privately brief members of the Senate Judiciary Committee about the removals, and this closed briefing was scheduled for February 14, 2007.⁴⁹

According to McNulty, he had two preparation sessions before his February 6 testimony with a group of senior Department employees. According to calendar entries, the group consisted of Sampson, Goodling, Moschella, Elston, Battle, Office of Public Affairs Director Tasia Scolinos, Roehrkasse, EOUSA Principal Deputy Director John Nowacki, Hertling, and two other employees from the Office of Legislative Affairs. Moschella told us that he and Goodling were present only for a short time at one of the sessions because they were involved with the rollout of the Department’s budget on one of those days.

McNulty said that the group decided that he would generally say no more than what the Attorney General had said in his January 18 testimony, which was that the Department had considered the U.S. Attorneys’ performance before deciding to remove them. McNulty said the group unanimously agreed that McNulty would say that the removals were “performance-related,” but would not get into specifics about the U.S. Attorneys’ performance. McNulty said that the group did not discuss the specific reasons for each U.S. Attorney’s removal during the preparation sessions.

When we asked McNulty whether the Department officials at the preparation sessions discussed how McNulty’s using the word “performance” to describe the U.S. Attorneys might be received, he said they did not consider it. McNulty told us that the term “performance-related” did not sound as negative during the preparation sessions as the U.S. Attorneys who were removed later perceived it.⁵⁰ McNulty said, “[i]n the end I chose that word because I ran it by everybody, and folks felt like that was the best way to deal with it and so I went forward using it.”

McNulty said that the group also discussed what McNulty would say about Cummins’s removal, because of the controversy arising out of the Attorney General’s appointment of Griffin to be Interim U.S. Attorney. McNulty said he told the group in his preparation sessions that he would say that during the summer of 2006 Cummins had been asked to move on to make a place for Griffin.⁵¹

McNulty told us that he did not connect Cummins with the other removals, and that when Goodling told him they were making an opportunity for Griffin in the summer of 2006, the stated justification was that Cummins had indicated he was going to move on, not that the White House wanted to replace him with Griffin. McNulty said he also made the distinction between Cummins’s removal and the other U.S. Attorney removals during his preparation sessions and that no one, including Sampson, disagreed with him or objected to his drawing that distinction.

Handwritten notes McNulty made for his February 6 testimony reflect that the issue of White House involvement was discussed during his preparation sessions. His notes state: “WH personnel and counsel consulted – POTUS appointments.” However, we found no indication that there was any discussion of the exact timing and level of the White House’s involvement during these preparation sessions.

Attorney General Gonzales’s Reaction to McNulty’s Testimony

Several witnesses told us that Attorney General Gonzales, who was traveling in Buenos Aires at the time of McNulty’s February 6 hearing, was extremely unhappy after learning through press accounts about McNulty’s testimony. According to Roehrkasse, who was traveling with the Attorney General, Gonzales was unhappy because he thought McNulty’s testimony that Cummins was not removed for performance-related reasons was inaccurate. Roehrkasse also said Gonzales expressed dismay that McNulty testified that the other U.S. Attorneys were removed for performance-related reasons. Sampson told us that he spoke to the Attorney General about McNulty’s testimony and that Gonzales was upset because of the way McNulty had characterized Cummins’s departure.

When we asked Gonzales about McNulty’s testimony, he told us that he was upset because he was confused, believing up to that point that Cummins was removed because of poor performance. Gonzales said that he later learned, likely from Sampson, that Cummins was removed to put Griffin into the U.S. Attorney position.⁵² We asked Gonzales how he could reconcile that with the fact that he had since become aware that Sampson said he put Cummins on the list in March 2005 and January 2006 because he thought Cummins was an underperformer. Gonzales told us that he wondered about that as well, but said he did not have an answer for us.

Gonzales told us that he was also unhappy because he felt that by testifying that the U.S. Attorneys were removed for performance-related reasons, McNulty had opened the door to a public examination of the reasons for the removals.

Tasia Scolinos, the Director of the Department’s Office of Public Affairs, was present for both Gonzales’s and McNulty’s preparation sessions prior to their Congressional testimony. She told us that Gonzales had been consistently adamant about not wanting to say publicly that the U.S. Attorneys were removed because of their performance, even though he implied as much during his January testimony. Scolinos said that she understood that Gonzales was upset about McNulty’s testimony both because of Gonzales’s concern for the reputations of the former U.S. Attorneys, and because Gonzales thought McNulty’s testimony about Cummins was inaccurate.

According to McNulty, however, he and Gonzales never discussed the matter. Gonzales said he did not recall discussing the issue with McNulty.

U.S. Attorneys’ Reaction to McNulty’s Testimony

Several of the U.S. Attorneys who had been removed were angered by McNulty’s February 6 testimony. They were upset in part because McNulty’s testimony was the first time they heard they had been removed for reasons related to their performance. For example, Bogden stated in an e-mail at the time, “It would have been one thing if performance had been the reason and they told us as much, however, I was told differently by Battle, Mercer, and McNulty.”⁵³ In an e-mail on February 7, Iglesias forwarded to Charlton and McKay a news article describing McNulty’s testimony with a notation “Gloves will be coming off.”

Shortly after McNulty’s February 6 testimony, the House Judiciary Subcommittee contacted several of the U.S. Attorneys to invite them to testify at an upcoming hearing into the U.S. Attorney removals, which eventually was scheduled for March 6.

The February 8 Letter from Several Senators

On February 8, 2007, Senators Harry Reid, Charles Schumer, Richard Durbin, and Patty Murray sent Attorney General Gonzales a letter noting that McNulty’s testimony intensified their concerns about politicization of the hiring and firing of U.S. Attorneys. The Senators characterized as “stunning” McNulty’s testimony that Cummins was removed for no other reason than to make way for Griffin. The Senators requested information regarding the timing of the decision to appoint Griffin to replace Cummins, the identity of individuals who lobbied on behalf of Griffin’s appointment, the disparity between Cummins being asked to resign in June 2006 when the other U.S. Attorneys were asked to resign in December 2006, and the role Karl Rove played in the decision to appoint Griffin. Sampson immediately began drafting a response that was sent on February 23, which we discuss in Section K below.

McNulty’s February 14 Closed Briefing for the Senate Judiciary Committee

Preparation for the Briefing

During his February 6 testimony, McNulty had agreed to privately brief the Senate Judiciary Committee about the basis for each U.S. Attorney’s removal. The briefing was scheduled for February 14. McNulty told us that he did not need much help preparing for the closed briefing because he believed he was familiar with the reasons for each dismissal. McNulty said his own thoughts about the fired U.S. Attorneys seemed to be a significant piece of what would justify the removals.

However, McNulty met with senior Department leaders sometime during the week between February 6 and February 13 to discuss the upcoming briefing. It is unclear who was present or exactly when they met, but e-mails and witness testimony indicate that McNulty discussed the issues in a meeting with Sampson, Elston, Margolis, Goodling, and Moschella prior to his February 14 briefing.

According to McNulty, he did not ask the group what he should say about the White House’s involvement. McNulty said he also did not ask about the timing of the White House’s involvement in the removal of U.S. Attorneys because he thought he knew when the process began, based on when he was first notified about it in the fall of 2006.

Margolis said he recalled that the topic of the White House’s involvement came up during the preparation session. Margolis said McNulty stated that if asked, he would say that the Department came up with a list of U.S. Attorneys to remove and the White House was involved only to sign off on the proposal. He said no one at the session corrected McNulty or disclosed the level of the White House’s involvement in the removals. During our interview, Margolis said that in hindsight he could have pointed out that the White House had proposed firing all the U.S. Attorneys early on in the President’s second term. However, Margolis told us that he did not believe that McNulty’s statement was inaccurate because he knew that the Department had assembled the list. Margolis said he also mistakenly assumed that McNulty knew as much as he did about the White House’s involvement.

Sampson said that during McNulty’s preparation session they did not specifically discuss anything about the White House’s role beyond Cummins’s replacement with Griffin. Sampson said the focus of the preparation session was on other subjects, such as why each of the U.S. Attorneys had been replaced and how to respond to concerns that the Department intended to use the interim appointment authority to evade the Senate confirmation process.

McNulty asked Goodling for information for the briefing and gave her guidance on the type of information he needed, such as what the various issues were for each removed U.S. Attorney, facts about the district and the U.S. Attorney’s term, and information about the EARS evaluations for each district. According to witnesses and documents, Goodling made handwritten notes of what the participants said during the preparation session concerning the basis for each of the removals, and she and Nowacki put that information into a typed chart for McNulty to use during the congressional briefing.⁵⁴

Goodling’s notes indicate that the group discussed what McNulty should say about each removed U.S. Attorney. In a category entitled “Leadership Assessment” on the chart Goodling created, she listed parts of what the group discussed that ostensibly served as justification for each U.S. Attorney’s removal. The notes and the chart, which was drafted on February 12, 2007, appear to be the first time that the Department actually listed the specific reasons alleged to be the basis for each removal.

McNulty’s Briefing for the Senate Judiciary Committee

On February 14, 2007, McNulty briefed members of the Senate Judiciary Committee in a closed session concerning the reasons for the removals. Moschella, Hertling, and Nancy Scott-Finan of the Department’s Office of Legislative Affairs were also present from the Department. Goodling was also supposed to attend the briefing, but in her Congressional testimony, she said McNulty instructed her to remain outside the room in order to discourage the Senators from asking questions about the White House’s role in the removals. McNulty said he did not recall instructing Goodling to remain outside, but he said he was concerned that Goodling’s presence would make the removal process seem more “political” given the fact that Goodling’s position at the Department was uniquely associated with the Department’s political appointments.

The briefing was not transcribed, although Scott-Finan took notes. According to those notes, McNulty began the briefing by stating that the U.S. Attorneys had not been told the reasons for their removal, and he requested that the briefing remain confidential. McNulty also said that some of the issues with certain U.S. Attorneys predated his time at the Department. McNulty stressed at the briefing that the Department did not have candidates outside of the U.S. Attorneys’ Offices waiting to be appointed Interim U.S. Attorneys.

According to Hertling, Senator Schumer asked McNulty if the Department would share the EARS evaluations with the Judiciary Committee because Sampson had referenced them as something that the Department’s senior management had considered as part of the review process. Scott-Finan’s notes indicate that McNulty said that the EARS evaluations were mostly positive, there were no misconduct issues underlying the removals, and that the EARS evaluations were designed to review office management rather than how the U.S. Attorneys dealt with Main Justice.

According to Scott-Finan’s notes, McNulty stated that he had been consulted about the process of identifying U.S. Attorneys about whom the Department had serious questions and was considering the possibility of asking them to resign. McNulty stated that the process began within the Department in September or October 2006. McNulty also stated that the Department had sent the removal list to the White House Counsel’s Office in October 2006 and asked if they had any objection to the names, and they voiced no objections. McNulty then described the specific reasons for each U.S. Attorney’s removal.

With respect to the reasons for individual removals, Scott-Finan’s notes indicate that McNulty said the following about the U.S. Attorneys at the closed briefing:

Bogden lacked energy and leadership, and was “good on guns but not good on obscenity cases.”
McKay was “enthusiastic but temperamental,” had made promises that the Department could not support regarding information sharing, and was resistant to Department leadership.
Lam’s statistics for gun prosecutions placed her close to the bottom of all the U.S. Attorneys’ offices, and the Department had also discussed with Lam her poor record on immigration cases. McNulty acknowledged that no one followed up to see if she had changed her handling of gun and immigration cases before she was asked to resign.
Ryan’s office was the subject of a special EARS evaluation because the Department was concerned about his failures as a manager.
Charlton was asked to resign because of his insubordination in resisting the Department’s “way of doing business” in a death penalty case and his poor judgment in attempting to establish a rule that the FBI should tape-record interrogations.
Iglesias was underperforming, was an absentee landlord who was “physically away a fair amount,” and the Department had received congressional complaints about him.⁵⁵
Another U.S. Attorney [Chiara] was removed because of serious morale issues in the office and a loss of confidence in her leadership.⁵⁶
Cummins was not removed for performance reasons, and the Department had always intended to send Griffin through the nomination process.

Scott-Finan’s notes reflect that McNulty was asked several follow-up questions regarding Cummins. In response to a question concerning why the First Assistant, who was on maternity leave, was passed over for the Interim U.S. Attorney position, McNulty said that she was not passed over and that “Griffin was our guy all along.” McNulty said that Griffin’s name came up in the spring of 2006 as a replacement for Cummins, who had said publicly that he was thinking of moving on. Senator Schumer asked how it happened that Griffin was recommended to replace Cummins, and McNulty responded that Harriet Miers had called Sampson to determine whether the Department could find a place for Griffin. Senator Schumer asked McNulty whether Karl Rove was the instigator of Griffin’s replacement of Cummins. McNulty responded that he “wouldn’t put it that way” and said that it was rare for the White House to make U.S. Attorney recommendations without getting the names from home state members of Congress or other elected political officials.

McNulty’s statement during the closed briefing that Miers intervened on behalf of Griffin’s appointment appeared in a New York Times article on February 15, the day after the briefing. That same day, Associate White House Counsel Oprison sent an e-mail to Goodling asking her about the statement attributed to McNulty. Oprison told us that he sent the e-mail because he did not know that Miers had asked Sampson if the Department could find a place for Griffin. Oprison said he could not recall whether Goodling was able to supply any information about Miers’s involvement in finding a position for Griffin.

Oprison said that when he discussed the New York Times article with Deputy White House Counsel Kelley later that morning, Kelley seemed as surprised as Oprison, and Oprison said Kelley’s reaction led him to believe that the statement about Miers’s involvement was inaccurate. However, Oprison said he did not recall any further discussion about Miers’s involvement in the appointment of Griffin.

Elston’s Alleged Threat to Cummins

Cummins’s Quote in The Washington Post

According to Cummins, several of the removed U.S. Attorneys learned about the content of McNulty’s closed briefing from various Senate staffers shortly after the briefing.

On February 18, 2007, a Washington Post article stated that the removed U.S. Attorneys were enraged by McNulty’s hearing testimony and comments at the closed briefing, and felt betrayed because they had stayed silent about their removals. The article also noted that nearly all of the removed U.S. Attorneys had positive job evaluations, contrary to McNulty’s public statements that they were dismissed for “poor performance.” Cummins was quoted in the newspaper article as stating that Justice Department officials had “crossed a line” by publicly criticizing the performance of the U.S. Attorneys. The article quoted Cummins:

They’re entitled to make these changes for any reason or for no reason or even for an idiotic reason, but if they are trying to suggest that people have inferior performance to hide whatever their true agenda is, that is wrong. They should retract those statements.

In an e-mail on February 18, Bradley Schlozman, at the time the Interim U.S. Attorney for the Western District of Missouri, forwarded a copy of the Washington Post article to Elston. Schlozman’s e-mail stated, “Does Cummins really feel it’s in his interest to bash the AG like that?! . . . His public criticisms do not surprise me in the least. But it’s no less offensive. . . .” Later that evening, Elston responded, “This is going to get ugly, I’m afraid.”

Elston’s Telephone Call to Cummins

Cummins’s Account of the Telephone Call

On February 20, 2007, Elston telephoned Cummins to discuss the Washington Post article in which Cummins was quoted. Elston said he made that call on his own initiative because he was upset at what Cummins was quoted as saying in the article and thought it was inconsistent with the tone of his and Cummins’s previous conversations. According to both Cummins and Elston, during January and February they had had several cordial conversations about whether Cummins should accept congressional invitations to testify and whether Cummins would publicly support Griffin’s nomination. Cummins said that because McNulty had testified that Cummins was not removed for performance-related reasons but rather to give Griffin a chance to serve, Cummins initially felt he had no problems with the Department.

Cummins told us that initially he was hoping the Department would see he was still “on the team” in the event a judgeship opened up in the Eastern District of Arkansas. Cummins said that most of the removed U.S. Attorneys had a conference call to discuss congressional invitations to testify and to compare notes concerning their removals in light of McNulty’s testimony and his comments at the closed briefing. Cummins said that after learning the circumstances of their removals, he began to have concerns because he felt that Department management had not treated the U.S. Attorneys fairly.

Cummins said that Elston began their February 20 telephone conversation by questioning Cummins about the quote attributed to him in the February 18 Washington Post article. Cummins said Elston “came on strong” at the beginning of the conversation, but when Cummins asked Elston if Cummins’s quote was untrue, Elston backed down. According to Cummins, Elston expressed concern that Cummins’s remarks were inconsistent with Cummins’s previous expression of support for the Department.

Cummins said that during their discussion, Elston described himself as being part of a group that felt the Department had been too restrained and should publicly explain why the U.S. Attorneys were removed. According to Cummins, Elston said something to the effect that if the U.S. Attorneys kept commenting to the media about their removals, the Department would have no choice but to publicly disclose the reasons for their removals. Cummins said Elston implied that there was a body of information that no one had access to concerning the U.S. Attorneys that justified their removals. Cummins told us that Elston might have made that comment out of concern for the U.S. Attorneys as a prediction of how the dynamics would play out. However, Cummins said he thought Elston was clearly implying that if the U.S. Attorneys kept causing trouble, the Department would have to reveal embarrassing information about them to defend itself.

Cummins told us that he believed Elston knew Cummins would pass the message along to the other U.S. Attorneys. Cummins said he did not believe Elston was trying to stop the U.S. Attorneys from making public comments, but was relaying the message that if they kept talking to the media it was likely that the Department might have to publicly reveal information concerning why the U.S. Attorneys were removed.

Cummins’s E-mail to Bogden, Charlton, Iglesias, Lam, and McKay about the Telephone Call

Shortly after his conversation with Elston on February 20, Cummins sent an e-mail to Bogden, Charlton, Iglesias, Lam, and McKay describing his conversation with Elston. Cummins informed them that the essence of Elston’s message was that the Department believed it was taking “unnecessary flak to avoid trashing” the U.S. Attorneys. Cummins wrote that Elston implied that if the U.S. Attorneys continued to talk to the media or to organize behind-the-scenes congressional pressure, the Department would be forced to offer public criticisms of the U.S. Attorneys in order to defend its actions more fully. Cummins wrote in the e-mail: “I was tempted to challenge him and say something movie-like such as ‘are you threatening ME???’ but instead I kind of shrugged it off.”

Cummins also wrote in the e-mail that he had made it a point to tell Elston that the U.S. Attorneys had turned down multiple invitations to testify before Congress, and that Elston had responded that the Department would see such testimony as a major escalation of the conflict “meriting some unspecified retaliation.” Cummins wrote that it sounded like a threat that the Department would make public McNulty’s closed presentation to the Senate Judiciary Committee. Cummins noted that he did not want to overstate the threatening undercurrent in his conversation with Elston, “but the message was clearly there and you should be aware before you speak to the press again if you choose to do that.”⁵⁷

Elston’s Account of the Telephone Call

Elston told congressional investigators that he had called Cummins on February 20 to discuss the statement attributed to Cummins in the Washington Post article that the Department had crossed a line by publicly criticizing the performance of the U.S. Attorneys who had been removed. Elston said Cummins denied telling the reporter that the Department had crossed a line, noting that the phrase was not in quotes, and Elston said he took Cummins at his word. Elston said he believed he and Cummins had developed a good rapport and the statement attributed to Cummins in the newspaper article seemed out of character with their previous conversations, during which Cummins had expressed his gratitude for McNulty’s public testimony distinguishing Cummins from the other U.S. Attorneys.

Elston said he believed the Department had made a major effort not to publicly disclose the reasons for asking for the U.S. Attorneys’ resignations, but the reasons had been leaked to the media within days of McNulty’s closed briefing. Elston said that by the time he spoke with Cummins, he realized that it would likely be necessary for the Department to disclose publicly the reasons for the removals. Elston said he believed Cummins misinterpreted his remarks, which he said were more along the lines of saying that it was a shame that the reasons for the U.S. Attorneys’ removals were being discussed in the media because it was tarnishing the Department as well as the reputations of the individual U.S. Attorneys. Elston also asserted that it did not make sense that he threatened Cummins when McNulty had already stated that Cummins was in a different position than the other U.S. Attorneys. According to Elston, the Department had no derogatory information with which to threaten Cummins.

Elston said he did not recall the issue of congressional testimony arising during his February 20 conversation with Cummins. Elston said that if he and Cummins had discussed the issue, he would have reiterated that the Department would take no position on whether or not the U.S. Attorneys should testify.

Elston said he never intended to send Cummins or anybody else a message. Elston stated that he had no reason to believe Cummins was in contact with the other U.S. Attorneys, and he said he did not know that shortly thereafter Cummins sent an e-mail to the other U.S. Attorneys describing their conversation.

The Department’s Response to the Senators’ Letter

As previously noted, on February 8, 2007, the Department received a letter from Senators Reid, Schumer, Durbin, and Murray requesting information concerning Cummins’s removal and Griffin’s appointment as his replacement. Sampson drafted the Department’s response for Acting OLA Assistant Attorney General Hertling’s signature, and Sampson circulated the draft to others in the Department and the White House for comment.⁵⁸ The letter was reviewed and edited by Associate White House Counsel Oprison and returned to Sampson, who had the final sign-off on the language.⁵⁹

On February 23, the Department sent its response to the Senators, signed by Hertling. The response stated that none of the U.S. Attorneys were removed in an attempt to influence an ongoing investigation. The letter described why the replacement of Cummins with Griffin was appropriate, and stated that “it was well-known, as early as December 2004, that Mr. Cummins intended to leave the office and seek employment in the private sector.” The letter also stated that the decision to replace Cummins with Griffin was “first contemplated in the spring or summer of 2006, [and] the final decision to appoint Griffin as interim U.S. Attorney was made on or about December 15, 2006, after Attorney General Gonzales had spoken to Senator Pryor.” The letter also asserted that “The Department is not aware of Karl Rove playing any role in the decision to appoint Mr. Griffin.”

We found these statements to be misleading. As we fully describe in Chapter Five of this report concerning Cummins’s removal, the statement that it was “well known” in December 2004 that Cummins intended to leave office was misleading. The statement concerning the timing of Griffin’s appointment and the statement disclaiming Rove’s involvement in Griffin’s appointment were also misleading and they did not accurately portray what Sampson knew about those issues.⁶⁰

Events in March 2007

March 3 Washington Post Article

On March 3, 2007, the Washington Post published an article about the U.S. Attorney removals that included information provided by Brian Roehrkasse from the Department’s Office of Public Affairs and McNulty. The article contained several misstatements: “the list of prosecutors was assembled last fall;” the White House “did not encourage the dismissals;” and “the seven fired prosecutors were first identified by the Department’s senior leadership shortly before the November elections.”

According to the article, the Department had backed away from arguing that the decision to remove the U.S. Attorneys was “performance-related.” The article stated that Department officials acknowledged that the removals were undertaken primarily because the Administration was unhappy with the prosecutors’ policy decisions.

Later that same day, Sampson e-mailed Roehrkasse about the article and wrote: “Great work Brian. Kudos to you and the DAG.”

McNulty acknowledged that he talked to the two reporters who wrote the article and said he provided the information as he knew it at the time. During his interview with congressional investigators, McNulty stated that he did not know for certain that the statement that the White House “did not encourage the dismissals” was inaccurate, because the word “encourage” was a general term. In addition, McNulty said he could not say that the statements concerning when the list was assembled and when the Department’s “senior leadership” identified the U.S. Attorneys who would be removed were incorrect because that was when he first learned about the list of U.S. Attorneys to be removed.

Sampson also told congressional investigators that he did not think the statements in the article were inaccurate because, in his mind, the action phase of the project did take place in the fall of 2006. He characterized the earlier lists as “a highly deliberative sort of thinking process.” Sampson admitted that there was encouragement from the White House to come up with a list of U.S. Attorneys to be fired, but he described the White House’s involvement as “episodic.”

House and Senate Hearings

In early February 2007, the Commercial and Administrative Law Subcommittee of the House Judiciary Committee contacted the Department to request that McNulty testify at an upcoming hearing concerning the Attorney General’s authority to make interim appointments of U.S. Attorneys. McNulty directed that Principal Associate Deputy Attorney General Moschella appear as the Department’s witness at the hearing and at a staff briefing to be held prior to the hearing.

The hearing was scheduled for March 6, 2007, and the closed staff briefing was scheduled for March 1. On February 28, 2007, Cummins sent an e-mail to EOUSA Director Battle informing him that the House Subcommittee intended to subpoena Cummins and several of the other dismissed U.S. Attorneys to testify at the March 6 hearing. Later that day, Hertling informed Sampson, Goodling, Moschella, and Elston that the Subcommittee would subpoena Lam, McKay, and Iglesias.

Cummins’s February 20 E-mail Surfaces

Both the Senate Judiciary Committee and the House Judiciary Subcommittee had scheduled hearings for March 6 on the removals of U.S. Attorneys. Cummins, Lam, Iglesias, and McKay were scheduled to testify before the Senate Judiciary Committee in the morning and before the House Subcommittee in the afternoon. Moschella was scheduled to testify before the House Subcommittee in the afternoon.

McKay told us he was so offended by Elston’s February 20 “warning” to Cummins that the U.S. Attorneys should not testify that he related the incident to Senate staff when they interviewed him prior to his appearance before the Judiciary Committee. McKay’s remarks made their way to a reporter, who called the Department for comment before the hearing.

E-mails show that on Sunday, March 4, Roehrkasse told Elston he needed to speak with him about calls Elston had made in late February to some of the U.S. Attorneys. Roehrkasse told us that Elston informed him he did not call any of the U.S. Attorneys in February, with the exception of Chiara. Elston noted that he had talked to McKay and Charlton prior to the Attorney General’s congressional hearing in January to inform them that the Attorney General was not going to mention their names or discuss their offices.

Roehrkasse said that when he asked Elston if he had any other conversations with any of the removed U.S. Attorneys, Elston said he had talked to Cummins in February when Cummins asked him if the Department had any position on whether he should accept congressional invitations to testify. Roehrkasse said Elston denied telling Cummins he should or should not testify, and Elston denied threatening Cummins. Roehrkasse said that because he did not understand what the reporter was referring to, both he and Elston called the reporter.

According to Roehrkasse, the conversation with the reporter was very hostile, and the reporter continued to insist that Elston had threatened retaliation if the U.S. Attorneys kept talking publicly about their dismissals. Roehrkasse said that the reporter refused to identify her source, and Elston insisted that he had no conversation with any U.S. Attorney in which he discussed what should or should not be said about their removals. Elston also stated to the reporter that he had talked to Cummins, but only in the context of telling him that the Department had no opinion on whether or not he should testify.

Roehrkasse said that when the reporter said she was still going to write the story, he questioned how she could do so when an official from the Department had contradicted on the record an anonymous source’s vague allegation of a threatening telephone conversation. Roehrkasse said he was so upset that he called the reporter’s editor to complain, and the editor agreed to hold the story.

Cummins told us that a reporter contacted him on March 5 and told him that a source had given her information about Cummins’s conversation with Elston, and the reporter was going to write a story about it for the following day. Cummins said that the reporter told him she had contacted the Department earlier to ask for comment, and Roehrkasse had flatly denied that the call between Cummins and Elston took place. According to Cummins, the reporter told him that Roehrkasse pressured the reporter to kill the story, calling the reporting “irresponsible.”

Cummins said that the reporter also told him that she had talked to Elston, who denied that the call took place. According to Cummins, the reporter told him that Elston said Cummins was a liar and tended to exaggerate. Cummins told us that “that did not sit well with me.” He told the reporter about the February 20 e-mail to McKay, Lam, Iglesias, Bogden, and Charlton describing his conversation with Elston.

According to e-mails, toward the end of the day on March 5 the reporter informed Roehrkasse that she was going to write the story, and Roehrkasse told Elston he wanted to talk with him “about February 20.” Elston again denied that he had spoken with any of the U.S. Attorneys around February 20, with the exception of Chiara.⁶¹ Elston wrote Roehrkasse, “All of my calls occurred before the USA announced his/her resignation. Once the person announced, I had no further conversations with them.”

Roehrkasse said at that point he was unaware of Cummins’s February 20 e-mail to the U.S. Attorneys describing his conversation with Elston. Accordingly, Roehrkasse said he provided the reporter with the following quote: “It is unfortunate that the press would choose to run an allegation from an anonymous source from a conversation that never took place.”

The reporter’s story appeared on Tuesday, March 6 and cited interviews with two unnamed former U.S. Attorneys.⁶² The story stated that Roehrkasse had criticized the publication for running the story. The story also noted that while the U.S. Attorney who received the call said he regarded the tone of the conversation as congenial and not intimidating, he had informed the other removed U.S. Attorneys about the call and one of them had told the reporter he considered Elston’s remarks to be a threat.

Cummins, McKay, Lam, and Iglesias testified before the Senate Judiciary Committee on the morning of March 6. During the testimony, Senator Schumer asked McKay whether he had received any communication from the Department designed to dissuade him from testifying or making public comments. McKay referred Schumer to Cummins, who produced his February 20 e-mail and related the story of his conversation with Elston, adding that he did not necessarily consider Elston’s remarks to be a threat. A Department official attending the hearing immediately faxed a copy of the e-mail to Moschella and Elston, noting that the e-mail would likely be raised during Moschella’s hearing before the House Judiciary Subcommittee that afternoon.

The Department issued a public statement that day which described Elston’s February 20 conversation with Cummins as “private and collegial” and stated that it was “somehow being twisted into a perceived threat by former disgruntled employees grandstanding before Congress . . . .” The statement also denied that Elston told any U.S. Attorneys what they should and should not say about their dismissals. The statement further noted that “any suggestion that such a conversation took place is ridiculous and not based on fact.”

When we asked Roehrkasse about the Department’s public statement describing as “ridiculous and not based on fact” that such a conversation took place, he told us that he still believed it was accurate. However, he said he regretted saying that the U.S. Attorneys were “grandstanding before Congress.” He said he could have used a different phrase than “disgruntled employees,” but he said that at the time he thought that Cummins had taken liberties describing his conversation with Elston. Roehrkasse said that even after he reviewed Cummins’s e-mail he did not question Elston’s account of events because Cummins had conceded during his Senate testimony that he did not perceive the conversation as a threat.

After learning about Cummins’s statements at the hearing, Elston immediately drafted a letter to Senator Schumer in which he noted that he was “shocked and baffled” by Cummins’s February 20 e-mail. Elston wrote that he did not understand how anything he told Cummins could have been construed as a threat. Elston wrote that he never tried to suggest to Cummins what he or the other U.S. Attorneys should or should not say about their resignations.

As discussed above, Elston denied to us making any remarks to Cummins that could have been construed as a threat. Elston also said it was inconsistent for Cummins to imply that Elston’s remarks conveyed a threat, since Cummins had consistently said how grateful he was that McNulty had separated Cummins from the other U.S. Attorneys when McNulty testified about the removals.

Moschella’s Testimony Before the House Judiciary Subcommittee

Preparation Sessions

Moschella had two preparation sessions prior to his closed congressional briefing on March 1 and his testimony on March 6 before the House Judiciary Subcommittee. The sessions were attended by Sampson, Goodling, Nowacki, and Roehrkasse.⁶³ According to Moschella, the focus of the sessions was primarily on the various issues surrounding the Attorney General’s interim appointment authority, which Congress was seeking to repeal at the time.

Moschella, who had not been involved in the process leading to the removal of the U.S. Attorneys, said he first became familiar with the reasons underlying the U.S. Attorney removals by attending McNulty’s closed congressional briefing. Moschella said he prepared for his testimony with the same materials McNulty had used for his briefing.⁶⁴

Discussion in Preparation Sessions About White House Involvement

Moschella told us that during one of his preparation sessions someone asked what he would say if he was asked when the White House became involved in the removals. Moschella said he answered the same way he had heard McNulty answer the question in McNulty’s February 14 briefing before the Senate Judiciary Committee: the White House became involved in the fall of 2006, primarily to sign off on the proposal. Moschella said he could not recall who asked the question.

The group that prepared Moschella for his Congressional testimony included Sampson, Goodling, Hertling, Nowacki, Scott-Finan, and Roehrkasse.⁶⁵ He told us that although neither Sampson nor Goodling ever affirmatively represented that the White House’s involvement with the U.S. Attorney removals began in the fall of 2006, they should have explained that the White House had been involved in the matter earlier. Moschella said no one corrected his misunderstanding concerning the timing or level of the White House’s involvement in the removals during his preparation sessions.

Moschella also said that the timing of the origin of the removal process was not discussed in his preparation sessions. He said he had heard McNulty say that the process of removing U.S. Attorneys began during the fall of 2006, and Moschella believed that to be the case until he learned differently a few days after his testimony.

Roehrkasse confirmed to us that the issue of the White House’s involvement in the U.S. Attorney removals was discussed during the preparation sessions for Moschella’s testimony. Although he said he could not recall specifically what was said, Roehrkasse told us that Sampson and Goodling led him and Moschella to believe that the White House’s involvement was much less than it actually was. According to Roehrkasse, Sampson advised Moschella about what to say about this issue, although the advice focused on the level of the White House’s involvement rather than the timing of its involvement. Roehrkasse said he recalled Sampson mentioning that the White House had clearly signed off on the proposal at the end of the process.

Sampson told us he believed that questions concerning the specific timing of the removal process and the nature of the White House’s involvement did not arise in the preparation sessions. He said that he was not focused on the historical background of the process at the time. Sampson said that his perception at the time of the preparation sessions was that the “action phase” of the process took place in the fall of 2006. Sampson said that the preparation sessions were focused on the salient questions at the time, which were whether the U.S. Attorneys were removed in order to interfere with a particular prosecution and whether the administration intended to bypass the Senate confirmation process.

March 5 Meeting at the White House to Discuss Moschella’s Testimony

At this time, e-mails between Sampson and White House officials show that the White House was concerned that the Department had not adequately explained why the U.S. Attorney removals were justified. Until the day of Moschella’s public testimony, which occurred on March 6, the Department had not publicly described its reason for requesting the resignation of each U.S. Attorney.

On March 5, Deputy White House Counsel Kelley called a meeting with Sampson, McNulty, Moschella, Elston, Hertling, Scolinos, Roehrkasse, and Battle. White House Counsel Fred Fielding, Associate White House Counsel Michael Scudder, and Karl Rove also attended the meeting. Kelley’s e-mail stated that the purpose of the meeting was to discuss the Administration’s position on all aspects of the U.S. Attorney removals issue, including what the Department would say about the removals and the Attorney General’s interim appointment authority.

According to several witnesses, Rove came in to the meeting for only a few minutes and then left. Battle said Rove spoke at the meeting but he could not recall what he said. McNulty said that he could not specifically recall either, but thought Rove said something to the effect that Moschella’s testimony should explain why the U.S. Attorneys were removed. None of the witnesses said they could recall specifically what Rove said at the meeting, although all agree that the discussion generally centered on what Moschella should say about the reasons for each U.S. Attorney’s removal.

According to Moschella, there was significant discussion at the meeting about whether to publicly discuss the specific reasons for the removals. Moschella said that Attorney General Gonzales had expressed concern about damaging the reputations of the U.S. Attorneys, and no one at the meeting wanted to say anything derogatory about them. Moschella told us that, nevertheless, the consensus in the meeting was that he should publicly state the reasons for each U.S. Attorney’s removal. McNulty said the primary concern White House officials expressed at the meeting was that because the U.S. Attorneys were going to testify and might suggest that they were removed for improper reasons, Moschella should specify the Department’s justification for each U.S. Attorney’s removal.

Sampson said that in addition to discussing what Moschella should say in his testimony about the removals, the group discussed what Moschella would say about the pending legislation to repeal the Attorney General’s interim appointment authority. According to Sampson, the Department had submitted written testimony to the White House for clearance through the Office of Management and Budget which said that the Administration opposed the repeal.

Hertling told us that the purpose of the White House meeting was to discuss the proposed legislation as well as what Moschella would say about the removals. Hertling said that the White House Communications Office wanted to know what Moschella would say about the removals in order to prepare for press inquiries resulting from his testimony. Hertling said it was not a meeting to prepare Moschella for his testimony but was instead a briefing for the White House about what Moschella planned to say.

Sampson and Moschella said that the White House and the Department also decided at the meeting that the Administration should not oppose the repeal of the Attorney General’s authority to appoint Interim U.S. Attorneys. According to Moschella, although the White House was “sympathetic” from a policy standpoint to the Department’s belief that the Attorney General’s power to appoint Interim U.S. Attorneys was justified, the White House was of the opinion, given the bad press and the political atmosphere, that the Administration should not oppose the repeal.

Moschella’s Testimony

Moschella testified before the House Judiciary Subcommittee on the afternoon of March 6, just prior to the testimony of former U.S. Attorneys Lam, McKay, Iglesias, Cummins, Charlton, and Bogden, who were present when Moschella testified.⁶⁶ Moschella began his testimony by stating that each of the U.S. Attorneys was removed “for reasons related to policy, priorities and management – what has been broadly referred to as ‘performance-related reasons.’” Moschella then briefly discussed the justifications for the removals.

Moschella did not mention Chiara and Ryan by name because they were not present at the hearing and had not publicly acknowledged that the Department had asked them to resign along with the others. Moschella instead stated that two unnamed U.S. Attorneys were removed because they had problems managing their districts.

Moschella testified that Lam was removed because her gun prosecution numbers were “at the bottom of the list” and her immigration prosecution numbers “didn’t stack up.” Moschella stated that the Department “had policy differences” with McKay and was “concerned with the manner in which he went about advocating particular policies,” including McKay’s “advoca[cy] for a particular [information sharing] system.”

Moschella testified that Cummins was removed not for performance-related reasons but to give Griffin a chance to serve. Citing the importance of Bogden’s district of Las Vegas, Moschella said that “there was no particular deficiency,” but there was an interest in “seeing renewed energy and renewed vigor in that office, really taking it to the next level.” Moschella said that the Department had the general sense that Iglesias’s district was “in need of greater leadership,” and that Iglesias “had delegated to his first assistant the overall running of the office.” Moschella stated that Charlton had instituted a policy in his district, without first obtaining Department approval, that required the FBI to tape-record interrogations, and he had refused to abide by the Attorney General’s decision to seek the death penalty in a particular case.

Moschella’s testimony was the first time the U.S. Attorneys heard from the Department the alleged reasons for their removals.

Moschella testified incorrectly that the process to remove the U.S. Attorneys had begun in early October 2006. Moschella stated that the White House eventually became involved in the removals, but he mistakenly implied that it was only to sign off on the proposal because the U.S. Attorneys were Presidential appointees. Moschella told us he based his testimony on what he had heard McNulty say in his public testimony and during his closed briefing before the Senate Judiciary Committee.

Lam, Iglesias, McKay, Charlton, Cummins, and Bogden testified immediately following Moschella. Among other things, Iglesias challenged Moschella’s assertion that he was dismissed because the office “lacked leadership,” and he cited statistics showing improvement in the number and types of prosecutions and convictions in his office. Bogden said that he resented Moschella’s implication that he was asked to step down “so new blood could be put in” to the position. Bogden noted that he was very proud of what his staff had accomplished during his tenure as U.S. Attorney. Charlton testified about the irony of Moschella’s statement that he was removed because he had implemented the taping policy in his district in February 2006, because he had offered to resign at the time rather than to rescind the policy.

Cummins testified that the Department “horribly mismanaged” the U.S. Attorney removals. Cummins stated that Moschella had suggested that the U.S. Attorneys had done something wrong but the Department had not told the U.S. Attorneys why they were removed. McKay disputed Moschella’s assertion that he was removed because of the way he advocated the information sharing system, and said that all of his work on the program had been authorized by former Deputy Attorney General Comey. Lam responded to Moschella’s statement regarding her immigration and gun prosecution statistics by stating that her emphasis in immigration cases was on tackling larger cases, and that gun prosecutions were being handled “extremely responsibly” by the local District Attorney’s Office.

Iglesias testified that he believed he was forced out as U.S. Attorney for the District of New Mexico because he failed to respond to political pressure to indict a public corruption case against a Democratic official before the November 2006 election. In his testimony, Iglesias revealed that New Mexico Representative Heather Wilson and Senator Pete Domenici separately telephoned him in October 2006 to ask about the status of a pending public corruption matter. Iglesias said that in both calls he believed he was being pressured to bring an indictment before the November election.

Attorney General Gonzales’s March 7 Op-Ed Article

Moschella’s testimony increased concerns about the reasons why the U.S. Attorneys were removed. Sometime during the first week of March 2007, a USA Today reporter told the Department’s Office of Public Affairs that the newspaper would soon editorialize on the U.S. Attorney removals, and offered the Department the opportunity to provide an “opposing view essay.” Public Affairs Director Scolinos recommended to McNulty, Sampson, Goodling, and Moschella that the Department submit an editorial under Gonzales’s name so that it would “pack some punch.” Sampson agreed with Scolinos’s recommendation.

On March 7, 2007, USA Today published an editorial under Attorney General Gonzales’s name entitled, “They lost my confidence.” The editorial contained two statements that further exacerbated the controversy: “While I am grateful for the public service of these seven U.S. Attorneys, they simply lost my confidence”; and “I hope that this episode ultimately will be recognized for what it is: an overblown personnel matter.” Gonzales told us that he did not authorize either statement to be contained in the editorial. We therefore investigated how the editorial was developed.

Roehrkasse told us that he wrote the first draft of the editorial. His draft, which we reviewed, expressed the Department’s regret regarding the manner in which the removals were handled. A sentence at the end of the draft stated that U.S. Attorneys serve at the pleasure of the President and that “[i]f they are not executing their responsibilities in a manner that furthers the management and policy goals of departmental leadership, it is appropriate that they be replaced with other individuals.” Roehrkasse sent the draft to one of the Attorney General’s speechwriters, asking her to edit and “polish” the essay.

The speechwriter changed the tone of the essay to stress that the removals were essentially a personnel matter. The edited version began by noting that “the handling of personnel matters is one of the toughest challenges employers face,” and concluded with a sentence characterizing the controversy about the removals as a “tragically overblown personnel matter.” Our review of documents and e-mails shows that most of that new phrase remained in every draft version thereafter, and appeared in the published version as an “overblown personnel matter.”

Scolinos received a copy of the draft essay at 4 p.m. on March 6 and made only a few edits before forwarding it to Sampson for further review and for the Attorney General’s approval. Scolinos told us that USA Today’s 6:30 p.m. deadline was rapidly approaching when Sampson called to tell her he had made some edits to the essay but could not e-mail them to her because the Department’s computers had crashed.

Scolinos said that the essay was past due when Sampson and Attorney General Gonzales brought it to her office. Because the computers were still down and because Scolinos was on a call with another reporter, Sampson read the editorial to a USA Today reporter over the telephone in another office while Gonzales waited in Scolinos’s office.

Scolinos said that when Sampson read the editorial to the USA Today reporter, he inserted into the essay the line, “While I am grateful for the public service of these seven U.S. Attorneys, they simply lost my confidence.” Scolinos said when Gonzales later heard what Sampson had read to USA Today, he told her he was unhappy because he had told Sampson to remove the line containing the phrase “tragically overblown personnel matter,” but Sampson left part of the phrase in, and he added the line “they simply lost my confidence” without Gonzales’s knowledge. Scolinos said that Gonzales told her that he would not have said that, and that Sampson nevertheless tried to defend the statement.

According to Scolinos, Gonzales asked if they could retract the essay. Scolinos advised against it, given the fact that the Attorney General’s Chief of Staff had just called in an editorial purporting to be from the Attorney General.

Sampson told us that he added the phrase “they lost my confidence” because he had to make a quick judgment while dictating the essay over the telephone, and he believed the language the Attorney General wanted to use in its place was “bad grammar.”⁶⁷ Sampson acknowledged that he had added the phrase without the Attorney General’s approval.

Gonzales told us that the phrase was “a terrible thing to say about somebody,” and the essay did not reflect what he wanted to say. However, when we asked Gonzales how his Chief of Staff could inaccurately represent to a national newspaper that the words of the essay were the Attorney General’s, Gonzales said, “I don’t have an answer for that.” Gonzales told us that he had stopped reading newspapers by the time the essay was published on March 7, and that he never talked directly with Sampson about the essay after it appeared.

Additional Documents Come to Light

Over the next several days, the controversy about the removal of the U.S. Attorneys intensified further. On March 7, the Senate Judiciary Committee asked the Attorney General to make certain Department staff, including Sampson and Goodling, available for interviews or public testimony about the removals. On March 8, the House Judiciary Subcommittee requested documents and other information related to the removals.

Also on March 8, Gonzales met with Senators Leahy, Schumer, Feinstein, and Specter to discuss their request to interview Department staff and to obtain documents concerning the removals. At the end of the meeting, Gonzales agreed to produce the documents. He also agreed to discuss making Goodling and Sampson available for interviews.

According to Roehrkasse, in an attempt to present a clearer picture of the Department’s involvement in the U.S. Attorney removals, Scolinos and Roehrkasse had planned to brief reporters from The Washington Post and The New York Times on Friday, March 9 about the chronology of the removal plan so that the reporters could write stories to appear over the weekend. According to Roehrkasse, the stories were supposed to follow up on Moschella’s testimony about the specific reasons for the removals by providing an explanation of how the removals came about.

On the evening of March 7, Roehrkasse informed Sampson that he needed documents and other information about the removals to provide background information to the reporters, and Roehrkasse arranged to meet with Sampson the following day. Sampson prepared for his meeting with Roehrkasse by printing out documents and e-mails from his computer concerning the removals.

Roehrkasse said that when he met with Sampson on March 8, Sampson discussed how he had met with Comey, Mercer, and McNulty and developed the removal list after “picking their brains” about which U.S. Attorneys they would recommend for replacement. Roehrkasse said Sampson also told him that the removals had been in the works with the White House Counsel’s Office for a long time. Roehrkasse said that Sampson showed him an e-mail to Harriet Miers dated January 6, 2006, containing a list of U.S. Attorneys he recommended for removal, which showed that the White House had been involved much earlier than the fall of 2006. Roehrkasse said that Sampson also told him that he had had conversations with the White House dating back to the beginning of 2005 about removing U.S. Attorneys.

Roehrkasse said that he took copies of the documents Sampson had printed out, and that shortly after his meeting with Sampson he realized while reviewing the documents that Moschella’s congressional testimony was inconsistent with what the documents showed. Roehrkasse said he discussed his concerns with Scolinos, and together they discussed the problem with officials in the White House Communications Office. According to Roehrkasse, it was the first time White House communications officials became aware of the origin of the plan to remove the U.S. Attorneys, and of the White House’s greater level of involvement in the removals.

According to Gonzales, during the afternoon of March 8 Scolinos called to inform him of the discovery of the documents. Gonzales then discussed the matter with McNulty, who Gonzales said was very unhappy that he was not correctly informed about the timing and substance of the White House’s involvement in the removals. Gonzales said he instructed Scolinos to discuss the matter with Sampson to address the problem.

Moschella told us that in the late afternoon of March 8 he saw Goodling in the hallway and she looked very distraught and upset. According to Moschella, when he asked what was wrong Goodling was evasive but said there was something going on in the Office of Public Affairs concerning the U.S. Attorney matter.⁶⁸

Moschella said that after he spoke with Goodling, he went to see McNulty, who was on his way out of the office. Moschella said he asked McNulty if he thought he knew the whole story concerning the U.S. Attorney removals. Moschella said McNulty told him that there was more to the story, but he did not have time to discuss it at that point. Moschella said McNulty told him that Sampson had found some documents that shed light on the removals. Moschella said that when he discussed the matter with Sampson later that evening, Sampson showed him the e-mails indicating far earlier, more active White House involvement in the U.S. Attorney removals than Moschella had testified about.

Moschella said he was “flabbergasted” when he saw these documents. Moschella said he immediately told Sampson that the Department’s Office of Legal Counsel would have to become involved in light of this new information and would need to oversee the Department’s response to congressional document requests. Moschella told us he was very angry with Sampson and expressed that anger in no uncertain terms.

Sampson told us that when he initially retrieved the documents and e-mails he was not focused on the issue of what the Department had represented to Congress about the timing and nature of the White House’s involvement in the removals. Sampson also said he had not focused on that issue during the preparation sessions for McNulty’s and Moschella’s testimony.

Sampson said that when he initially located the e-mails, he felt that they proved that the Department was always planning to work with the Senate to find replacements for the U.S. Attorneys and that there were no politically connected candidates slated to replace the U.S. Attorneys.⁶⁹ Sampson also said that the documents proved that the Department and the White House had been discussing the removal of U.S. Attorneys for a long time, which he said refuted the claim that U.S. Attorneys were removed to interfere with, or in retaliation for, any prosecution.

Sampson said he did not realize the documents presented a problem until he showed them to Moschella, who expressed concern that Congress would believe he had testified falsely. Sampson said he told Moschella his fear was unjustified. Sampson said that both Moschella and McNulty seemed upset with him, but Sampson did not believe he had misled them into testifying inaccurately. Sampson said that when he read the documents to Margolis later and asked what he thought, Margolis said, “I think you’re going to be testifying [before Congress].”

Sampson said that until March 8, there had been no discussion of the Department making documents or additional Department staff available to Congress. However, Sampson said he knew that subpoenas were on Congress’s agenda, and he thought there would be a battle with Congress over executive privilege regarding the documents. Sampson stated that when Attorney General Gonzales met with the Senators on the afternoon of March 8, the Attorney General “caved” and agreed to make all staff and all the documents available. Sampson said he recognized that this meant the documents he had just discovered would be produced to Congress.

McNulty told us that at some point during the afternoon of March 8, he went to Sampson’s office and Sampson showed him the documents indicating earlier, more substantive White House involvement in the removals. McNulty said that when Sampson showed him the e-mails, Sampson said something to the effect of “here is a new issue we are going to have to address.” McNulty said he did not study the documents closely but saw that there were references to compiling names prior to the October 2006 timeframe that McNulty had discussed in his closed briefing with the Senate Judiciary Committee. McNulty said that what he saw of Sampson’s documents was sufficient to call into question the accuracy of his and Moschella’s congressional testimony. McNulty said Sampson did not seem excessively troubled when he showed McNulty the documents, although Sampson appeared to realize it was a major development.

Early the next morning, Friday, March 9, Sampson offered the Attorney General his resignation. Sampson told us that it had been “a tough week,” and Gonzales was not happy with him after the USA Today editorial appeared on March 7. Sampson said that after the documents came to light on March 8, he believed the Department needed someone to manage its response to Congress, but given his role in creating the predicament he did not think he was the right person to do so. He said that when he offered Gonzales his resignation, he told Gonzales that he was sorry for his role in creating a “political scandal.” Sampson later testified to Congress he believed that as Chief of Staff he could have, and should have, helped to prevent the Department from making incorrect representations about the U.S. Attorney removals. Sampson said that he felt “honor bound” to accept his share of the blame for the problem and to hold himself accountable.

Gonzales did not accept Sampson’s resignation immediately. During the morning of March 9, McNulty, Moschella, Sampson, and Hertling met with Steve Bradbury, Acting Assistant Attorney General for the Office of Legal Counsel, to discuss how to proceed. According to Moschella, Sampson did not apologize or explain why he did not tell McNulty or Moschella about his contacts with the White House Counsel’s Office before the fall of 2006.

Later that day, employees from the Department’s Office of Information and Privacy began conducting searches on the Department’s senior staff’s computers and in files for documents relevant to the removals to produce documents requested by Congress. The searches continued over the weekend and for several days thereafter. On March 13, the Department began producing documents to Congress.

According to McNulty, Gonzales asked him to formulate a plan to address how the Department should handle the problems the controversy had brought to light concerning the removals and how they were accomplished. McNulty said Gonzales expressed some ideas to him over the telephone, and on Saturday, March 10, McNulty drafted a memorandum entitled “United States Attorneys Reforms and Remedies.” Among the suggestions in the memorandum were developing a systemic performance review process for U.S. Attorneys; reviewing the U.S. Attorney’s Manual reporting requirements for contacts between political officials and U.S. Attorneys; establishing a protocol to ensure that the discipline or removal of a U.S. Attorney is not inappropriately connected to a public corruption case; directing the Department’s Office of Professional Responsibility to conduct an investigation into the removals of the U.S. Attorneys; assisting Bogden, Iglesias, and Chiara with future employment, perhaps in the Department; and communicating the Attorney General’s regret regarding the handling of the removals directly to the U.S. Attorneys.

Sampson’s Resignation

On Monday, March 12, the Attorney General accepted Sampson’s resignation. Gonzales said when he accepted the resignation he told Sampson that the USA Today editorial had really hurt Gonzales.

Sampson told us that when Gonzales accepted his resignation, Sampson told Gonzales he thought accepting the resignation was a mistake, but Gonzales was adamant that Sampson needed to resign. Sampson said he told Gonzales it was his prerogative, but said he had offered his resignation earlier only because he thought it was the honorable thing to do.

After offering his resignation as Chief of Staff, Sampson attempted to arrange another political appointment in the Department as a Counselor to the Assistant Attorney General in the Environment and Natural Resources Division (ENRD). Sampson told us he was concerned about not having a job lined up, and he asked Gonzales to reassign him elsewhere in the Department while he considered what to do next. Sampson said his reassignment to ENRD did not occur, because after the Attorney General’s press conference on March 13 and the subsequent media coverage Sampson thought he needed legal representation. Sampson resigned and left the Department effective March 14, 2007.

The Scudder Memorandum

During our investigation, we also learned that in early March 2007 White House Associate Counsel Michael Scudder (a former Department attorney) was directed by the White House Counsel to prepare a chronology of events related to the U.S. Attorney removals. According to the White House Counsel’s Office, the chronology was developed so that the White House could respond to inquiries about the matter. To accomplish that task quickly, Scudder interviewed several people in the Department and within the White House, including Karl Rove. As a result of his interviews and review of documents, in March 2007 Scudder produced at least two drafts of a memorandum setting out a chronology of events related to the removals of the U.S. Attorneys.

Scudder also provided these drafts to the Department’s Office of Legal Counsel (OLC). When OLC prepared its own more extensive chronology of events, it used Scudder’s draft memoranda to supplement its efforts. According to e-mail records, around March 20, 2007, as part of Attorney General Gonzales’s effort to understand the circumstances surrounding the removals, OLC provided Scudder’s memorandum to Gonzales. However, Gonzales told us he did not recall seeing Scudder’s chronology.

We asked OLC for a copy of the memorandum and all the drafts, but OLC declined, stating that the White House Counsel’s Office had directed OLC not to provide them to us. We thereafter engaged in discussions with the White House Counsel’s Office during this investigation in an attempt to obtain the Scudder memorandum. The White House Counsel’s Office agreed to read one paragraph of the memorandum to us, and provided us with two paragraphs of information concerning Rove that had already been reported publicly, but declined to provide any further information from the memorandum. Eventually, the White House Counsel’s Office provided us with a heavily redacted version of the document. We believe the refusal to provide us with an unredacted copy of this document hampered our investigation.

Attorney General Gonzales’s March 13 Press Conference

On Tuesday, March 13, Attorney General Gonzales held a brief press conference concerning the U.S. Attorney removals. According to Roehrkasse, the purpose of the press conference was to show that the Department was in control of the situation now that it had become clear that there was a greater level of White House involvement than Department officials had previously portrayed, and to respond to the perception that the Department was withholding information.

Gonzales began the press conference by stating that all political appointees serve at the pleasure of the President. He stated that he would in no way support an effort to circumvent the Senate’s advice and consent role with respect to the appointment of U.S. Attorneys. He acknowledged that the Department had made mistakes, said he accepted responsibility for them and pledged to find out what had gone wrong. Gonzales also said that incomplete information had been given to Department officials, who then communicated that information to Congress. Gonzales then stated that “all political appointees can be removed by the President of the United States for any reason” and that he stood by the decision to remove the U.S. Attorneys.

During the press conference, Gonzales made several statements about his own role in the removal process that were inaccurate. Gonzales specifically stated that he “was not involved in seeing any memos, was not involved in any discussions about what was going on.” Later in the press conference, Gonzales reiterated, “I never saw documents. We never had a discussion about where things stood.”

Gonzales later testified to Congress that he should have been more careful about his public statements and that he had not reviewed relevant documents or his calendar before the press conference. Gonzales said that once the documents contradicting the Department’s prior public statements came to light, he had felt it necessary to quickly and publicly defend the Department from accusations about improper conduct.

Attorney General Gonzales Directs an Investigation

In accordance with the plan Gonzales and McNulty had discussed during the weekend, on March 12 Gonzales, McNulty, and Elston discussed having the Department undertake an internal investigation of the removals. An e-mail dated March 13, from Elston to Marshall Jarrett, Counsel of the Office of Professional Responsibility (OPR), stated that the Attorney General had directed OPR to investigate the basis for the removals. Elston wrote in the e-mail to Jarrett:

As we discussed last night . . . The Office of Professional Responsibility (OPR) has been directed to undertake an expedited investigation of whether any of the removals of the USAs on December 7, 2006, were intended to interfere with or in retaliation for a public integrity investigation. OPR has also been directed to make recommendations on how best to avoid or effectively respond to such alleged appearances in the future.

On March 14, OPR delivered a preservation of records memorandum to the Attorney General’s office.

A few days later, the Inspector General learned about the assignment of the investigation to OPR and objected, stating that he believed the Office of the Inspector General (OIG) had jurisdiction to investigate these issues. OPR disagreed. Eventually, the OIG and OPR agreed to conduct this investigation jointly, and the scope of the resulting investigation was much broader than suggested by Elston’s e-mail.

Attorney General Gonzales’s Conversation with Goodling

On Thursday, March 15, Goodling met with Attorney General Gonzales to request a transfer. According to Gonzales, Goodling came into his office in an extremely distraught state, and sat down in a slouched position with her head bowed holding her hands together. Gonzales told us that Goodling said she was paralyzed and could not do her work. Gonzales asked her why and she said something about having had the same information that Sampson had. Gonzales told us he had the impression that Goodling was feeling guilty or confused or frightened. Gonzales said he told her, “No one intentionally has done anything wrong.” He said he wanted to reassure her and began to tell her what he knew about what had happened with regard to the U.S. Attorney removals. However, Gonzales told us he did not remember specifically what he told her about the removals.

Gonzales told us that, in the meeting, Goodling sought a transfer either to another component in the Department or to the Eastern District of Virginia as an Assistant United States Attorney. Gonzales also recounted for us a detailed and very personal story he said Goodling told him during their conversation concerning why she went to law school and wanted to become a prosecutor. According to Gonzales, he told Goodling he would consider her request for a transfer and assured her that they would get through the current situation. Gonzales said it seemed that Goodling felt better and left his office.

In her testimony about this incident before the House Judiciary Committee, Goodling said the conversation with Gonzales made her uncomfortable because she was concerned they might have to testify about the U.S. Attorney removals at some point. Goodling confirmed in her testimony that she was distraught and was seeking a transfer, and that Gonzales told her he would need to think about it. Goodling said that after that part of the conversation, Gonzales was “just trying to chat” and said “‘let me tell you what I can remember.’” According to Goodling, Gonzales laid out his general recollection of some of the events concerning the removals, and then asked her if she had any reaction to what he said. Goodling said that Gonzales mentioned that he thought that everybody who was on the removal list was there for a performance-related reason, and he had been upset with McNulty because he thought McNulty wrongly testified that Cummins was removed only to give Griffin a chance to serve. In her congressional testimony, Goodling said there was more to her discussion with Gonzales, but she said she could not recall anything further at that time.

Goodling said she remembered thinking that it was not appropriate for them to be discussing these issues at that point because they both might have to testify later, and so she did not respond. Goodling said that before the conversation took place the Attorney General had informed her that the Department was negotiating whether she would be interviewed or would testify before Congress. In her congressional testimony, Goodling said she did not believe that Gonzales was trying to shape her recollection.

When we asked Gonzales about his conversation with Goodling, he said that he did not see how anyone could attempt to shape Goodling’s testimony because she was normally such a “very confident, strong-willed young woman.” Gonzales said he did not recall talking to Goodling about Cummins or about being upset with McNulty. When we asked Gonzales why he had such a detailed memory of other aspects of their conversation, such as her demeanor and the story about why she went to law school and wanted to be a prosecutor, but could not recall if they discussed Cummins and McNulty, Gonzales conceded, “it may very well be. I’m not saying that I didn’t talk about Bud Cummins or didn’t talk about McNulty.” When we asked Gonzales whether he considered that it might have been inappropriate for him to discuss his recollections with Goodling, he told us that he did not give it any thought at the time because he was just trying to help her.

Goodling Resigns from the Department

On March 15, Chuck Rosenberg, the U.S. Attorney for the Eastern District of Virginia, agreed to serve as the Attorney General’s interim Chief of Staff after Sampson resigned. Rosenberg recalled that on March 16 Goodling came into his office at Main Justice extremely distraught, stating that her life was ruined. Rosenberg said she mentioned wanting to transfer to the Eastern District of Virginia to become an AUSA. Rosenberg told Goodling that he wanted to talk to her but was unable to do so at the time.

Rosenberg said that when Goodling left his office, he expressed his concern about her well-being to Gonzales, who told him that Goodling had been to see him earlier in a similar emotional state. Rosenberg said he and Gonzales did not discuss the substance of Gonzales’s conversation with Goodling, only her emotional state. Rosenberg said he learned only after Goodling testified before Congress that Gonzales may have discussed issues with Goodling concerning the removals.

After Rosenberg spoke to Gonzales about Goodling, Rosenberg enlisted the assistance of Courtney Elwood, who was then the Attorney General’s Deputy Chief of Staff, to help Goodling. According to Elwood, Goodling was visibly shaking, crying, and in extreme distress. Elwood said that Goodling said that after Gonzales’s press conference on March 13, she felt she had been accused of misleading McNulty in the representations he made to Congress about the removals. Elwood urged Goodling to take some time off to take care of herself.

On March 19, Goodling scheduled annual leave through the end of March. Goodling never returned to work at the Department, and she resigned from the Department, effective April 7, 2007.

Subsequent Events

According to Rosenberg, by late March or early April 2007 Gonzales was seeking ways to reach out to the U.S. Attorneys who had been removed in December 2006. Rosenberg said that Gonzales discussed writing a personal note to each of the U.S. Attorneys and enclosing an Op-Ed piece he would write that contained his personal apology to them. Rosenberg said that Gonzales drafted notes for an essay admitting that the U.S. Attorneys had not been treated well and that they were excellent public servants, even though they had been asked to leave. However, the essay was never sent for publication. Instead, according to documents we reviewed, the Attorney General’s written testimony for his April 19 hearing before the Senate Judiciary Committee contained an apologetic tone for the way the removals were handled.

In his written remarks prior to his April 19 testimony, Gonzales stated that the U.S. Attorneys “deserved better – they deserved better from me and from the Department of Justice which they served selflessly for many years.” Gonzales stated that “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.”

Gonzales testified before the Senate Judiciary Committee on April 19 and the House Judiciary Committee on May 10, 2007. In response to questions concerning the circumstances of the removals, Gonzales stated that he had not spoken to Sampson or to others who were involved in the removals once he became aware the matter was being investigated. Gonzales also stated that he had not discussed the removals with other fact witnesses in order to protect the integrity of the OIG-OPR investigation.

In his testimony before the Senate Judiciary Committee on July 24, 2007, Gonzales acknowledged he had had a conversation with Goodling on March 15 during which he discussed his recollection of some of the facts regarding the removals. However, Gonzales said he did so only in the context of trying to console and reassure Goodling that she had done nothing wrong.

On May 14, McNulty announced that he would resign as Deputy Attorney General and he left the Department at the end of July 2007.

On August 27, Gonzales announced his resignation as Attorney General, effective September 17.

In the next nine chapters, we examine in detail the circumstances surrounding each U.S. Attorney’s removal and our analysis of the reasons the Department proffered for each removal.

Footnotes

Sampson said the interviewing panel for U.S. Attorneys generally included himself, an Associate White House Counsel with responsibility for the particular geographic area the potential candidate was being considered for, a person from the Presidential Personnel Office, David Margolis, the Director of EOUSA, and the Department’s White House Liaison.
Miers was named by President Bush in November 2004 to succeed Alberto Gonzales as White House Counsel. Before becoming White House Counsel, Miers served in the Administration as Assistant to the President and Staff Secretary (2001-2003) and as Deputy Chief of Staff for Policy (2003-2004).
Sampson described to us his thinking on this subject as possibly derived from the management philosophy of Jack Welch, former General Electric CEO, that the bottom 10 percent of any organization should be changed periodically for the good of the whole.
The chart also listed several other districts in which U.S. Attorneys were going through various stages in the nomination process.
As noted below, Sampson said he came up with these 14 names based on his own “quick and dirty” review of U.S. Attorneys and said he intended that the names would be subjected to further vetting “down the road.” We did not investigate the circumstances of each U.S. Attorney who appeared on Sampson’s initial list, and we believe no conclusions can or should be reached about the performance of these U.S. Attorneys based on Sampson’s inclusion of their names on his list.
According to Sampson, he did not list Silsby because he considered her a “weak” U.S. Attorney but because she had never been nominated by the President and was serving as Interim U.S. Attorney through a court appointment. Attorney General Ashcroft had appointed her Interim U.S. Attorney in 2001 for a 120-day term, and she was appointed Interim U.S. Attorney by the federal district court upon the expiration of the 120-day appointment by the Attorney General. Silsby had served as Interim U.S. Attorney since then with the support of Maine’s two Republican Senators. However, the White House did not recommend her for the permanent position, and Sampson wanted to replace her with a Presidentially nominated and confirmed U.S. Attorney.
We discuss Heffelfinger’s resignation below in Section E.1. of this chapter. As to Biskupic, as part of our investigation we interviewed him to assess allegations that his prosecution of a local Democratic elected official played a role in Sampson’s subsequent deletion of his name from the removal list. Biskupic, who still serves as U.S. Attorney for the Eastern District of Wisconsin, told us that until the controversy about the removals of the other U.S. Attorneys arose, he had no idea that Sampson had ever characterized him as a “weak” U.S. Attorney or had recommended that he be removed. Biskupic told us that he did not believe Sampson included him on the first list for reasons related to any public corruption cases his office was prosecuting. Biskupic also said he had no contact with anyone at the Department about public corruption prosecutions and that his office did not discuss the cases with anyone at the Department. Sampson told us he did not know anything about public corruption cases in Biskupic’s district until after Sampson resigned from the Department. Sampson said he could not recall why he had included Biskupic on the initial list, but said he vaguely recalled having a conversation with Deputy Attorney General McNulty much later in the process in which McNulty noted that Biskupic should not be recommended for removal because the Department did not want to arouse the ire of Wisconsin Congressman James Sensenbrenner. However, as we discuss below, we determined that Biskupic’s name was removed from the list sometime before January 2006, and McNulty did not become aware of the proposal to remove U.S. Attorneys until late October 2006. Accordingly, even if Sampson had such a conversation with McNulty, it could not have formed the basis for Sampson taking Biskupic’s name off the removal list much earlier in the year.
Comey said he was concerned about Ryan’s management of his office and had concerns about Lampton’s judgment and behavior concerning a case Comey oversaw while he was U.S. Attorney. In addition, Comey expressed concern about O’Meilia’s judgment regarding certain office expenditures during a time of budget difficulties. Finally, Comey said he was concerned that Heffelfinger was overly focused on Indian affairs issues.
Although some of the approximately eight additional names mentioned by Margolis appeared on subsequent lists prepared by Sampson, none of them were among the final group of nine U.S. Attorneys who were asked to resign in 2006.
Comey left the Department in mid-August 2005.
Project Safe Neighborhoods is a Department initiative that involves collaborative efforts by federal, state, and local law enforcement agencies, prosecutors, and communities to prevent and deter gun violence.
We were unable to determine why Sampson listed Wagoner other than that he believed she was a weak U.S. Attorney.
Leone became the First Assistant U.S. Attorney in Colorado in 2001 and was appointed Interim U.S. Attorney in December 2004. He served as Interim U.S. Attorney until the confirmation of Troy Eid in August 2006. We found no evidence that Leone’s replacement by a Presidentially appointed U.S. Attorney was unusual or improper.
Most of the replacement candidates for the other five districts were current or former political appointees in the Department. Other than Griffin, only one suggested replacement on this list, John Wood, currently the U.S. Attorney for the Western District of Missouri, was ultimately nominated and confirmed.
A Special EARS evaluation was commissioned by EOUSA in the fall of 2006 (at Margolis’s urging) based on the results of the regular EARS evaluation in March 2006 and on numerous complaints made about Ryan’s performance as U.S. Attorney. The special evaluation was intended to be an evaluation not only of the USAO but also of Ryan.
Before leaving office, Heffelfinger prepared a management plan that called for elevating an experienced AUSA within the office to the position of Acting U.S. Attorney. His plan was rejected in favor of appointing Rachel Paulose, a former Minnesota AUSA and then Counsel to the Deputy Attorney General, to be Interim U.S. Attorney. Paulose was later nominated as U.S. Attorney and confirmed by the Senate on December 9, 2006. After significant controversy arose regarding her management of the office, she was transferred back to a position at Main Justice in November 2007.
As we discuss later in this report, Ryan was the only U.S. Attorney of the nine to be evaluated by a Special EARS team. No other U.S. Attorney removed as a result of the process initiated by Sampson was accorded such treatment before being recommended for removal.
Brand told us that she and Sampson did not seriously discuss whether Brand wanted to become U.S. Attorney until sometime in the fall of 2006. Brand said that she is from Michigan, but she was not interested in moving at the time, and she was not lobbying to become U.S. Attorney. According to Sampson, he and Deputy White House Counsel Kelley discussed Brand’s appointment in May 2006, but Brand did not show much interest at the time, and by the time the removal plan was underway Brand indicated she was not interested in becoming U.S. Attorney in Michigan for personal reasons.
As more fully described in Chapter Five of this report, Griffin had worked for the Republican National Committee through the 2004 election, and then became Deputy Director of the Office of Political Affairs in the White House. In 2004, he was one of the candidates considered for the U.S. Attorney position in the Western District of Arkansas for which Robert Balfe was ultimately chosen.
We also found evidence that the White House asked about replacing Debra Yang, the U.S. Attorney in the Middle District of California. According to Sampson, Miers had asked him whether Yang should be replaced because she had rejected an overture to serve on the Ninth Circuit. Sampson testified that he had informed Miers that Yang was a “strong” U.S. Attorney who should remain in place. Sampson said that Miers accepted his explanation and did not raise the subject again. Yang resigned of her own volition in 2006 to take a job with a private law firm.
On December 15, 2006, Cummins announced his resignation and left office on December 20, 2006.
Sampson addressed Cummins’s situation in a separate section of his e-mail under the heading “USAs in the Process of Being Pushed Out.”
As also noted in Chapter Two, in June 2007 in the wake of the controversy surrounding the U.S. Attorney removals and allegations that the Attorney General’s Interim appointment power was being used to circumvent the Senate confirmation process, legislation was enacted repealing the March 2006 amendment and restoring the previous provision granting the local federal district court authority over Interim U.S. Attorney appointments upon the expiration of the 120-day appointment by the Attorney General.
As noted above, Goodling had previously recommended to Sampson in January 2006 that Wagoner’s name be taken off his list of proposed U.S. Attorney removals. Sampson did so then at Goodling’s request and did so again in September 2006.
In his interview with us, Sampson said he could not recall why O’Meilia’s name came off the list.
McNulty told us that he did not recall discussing the removal issue with Margolis but said he “believed” at the time that Margolis was “aware” of the issue, and McNulty said he made the “assumption” that Sampson had consulted him.
The statutory provision, 5 U.S.C. § 3345(a)(1), allows the President to appoint the First Assistant United States Attorney as Acting U.S. Attorney for a 210-day period or until a nominee is confirmed, whichever is sooner.
In the Department’s after-the-fact justifications for Bogden’s removal, which we discuss below, Las Vegas was characterized as an important district with special challenges because it was a target for terrorism and had significant levels of violent crime and organized crime.
Step 2 of the plan provided talking points for Battle to use when informing the U.S. Attorneys that they were expected to resign:
- What are your plans with regard to continued service as U.S. Attorney?
- The Administration is grateful for your service as U.S. Attorney but has determined to give someone else the opportunity to serve as U.S. Attorney in your district for the final two years of the Administration.
- We will work with you to make sure there is a smooth transition, but intend to have a new Acting or Interim U.S. Attorney in place by January 31, 2007.
Step 3 provided that if the U.S. Attorneys questioned the decision and wanted to know who decided, Battle’s response was to be: “The Administration made the determination to seek the resignations (not any specific person at the White House or the Department of Justice.)” If asked “why me,” the response was: “The Administration is grateful for your service, but wants to give someone else a chance to serve in your district.” If the U.S. Attorney said that s/he needed more time, the response was to be: “The decision is to have a new Acting or Interim U.S. Attorney in place by January 31, 2007 (granting “extensions” will hinder the process of getting a new U.S. Attorney in place and giving that person the opportunity to serve for a full two years.)”
This matter is discussed in detail in Chapter Five.
As noted above, Goodling refused to be interviewed by us.
In a January 31, 2007, letter responding to Senator Pryor signed by Richard Hertling, Acting Assistant Attorney General for the Office of Legislative Affairs, the Department wrote that it was committed to having a Presidentially appointed, Senate-confirmed U.S. Attorney in every district. The Department denied that the Administration sought to avoid the Senate confirmation process, and said that Griffin was chosen to serve as Interim U.S. Attorney because of his qualifications, not because the First Assistant was on maternity leave. The Department’s letter did not address Senator Pryor’s assertion that the Administration had forced Cummins to resign so that Griffin could be appointed.
Sampson said that Cohen pressed him on the total number of U.S. Attorneys who were removed. Sampson assured him that the number was seven, plus Cummins. It was revealed during subsequent congressional hearings that Todd Graves was also asked to resign in January 2006 under circumstances similar to the other eight U.S. Attorneys.
Feinstein included Texas by mistake.
Elston’s conversation with Ryan’s First Assistant is reflected in a January 18, 2007, e-mail Elston sent to Sampson, Moschella, Goodling, Mercer, and McNulty. In that e-mail, Elston stated that he gave the First Assistant his “talkers for McKay and Charlton and asked her to convey them to Kevin [Ryan].” Elston also stated that the First Assistant told him that Ryan was not returning phone calls and was trying to “stay out of this.”
In their written statements to the House Judiciary Subcommittee following their testimony on March 6, 2007, both Charlton and McKay stated that they felt that Elston was attempting to persuade them to remain silent about their dismissal.
McNulty’s written statement to the Senate Judiciary Committee focused on reassuring the Committee that the Department did not intend to bypass the Senate confirmation process when it appointed Interim U.S. Attorneys under 28 U.S.C. § 546. The written statement also touched on the removals, noting that U.S. Attorneys serve at the pleasure of the President and can be removed “for any reason or for no reason.” The statement declared that the Department was committed to having “the best possible person” installed as U.S. Attorney in every district. The statement also stressed that U.S. Attorneys were never removed or encouraged to resign in an effort to retaliate for, or to interfere with or influence, a particular investigation, criminal prosecution, or civil case.
In an e-mail exchange dated March 26, 2007, between McNulty and Scolinos describing his February 6 testimony and the preparation sessions that preceded it, McNulty wrote, “Kyle was in full agreement with my answers . . . we all thought performance was a safe word.”
According to both McNulty and Goodling, sometime during the summer of 2006, Goodling had briefed him about Griffin replacing Cummins as U.S. Attorney.
Sampson’s and Gonzales’s statements on this point are inconsistent, however. When we asked Gonzales about Cummins, he told us that he believed Sampson had corrected his original impression and told him that Cummins was not removed for performance reasons. However, as we note in Chapter Five, Sampson was the source for the notion that Cummins was removed because he was an underperformer.
As we discuss in Chapter Seven, Bogden said that Battle told him on December 7 only that U.S. Attorneys serve at the pleasure of the President and it was time to step down; Mercer told him on December 8 that the Republicans had a short, 2-year window and wanted to take advantage of it by getting future Republican Party candidates on board as U.S. Attorneys; and McNulty told him that neither his performance nor the performance of his office entered into the equation.
Goodling, the only person other than Sampson involved in the preparation session who knew the extent and the history of the White House’s involvement in the U.S. Attorney removals initiative, did not discuss the issue in her immunized testimony before the House Judiciary Committee beyond her opening statement that she became aware of the initiative in 2005. Goodling also stated in her testimony that she believed McNulty had greater knowledge than he expressed in his testimony about the history of the White House’s involvement because she had briefed him about Griffin during the summer of 2006. However, on June 21, 2007, in testimony before the House Subcommittee on the Judiciary, McNulty said that while he was aware in the summer of 2006 that Griffin was going to replace Cummins, he was not aware that Griffin came to the Department’s attention through the White House. McNulty stated that while he had known for months that “Cummins was asked to move over so that Mr. Griffin would have a chance . . . ” he did not know exactly how Griffin came to the Department’s attention, and he also noted that in Goodling’s testimony before Congress, she said she was not particularly aware of how Griffin came to the Department’s attention. McNulty said, “I just didn’t know the specifics of how he came to be recommended to us. We later learned that Ms. Miers contacted Kyle Sampson, and that’s the – the way.” As previously noted, Goodling declined our request for an interview, so we were not able to question her concerning McNulty’s statement about his knowledge of the White House’s involvement in the removal of the U.S. Attorneys.
As discussed in more detail in Chapter Six of this report concerning Iglesias’s removal, McNulty told us he purposely did not mention specific complaints from Senator Domenici during the briefing because he did not want to put the Senator “in a bad light or a difficult position.”
E-mail records show that McNulty did not mention Chiara by name because she had not yet announced her resignation publicly and he was trying to find a position for her in the Department.
At a subsequent congressional hearing, Cummins testified that this conversation was a congenial phone call and he did not directly characterize Elston’s remarks as a threat. Rather, he said “[i]t might have been a threat, it might have been a warning; it might have been an observation, a prediction . . . [or] friendly advice.”
Department officials who received a draft of the letter for review included McNulty, Elston, Goodling, Hertling, Moschella, and Scolinos. Sampson asked Goodling to verify certain factual assertions he had made concerning Griffin’s appointment.
At the time, Oprison had been an Associate White House Counsel for 4 months and lacked first-hand knowledge of the events at issue. In an e-mail to Sampson on February 23, 2007, Oprison attached the letter with “slight revisions,” along with the message that “Fred [Fielding], as I, want to ensure that it is absolutely consistent with the facts and that it does not add to the controversy surrounding this issue.”
On March 28, 2007, the Department wrote another letter informing Senators Leahy and Schumer that its review of documents revealed that representations in Hertling’s February 23 letter were inaccurate.
According to Elston, he had “many” conversations with Chiara in January and February because she was seeking additional time before she resigned.
See Marisa Taylor, McClatchy Newspapers, U.S. Attorney Worried ‘Gloves Would Come Off’ Over Criticism of Ouster, March 6, 2007.
According to Elston, he was invited but did not attend these preparation sessions.
Moschella asked Goodling to re-format the chart she had developed for McNulty detailing the reasons for each U.S. Attorney’s removal to make it more user-friendly.
Of that group, only Sampson and Goodling had full knowledge at the time concerning the removals and the White House’s involvement in the process.
Several days prior to his hearing, Moschella provided a closed, more detailed briefing for members and staff of the House Subcommittee, similar to the briefing McNulty had given the Senate Judiciary Committee. According to Moschella, the briefing concluded before he had discussed all of the U.S. Attorneys, and he finished the briefing by telephone shortly before his public testimony.
Sampson told congressional investigators that the language the Attorney General wanted to use was something to the effect of “we thought we could do better,” or “we thought a change could improve the office.”
According to Margolis, Goodling came into his office late on March 8 extremely distraught over the revelation of Sampson’s documents, and asked whether Margolis had spoken to Sampson. Margolis also said that Goodling implied that her career in the Department was over, but she did not state specifically what she had done.
It is unclear how the earlier e-mails would have helped prove this point because the Attorney General’s appointment authority was not signed into law until March 2006. Moreover, the January 6, 2006, e-mail already listed potential replacements for several of the U.S. Attorneys.