- Graves’s Background
- The EARS Evaluation of Graves’s Office
- Graves’s Status on the Removal lists
- Reasons Proffered for Graves’s Removal
- Chronology of Events Related to Graves’s Removal
- The Misconduct Allegations
- Allegations Concerning Graves’s Wife
- Anonymous Allegations Regarding Graves
- Complaints About Graves
- Senator Bond’s Congressional Staff Complain About Graves to White House Staff
- The Department Learns About Bond’s Staff’s Complaints
- Graves is Told to Resign
- Department Comments About Graves’s Resignation
Before and during the congressional hearings that followed the December 7, 2006, removals of U.S. Attorneys, the Department represented to Congress that seven U.S. Attorneys, plus Bud Cummins, were the only U.S. Attorneys removed as a result of the process Kyle Sampson initiated in 2005 to identify and remove “underperforming” U.S. Attorneys. In his January 12, 2007, briefing on Capitol Hill, Sampson assured staff for Senate Judiciary Committee members Senators Patrick Leahy and Dianne Feinstein that those eight were the only U.S. Attorneys told to resign in 2006. Until May 2007, Department witnesses who appeared before Congress on the matter testified about the group of eight, and no one mentioned that Todd Graves of the Western District of Missouri had been told to resign in January 2006.
On May 9, 2007, however, Graves publicly confirmed that he had been told to resign in January 2006. Although the Department did not initially identify Graves as one of the U.S. Attorneys who was told to resign as a result of the process Sampson initiated in 2005, we concluded that Graves should be considered part of that group. Graves was targeted for removal on Sampson’s second list, issued on January 9, 2006, and the script Battle followed in asking Graves to resign was identical to the one Battle followed with the other eight U.S. Attorneys.
In our investigation into the circumstances of Graves’s removal, we were hampered by several factors: Sampson’s and Goodling’s stated failures of recollection as to the reason for Graves’s removal; Goodling’s refusal to cooperate with our investigation; the lack of cooperation by former White House Counsel Harriet Miers and members of her staff, especially former Associate White House Counsel Richard Klingler; and the absence of any documentation memorializing the reasons for Graves’s removal. Despite these impediments, we were able to reconstruct much of the circumstances underlying Graves’s removal, which we discuss below. In this chapter, we also analyze the Department’s stated reasons for requiring Graves’s resignation.
Graves graduated from the University of Virginia School of Law in 1991 with a J.D. and a Master’s degree in Public Administration. He began his legal career in 1991 as an Assistant Attorney General for the state of Missouri. Between 1992 and 1994, Graves worked for a law firm in Missouri. In 1994 he was elected Platte County Prosecuting Attorney and was reelected in 1998. He served in that position until he became U.S. Attorney.
Graves’s nomination as the U.S. Attorney for the Western District of Missouri was sponsored by Missouri Senator Christopher S. “Kit” Bond. On July 30, 2001, the White House announced its intent to nominate Graves. While the nomination was pending Senate approval, Graves was appointed as Interim U.S. Attorney on September 17, 2001. On October 11, he was confirmed by the Senate as U.S. Attorney.
In December 2001, Graves was appointed co-chair of the Child Exploitation Subcommittee of the Attorney General’s Advisory Committee. His 4-year term as U.S. Attorney expired on October 11, 2005.
Graves’s office underwent an Evaluation and Review Staff (EARS) evaluation in early March 2002, a few months into his tenure. The 2002 report noted that Graves was well regarded and respected by community leaders, agency personnel, and a majority of the federal judges in the district. The report stated that “the perception of the USAO staff as to his performance is positive, even in this early stage of his tenure.” The office was not scheduled for another EARS evaluation until September 2006, which was several months after Graves was removed.
On the first list of U.S. Attorneys Sampson sent to the White House on March 2, 2005, Graves was one of many U.S. Attorneys included by Sampson in the category of those who had not distinguished themselves either positively or negatively. However, on the second list Sampson sent to Miers on January 9, 2006, Graves was one of seven U.S. Attorneys Sampson suggested for removal.
As discussed in Chapter Three, less than 2 weeks later, on January 19, Sampson e-mailed Battle, asking him to call when he had a few minutes to discuss Graves. Shortly thereafter, Goodling called Battle with instructions to call Graves and seek his resignation. Battle was instructed 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.
Battle placed the call on January 24. Graves said that when he received the call, he was stunned and shocked. Graves complied with the direction to resign, and on March 10, 2006, publicly announced his resignation, effective March 24.
In her immunized testimony before the House Judiciary Committee on May 23, 2007, Goodling stated that she had “conflicting memories” about the circumstances that led to the request for Graves’s resignation. Goodling said she thought that Graves’s resignation was related to the “fact that he was under investigation by the Inspector General” at the time. Similarly, Sampson stated to congressional investigators, and initially to us, that there was “some controversy around Graves” that Sampson said he associated with an OPR or OIG investigation. However, Sampson told us that he could not “really remember” why Graves was placed on the January 9 list or why he was asked to resign 2 weeks later. Sampson also said he did not recall playing any role in asking for Graves’s resignation. Even after reviewing his January 19 e-mail asking Battle to call him about Graves, Sampson said that all he remembered about Graves’s resignation was Goodling coming into his office and saying, “Graves has to go.” Sampson stated that, based on what Goodling said, his “perception” was that Associate Deputy Attorney General David Margolis had made that determination as a result of an OPR or OIG investigation.70
Margolis told us, however, that he was not consulted about Graves’s removal, and he did not make any determination or recommendation to remove Graves. Moreover, as discussed below, we determined that Graves was not asked to resign based on any misconduct allegations. Rather, Graves faced opposition from the staff of his home-state Senator, Senator Bond, which we concluded likely led to his removal.71 We describe and analyze these issues below.
In 2005, two allegations of misconduct were made against Graves. The first, in March 2005 from the Executive Director of the Missouri Democratic Party, related to Graves’s wife. The second, in October 2005 from an anonymous source, related to various actions by Graves. Both complaints were investigated, and neither resulted in a misconduct finding against Graves.
In February 2005, newly elected Missouri Governor Matt Blunt’s Administration awarded a no-bid contract to Graves’s wife to manage a motor vehicle license office in a heavily populated area near Kansas City. In Missouri, license agents are independent contractors who, under contract with the state’s Department of Revenue, receive a portion of the fees collected by the license office.
In a letter dated March 1, 2005, Cory Dillon, the Executive Director of the Missouri Democratic Party, urged Attorney General Gonzales to remove Graves from office based on his wife’s acceptance of the no-bid contract. The letter alleged that in addition to Graves’s wife, her brother and two staff members of U.S. Congressman Sam Graves (U.S. Attorney Graves’s brother) were awarded similar license fee office contracts.
On March 2, 2005, the Kansas City Star reported on Dillon’s letter to Gonzales. The next day, the newspaper ran an editorial criticizing the contract and opining that U.S. Attorney Graves now had a “clear conflict of interest” if any investigation of the Governor’s Administration should arise.
After receiving an inquiry from the White House about this issue, Sampson referred the matter to Chuck Rosenberg, who at the time was the Chief of Staff to the Deputy Attorney General. According to Sampson’s March 16, 2005, e-mail to Rosenberg, the White House had asked “(1) whether we have looked into the allegations made against Graves . . . and (2) what our conclusion is, i.e., whether we are comfortable that he doesn’t have any legal or ethical issues.”
The matter was thereafter referred by Associate Deputy Attorney General Margolis to the Executive Office for U.S. Attorneys (EOUSA), which in turn referred the matter to the OIG. After reviewing the matter and discussing the issue with Margolis, the OIG decided not to open an investigation based on the absence of any pending investigations that presented an actual or apparent conflict of interest for Graves.
In a letter dated April 8, 2005, Margolis informed Graves that “[a]fter reviewing the substance of Mr. Dillon’s letter, consulting with OIG, and considering additional information, I have determined that there is no existing conflict of interest that requires further action at this time.” Margolis further advised Graves that he should be mindful of the Department’s “procedures by which you should seek recusal from any existing or future matter in which a conflict of interest exists.” Margolis pointed out that “[l]ike all United States Attorneys, you are expected to adhere to all legal and ethical obligations in carrying out your duties.”
In his interview, Graves told us that he had brought the Dillon complaint to the attention of EOUSA Director Mary Beth Buchanan after he learned about it on the Internet. According to Graves, he called EOUSA because he believed he had done nothing wrong and wanted to respond publicly to what he viewed as Dillon’s false allegations that he had a conflict of interest. Graves also told us that he later used Margolis’s letter in his public responses to demonstrate that he had not engaged in any impropriety in connection with his wife’s contract.
Graves stated that at no time did any Department official raise any question concerning the propriety of his wife’s contract or suggest that his wife’s contract placed his position as U.S. Attorney in jeopardy. Moreover, Graves said that no Department or Administration official ever raised with him any concerns about the quality of his performance as U.S. Attorney.
However, William Mercer, the Principal Assistant Deputy Attorney General at the time, told us that he recalled Sampson voicing at some point “real concerns” about Graves’s wife’s contract because it did not reflect well on the U.S. Attorney’s Office. Margolis told us that he would not have been surprised if the license fee contract issue “played a huge role” in Sampson’s decision to place Graves on the U.S. Attorney removal list. As Margolis recalled it, Sampson was “really hot about it” because Sampson thought the arrangement made the Department and the Administration “look bad,” despite Margolis’s finding that Graves did not commit any misconduct.72 However, Margolis could only speculate as to Sampson’s thinking because he was never consulted on the decision to remove Graves and was not even aware of the resignation request until it was made public in May 2007.
We found no expression of concern in Sampson’s March 17 e-mail to Rosenberg referring the Graves matter to him. When congressional investigators asked Sampson about Graves’s removal, he said he had no specific recollection of being involved in Graves’s removal. Sampson also said he could not recall discussing Graves’s removal with Gonzales, McNulty, or Margolis, who generally handled the removal of U.S. Attorneys who had committed misconduct. Sampson also did not express any consternation about the license fee contract matter to us during his interview, and he essentially disclaimed any responsibility for requesting Graves’s resignation.
In the fall of 2005, the OIG received an anonymous letter containing allegations that Graves had committed various acts of misconduct. Graves told us that he believed the source of the anonymous complaint was an employee that his office was seeking to terminate.
In late November 2005, the OIG opened an investigation into two of the allegations contained in the letter: (1) that Graves had attended a political fundraiser, an activity that would be prohibited by the Hatch Act and by Department policy, and (2) that Graves was driven to the fundraiser in a government car by a paralegal in the U.S. Attorney’s Office. The OIG referred the remaining allegations to EOUSA and to Margolis to determine whether further investigation was warranted by the Department or OPR.
In response, in early December 2005 OPR informed EOUSA that it would investigate an allegation in the anonymous letter that Graves had shared confidential information about an impending indictment with his brother, a private attorney, to assist him in advertising for potential class action victims of a defendant in a federal criminal case. In an e-mail dated December 19, 2005, Margolis informed Michael Elston, Chief of Staff to the Deputy Attorney General, and Mercer of the allegations the anonymous source had made against Graves, and noted that he intended to defer further investigation of the remaining allegations in the letter pending the conclusion of the OIG and OPR investigations.
As noted above, Graves’s name first appeared on Sampson’s January 9, 2006, list of U.S. Attorneys that the White House should consider replacing. On January 24, Graves was asked to resign, and on March 10, 2006, he announced his resignation, effective March 24.
However, at the time Graves was told to resign both the OIG and OPR investigations were ongoing, and both were eventually resolved in his favor, albeit after he had announced his resignation. In a report dated March 8, 2006, 6 weeks after Graves was told to resign, the OIG concluded that Graves did not commit misconduct. The OIG investigation found that Graves did not in fact attend a political fundraiser; rather, his appearance at the building where the fundraiser was held was confined to having his photograph taken with the Vice President after the event – a permissible activity for a U.S. Attorney.73 In May 2006, OPR closed its investigation after determining that Graves did not have a brother who was engaged in the private practice of law.
As described above, in their congressional testimony neither Sampson nor Goodling offered an explanation for why Graves was placed on Sampson’s January 9, 2006, removal list other than their vague recollection that the internal Department investigations involving Graves may have been the basis for his removal. Battle told us that he understood from Goodling that Graves’s removal was not related to any allegation of misconduct, but rather in order to make a change in the office.
During the course of our investigation, we found another factor that was most likely the reason for Graves’s removal.
In 2001, Missouri Senator Bond had sponsored Graves for the U.S. Attorney position, but we learned that support for Graves in Senator Bond’s office had waned by 2005. On at least two occasions in 2005, Jack Bartling, Senator Bond’s legal counsel, contacted the White House Counsel’s Office to request a change of the U.S. Attorney for the Western District of Missouri.
According to Bartling, he called Associate White House Counsel Grant Dixton several times to seek Graves’s removal. Bartling said his calls were not prompted by Senator Bond and described the matter as a “staff issue” handled by himself and Bond’s Chief of Staff. Bartling said that he did not discuss Graves’s situation or his calls to Dixton with Senator Bond. Bartling stated that Bond was the undisputed leader of the Republican congressional delegation in Missouri and it would have been beneath Bond to be involved in Graves’s removal.
Bartling told us that his calls to Dixton at the White House seeking Graves’s removal were instead prompted by discord between the in-state staffs of Senator Bond and U.S. Representative Sam Graves, a Missouri Republican congressman who was Todd Graves’s brother. According to Bartling, Congressman Graves’s operation “did not run business” the way the Bond operation tried to run business. Bartling said that Bond’s staff also wanted Todd Graves to try to rein in his brother, but Todd Graves did not do so.
Bartling said that at some point, possibly in a third call to the White House Counsel’s Office, he also raised the issue of Graves’s wife accepting a no-bid contract from Governor Blunt that paid considerably more than what the highest-paid state employees made. Bartling told us that he viewed that appointment as posing a conflict of interest for Graves as the chief federal law enforcement officer in the western part of the state, who might be called upon to investigate allegations against the Blunt Administration.
Dixton was the only person from the White House Counsel’s Office involved in the Graves matter who agreed to be interviewed by us, and he confirmed that Bartling called him about Graves. Dixton told us that Bartling called him in the spring of 2005 and expressed interest in changing the U.S. Attorney for the Western District of Missouri when Graves’s 4-year term expired in October 2005. Dixton stated that while he had no distinct recollection of doing so, he probably brought Bartling’s request to the attention of Sampson and Deputy White House Counsel William Kelley. However, Dixton said he recalled having only one conversation with Bartling, and he did not recall discussing the issue of Graves’s wife’s no-bid contract during that conversation.
In approximately August 2005, the responsibility in the White House Counsel’s Office for legal issues in the Eighth Circuit (which includes Missouri) was assumed by Associate White House Counsel Richard Klingler. We determined that based on the timing of the calls from Bartling, it is likely that at least Bartling’s final call raising the issue of Graves’s wife’s state contract to the White House Counsel’s Office was taken by Klingler rather than Dixton. Klingler, who now works at a private law firm, informed us through the White House Counsel’s Office that he declined to be interviewed in our investigation.
According to Bartling, by the summer of 2005 the concerns he expressed about Graves to the White House Counsel’s Office made their way to the Department. Bartling told us it was clear to him from his conversations with the White House Counsel’s Office that the matter had been “kicked over” to the Department of Justice. In addition, Bartling said that he had an interview with the Department in the fall of 2005 for a position in the Office of the Deputy Attorney General, and at some point during the interviewing process Elston asked Bartling if Senator Bond was still interested in changing the U.S. Attorney for the Western District.74 When we questioned Elston about this issue, he told us that he first learned that Graves had lost Bond’s support from Bond’s staff, not from someone in the Department.
Elston also told us he did not recall discussing with Bartling the reasons why Bond wanted to make a change in the U.S. Attorney position, but Elston said he had his own assumptions based on his familiarity with the discord between Bond Republicans and Graves Republicans in Missouri. Elston said he did not discuss his conversation with Bartling with McNulty or others in the Department because it did not occur to him to do so.
As previously noted, on December 19, 2005, Margolis had informed Elston and Mercer about the anonymous allegations made against Graves. We determined that in late December 2005, Bartling exchanged e-mails and phone calls with Elston concerning Graves. On December 22, 2005, Bartling informed Elston by e-mail that he had accepted a position with the Treasury Department starting in late January 2006. Bartling also suggested that the two talk after the first of the year about a “sensitive issue” involving Graves “that has to be handled the right way.” In reply, Elston asked Bartling if he was aware of the “most recent allegations” involving Graves, and Elston invited Bartling to call him “sooner rather than later.” According to Bartling, when he and Elston spoke later by telephone, Elston told him only that there were “ethics allegations” against Graves, but Elston did not go into specifics.75
When we asked Elston about this conversation with Bartling, he said that Bartling had told him previously that Senator Bond’s office had asked the White House to discreetly “make a change” in the Western District of Missouri, and Bartling called him in December 2005 to ask him to “keep his ear to the ground” to ensure that the Senator’s role in requesting White House action on Graves was not being disseminated within the Department. Elston stated that Bartling was not asking him to find out whether Graves was going to be removed. Elston said that, to the contrary, Bartling “was telling me that it was going to happen.” According to Elston, the “sensitive issue” mentioned in Bartling’s December 22 e-mail was Senator Bond’s role (through Bartling) in seeking Graves’s removal, and Bartling wanted Elston’s assistance to keep the Senator’s name from being linked to Graves’s anticipated ouster.76
According to Elston, he was not involved in the decision to seek Graves’s resignation. Elston stated that he did not discuss his communications with Bartling with Sampson, McNulty, or anyone else in the Department, or otherwise attempt to accelerate Graves’s removal. Elston said that any effort to expedite the matter “would have undermined [Bartling’s] principal purpose, which was for me to make sure that Senator Bond’s contact with the White House was kept confidential.”
During our interview with Graves, he confirmed the existence of “friction” between Senator Bond’s staff and the staff of Congressman Graves, but Graves stated that he was not party to it and did not want to be involved in it. Graves told us that in the fall of 2004 a member of Senator Bond’s staff called him and angrily insisted that Graves use his influence to persuade his brother to fire his brother’s Chief of Staff. According to Graves, when he declined to get involved, the Bond staffer informed him that “they could no longer protect [his] job.” Graves told us that he never discussed this call with his brother and did not report it to anyone in the Department. Graves told us that “if something like this could cost me a prosecutor’s job, they could have it.”
As described above, on January 24, 2006, EOUSA Director Battle, acting on instructions from Goodling, called Graves and told him to resign. Battle said he told Graves that the Administration had decided to give someone else a chance to serve; that his service was appreciated; that the decision was not based on any misconduct by him; and that he had served admirably and done a good job.
Graves told us that when Battle called him, Graves suspected that the decision was related to the call he had received from Bond’s staffer more than a year earlier. He said he asked Battle if he had a “senator problem.” In their first conversation, according to Graves, Battle “sort of acknowledged that maybe that was it,” but in a subsequent conversation Battle informed him that Senator Bond had “nothing to do with it.” Graves told us that he was ready to move on to the private sector at the time anyway, but he wanted to stay long enough to try a particular case and to have his federal retirement vest. He told us that the Department denied his request to remain as U.S. Attorney long enough to accomplish these objectives.
Graves told us he called Senator Bond’s Chief of Staff in Washington, who was fairly new at that job and was an old friend of Graves. According to Graves, the purpose of the call was two-fold: to find out if his removal was related to the in-state Chief of Staff’s call to him 18 months before and to request more time to try a pending murder case. Graves said the Washington Chief of Staff told him that the Department was claiming that Graves was removed because of poor performance. Graves said he responded that the Department had told him the “exact opposite” when he was told to resign and that he believed his removal was caused by Senator Bond’s in-state Chief of Staff. The Washington Chief of Staff said he would look into it. Graves said that when the Washington Chief of Staff called him back, he told Graves that Bond “went to bat” for him to extend his stay as U.S. Attorney, but the Department refused.
On January 24, 2006, Bartling, who by then had started his new job at Treasury, e-mailed Elston to inform him that Graves had called Senator Bond’s Washington Chief of Staff to say that he was told that Bond’s office wanted him out “because Bond wanted new blood in the post.” In the e-mail, Bartling asked who called Graves and “what happened to Plan B.” Both Bartling and Elston told us that they did not recall what Bartling’s reference to “Plan B” meant. Bartling said that it was his “guess” that Plan B referred to using the recent ethics allegations lodged against Graves as the basis for the Department’s removing Graves on its own initiative rather than attributing his removal to Senator Bond’s request that Graves be removed.
Elston told us he was never able to confirm that Graves was told that Bond wanted him removed, and Elston suspected, based on information he said he gleaned from Goodling and Klingler, that Graves “was just making a right-on guess” and had called the Senator’s office to try to confirm his suspicions that Bond was behind the request for his resignation.77
Aside from Sampson’s January 9, 2006, e-mail to Miers recommending that Graves and several other U.S. Attorneys be removed, we found no documentation memorializing the request for Graves’s resignation or the reasons for it. Sampson initially told us that he could not “really remember” why Graves was placed on the January 9 list or why he was asked to resign 2 weeks later. He said he did not recall playing any role in asking for Graves’s resignation. Even after reviewing his January 19 e-mail asking Battle to call him about Graves, Sampson said that all he remembered about Graves’s resignation was Goodling coming into his office and saying, “Graves has to go.” Sampson stated that, based on what Goodling said, his perception was that Margolis had made the determination that Graves should resign as a result of an OPR or OIG investigation
In Goodling’s testimony before the House Judiciary Committee in May 2007, she denied Sampson’s assertion that she handled the request for Graves’s resignation without Sampson’s guidance. Goodling said she recalled seeing Graves’s name on Sampson’s January 2006 removal list. She said she thought that Graves was one of nine U.S. Attorneys who had been asked to resign in 2006 until she heard Sampson refer to only eight U.S. Attorneys during a meeting with the Attorney General in January 2007. Moreover, Goodling stated that she did not recall instructing Battle to ask for Graves’s resignation. However, she said that if she had directed Battle to call Graves to request his resignation, “it would have been at Mr. Sampson’s request. I wouldn’t have had that kind of authority.”
Margolis also disputed Sampson’s supposition about Margolis’s role in Graves’s removal. Margolis is the career Department official responsible for the referral (typically to the OIG or OPR) of misconduct allegations lodged against U.S. Attorneys and other senior Department officials. Margolis told us that Graves was not the subject of a misconduct finding by either the OIG or OPR at the time and that he did not initiate a request for Graves’s resignation. Moreover, Margolis told us that neither Sampson nor Goodling consulted him on Graves’s removal and he knew nothing about it until after the circumstances surrounding Graves’s resignation were made public in the spring of 2007.
According to Margolis, when the Department has sought the resignation of a U.S. Attorney based on misconduct (usually upon completion of an OIG or OPR investigation resulting in a misconduct finding), the practice has been for Margolis to brief Sampson; for Sampson to inform the Attorney General and to call the White House Counsel’s Office to explain the contemplated action in order to ensure that the White House would be prepared to fire the U.S. Attorney in the event he declined to resign voluntarily; and then for Margolis to call the U.S. Attorney and request his resignation. Sampson testified that it was his “perception” that this process was followed in Graves’s case. However, Margolis was not involved in the process and neither briefed Sampson (or Goodling) on any alleged misconduct by Graves nor called Graves to request his resignation. Moreover, unlike the other Department requests for U.S. Attorney resignations during Sampson’s tenure – each of which Sampson recalled discussing with the White House Counsel’s Office – Sampson said he had no recollection of discussing the Graves matter with the White House Counsel’s Office. Instead, he surmised that the appropriate White House contacts were handled by Goodling.
McNulty, who was Acting Deputy Attorney General at the time, testified before the House Judiciary Subcommittee that he was not consulted about Graves’s removal. Former Attorney General Gonzales said that he would have expected a Department request for the resignation of a U.S. Attorney to have been cleared with him. Gonzales told us he “can’t imagine it didn’t happen.” He said, “I’m sure I was told and I don’t remember.” However, he stated that he had no recollection of being consulted about Graves’s removal.
During his congressional testimony, Sampson maintained that he had almost no memory of why he placed Graves on the January 9 list or why Graves was asked to resign 2 weeks later. When congressional investigators asked if Associate White House Counsel Klingler would have approved the dismissal of Graves, Sampson replied: “I don’t remember. I don’t remember specifically. The general practice would have been to check with the counsel, not an associate counsel.”
However, 5 months later, when we asked Sampson whether Klingler played a role in Graves’s removal, Sampson told us, “And that’s another thing that I do remember is that Klingler was the person that was responsible for this in the White House Counsel’s Office and that he was speaking with Senator Bond’s people.” Sampson also told us he understood that Senator Bond “was not happy with Graves and wanted him out.” This was the first time Sampson acknowledged the existence of pressure by Bond’s office playing any role in Graves’s resignation.
At the outset, we note that our analysis of Graves’s removal was hindered because we were unable to interview Associate White House Counsel Klingler, who our investigation revealed was closely involved with Senator Bond’s staff concerning Graves’s removal, and Goodling, who instructed Battle to call Graves after she had told Sampson “Graves has got to go.” In addition, the White House declined to provide any internal documents relating to the removal of the U.S. Attorneys, including Graves.
We found no evidence to support the claim that Graves was asked to resign because of OIG and OPR investigations into the allegations made against him. In fact, at the time Graves was asked to resign, the internal investigations of Graves were ongoing and no misconduct findings had been made. Moreover, neither McNulty nor Margolis – the two senior Department officials who normally would have been involved in a decision to remove a U.S. Attorney for misconduct – were consulted about Graves’s removal. Margolis said he was neither aware of the resignation request to Graves nor involved in the decision to seek it.
In addition, in his interview with us Sampson acknowledged that as a “general philosophy” he would await the completion of an OPR or OIG investigation before recommending the removal of a U.S. Attorney. Yet, the OIG and OPR investigations were ongoing at the time Battle was instructed to seek Graves’s resignation, and no misconduct had been substantiated. In fact, neither the OIG nor OPR ultimately concluded that Graves had committed misconduct. Moreover, if Sampson had recommended to the White House that Graves be removed based on the mere existence of the OIG and OPR investigations, such action would have been contrary to existing Department practice and his claimed “general philosophy.”
We do not believe, however, that the ongoing OPR and OIG investigations were the reason for Graves’s removal. Rather, the evidence indicates that Graves was instructed to resign because of complaints to the White House Counsel’s Office by Senator Bond’s staff. Although Sampson initially professed not to recall why Graves was removed, he eventually told us that Associate White House Counsel Klingler was “speaking with Senator Bond’s people,” and that “Bond was not happy with Graves and wanted him out.” Moreover, the decision to remove Graves came within a month after overtures from Bartling, Senator Bond’s legal counsel, to Elston to keep Senator Bond’s staff’s interest in removing Graves a secret. E-mail records also show that the day Battle called Graves and directed him to resign, Bartling expressed concern that Graves had learned from someone at the Department that Bond was responsible for his removal.
It remains unclear whether Sampson or Goodling was the conduit for pressure from Senator Bond’s staff or the White House for Graves’s removal. Sampson claimed little recollection about the matter, other than mentioning some controversy surrounding Graves and Goodling’s pronouncement that “Graves has to go.” Sampson suggested that Goodling essentially handled Graves’s resignation on her own initiative without his guidance or approval.
However, we find it difficult to credit that assertion in light of the fact that Sampson included Graves on the January 9, 2006, list of U.S. Attorneys to be removed that he sent to Miers, and that Sampson sent an e-mail to Battle on January 19 asking to discuss Graves. Shortly thereafter, on January 24, Battle called Graves and asked for his resignation. Moreover, in her appearance before Congress, Goodling disputed Sampson’s testimony about her role in forcing Graves to resign. Goodling testified that she would only have instructed Battle to request Graves’s resignation if Sampson had told her to do so. Goodling also claimed little recollection of Graves’s removal other than that there were misconduct investigations of him ongoing at the time. Goodling was not asked about the role the White House played in Graves’s removal, however, and we were not able to question Goodling about this (or any other) subject because she refused to be interviewed by us.
Regardless of whether Sampson or Goodling was responsible for Battle’s call to Graves, we believe the evidence indicates that the friction between Senator Bond’s staff and the staff of Graves’s brother, a Republican congressman from Missouri, precipitated Graves’s removal. Both Graves and Bartling told us that a member of Bond’s staff was irate that Graves refused to become involved in a dispute between his brother’s staff and Bond’s staff. We find it extremely troubling that the impetus for Graves’s removal as U.S. Attorney appears to have stemmed from U.S. Attorney Graves’s decision not to respond to a Bond staff member’s demand to get involved in personnel decisions in Representative Sam Graves’s congressional office.
We also believe that Sampson should have more closely scrutinized what Associate White House Counsel Klingler told him about why the White House decided to remove Graves. At the very least, Sampson should have discussed the basis for Graves’s removal with McNulty and Gonzales. We found no evidence that he did so. He also did not discuss the decision to remove Graves with Margolis, notwithstanding Sampson’s later claim that it was his “perception” that Margolis had made the determination that Graves should be removed as a result of an OPR or OIG investigation. In fact, that was not true.
In addition, at the time Sampson should have at the very least determined the reasons for directing Graves to resign to ensure that Graves’s removal was not based on improper political reasons. Moreover, no one discussed with Graves Senator Bond’s alleged concerns about him. It also appears that no one considered whether Graves was an effective U.S. Attorney before seeking his removal.
We believe the way the Department handled Graves’s removal was inappropriate. Although U.S. Attorneys serve at the pleasure of the President, it is the Department’s responsibility to protect its independence, and the independence of federal prosecutors, by ensuring that otherwise effective U.S. Attorneys are not removed for improper political reasons. The fact that the impetus for Graves’s removal appears to have stemmed from his decision not to intervene in a personnel dispute between Senator Bond’s staff and staff in Representative Sam Graves’s office is a disturbing commentary on the Department of Justice’s support for U.S. Attorneys.
We also believe that the process that resulted in Graves’s forced resignation was troubling. As noted above, although Sampson claimed that the pending OIG and OPR investigations may have played a role in the decision to remove Graves, no one consulted with Margolis, the Department official knowledgeable about the allegations and the investigations, to determine the status of those investigations.
Moreover, even after the removal no one in the Department accepted responsibility for the decision to remove Graves, with each senior official claiming that others must have made the decision. Just as troubling, according to Sampson’s and Gonzales’s recollection, it does not appear that anyone consulted with the Attorney General about the decision to tell a U.S. Attorney to resign. If true, that is a stunning example of lack of oversight or knowledge by the Attorney General about important personnel matters regarding a high-level Department official.
In sum, we believe the manner in which the Department handled Graves’s removal was inappropriate. Although U.S. Attorneys serve at the pleasure of the President and can be removed for no reason, the Department should ensure that otherwise effective U.S. Attorneys are not removed because of an improper reason. The evidence indicates that the likely reason for Graves’s removal was pressure from the office of Senator Bond. While U.S. Attorneys are often sponsored by their state Senators, when they take office they must make decisions without regard to partisan political ramifications. To allow members of Congress or their staff to obtain the removal of U.S. Attorneys for political reasons, as apparently occurred here, severely undermines the independence and non-partisan tradition of the Department of Justice.
Sampson did not discuss Graves during his testimony before the Senate Judiciary Committee on March 29, 2006. On July 10, 2006, during his third day of interviews with congressional staff, Sampson was asked about Graves and, as he did later in his interview with us, claimed a failure of recollection on the subject. He stated that he did not have a specific recollection of placing Graves’s name on the January 9, 2006, removal list, but said he knew that Graves was not part of the process that resulted in the resignations of the eight U.S. Attorneys who were the subject of the congressional investigation. Sampson said he believed that Graves’s resignation was handled by Margolis, and said he did not recall the January 19, 2006, e-mail he sent to Battle asking him to call to discuss Graves.
We asked Senator Bond for an interview regarding the circumstances surrounding Graves's removal and any communications between his office and officials in the Department and the White House. In a letter responding to our request, Senator Bond declined to be interviewed. He added in the letter that, to the best of his recollection, he did not communicate with anyone in the Administration concerning Graves's performance at any time during Graves’s tenure as U.S. Attorney and that he did not believe he personally had any additional information to contribute.
In a March 17, 2005, e-mail to Rosenberg, Margolis stated: “[I]t strikes me that this is more an indictment of the system out there than of the conduct of Graves, but I must admit that it looks like the days of boss tweed or the pendergrast machine.” In an e-mail to Elston and Mercer on December 19, 2005, Margolis called the conflict allegation “flimsy” and “not substantiated.”
The OIG report also found that Graves’s use of the government vehicle was not improper, although it did question the appropriateness of Graves asking a paralegal, whose duties did not include driving the U.S. Attorney, to drive him to the event. However, the report noted that the paralegal did not object, and the OIG did not find Graves’s actions to be misconduct. Rather, the report recommended that in the future Graves should avoid making such requests.
Elston had lived and worked in Missouri for 5 years after he graduated from law school in 1994. According to Bartling, he and Elston met for the first time in 2005 at a lunch arranged by a mutual friend at the Department.
Elston told us he was referring to the anonymous letter containing multiple allegations, some of which were referred to the OIG and OPR. Elston said his conversation with Bartling on the subject was brief and that he would not have gone into the details of the allegations themselves. When we raised with Elston our concern that he disclosed confidential information about misconduct allegations against Graves, he told us that “the gist” of what he was conveying to Bartling was not the substance or merits of the allegations, but rather that the investigation of those allegations would “delay the request to the White House to have [Graves] moved on.” Although we found no evidence that Elston disclosed the substance of the allegations to Bartling, the fact that an allegation was lodged with the Department was itself confidential information that Elston should not have disclosed.
Elston told us he checked with Goodling and Klingler only to learn what Graves had been told by Battle. Elston said he did not ask them the real reason for Graves’s removal because he thought he knew the answer. Elston said that he engaged in only limited efforts to ascertain what Graves was told because at the time he was being courted by Bond’s staff to replace Graves as U.S. Attorney for the Western District of Missouri. Elston said he ultimately withdrew his name from consideration for the U.S. Attorney position because he had only recently become the Deputy Attorney General’s Chief of Staff and thought it too soon to leave the post.