This chapter examines the removal of John McKay, the former United States Attorney for the Western District of Washington.

1. McKay’s Background

McKay graduated from Creighton University Law School in 1982. From 1982 to 1989, he worked in a private law firm in Seattle, Washington. He was named a White House Fellow in 1989 and served as a Special Assistant to FBI Director William Sessions until 1990. In 1990 McKay returned to private law practice in Seattle, where he remained until 1997 when he was named President of the Legal Services Corporation. He served in that position until he became the U.S. Attorney for the Western District of Washington. McKay was nominated on September 19, 2001, confirmed by the Senate on October 24, and sworn in as U.S. Attorney on October 30, 2001.

1. The EARS Evaluations of McKay’s Office

McKay’s office underwent two EARS evaluations, the first in May 2002 shortly after his arrival as the U.S. Attorney, and the second in March 2006. The 2002 evaluation was positive, stating that “McKay was setting appropriate goals and priorities and was doing an outstanding job furthering interagency cooperation.” The evaluation also stated that “McKay was well respected by his staff, the judiciary and all the law enforcement and civil agencies.”

The 2006 evaluation described McKay as an “effective, well-regarded, and capable leader” of the office and of the local law enforcement community. It noted that the office had established strategic goals to meet the priorities of the Department and the needs of the district. The only criticism concerned McKay’s office’s sentencing practices. The evaluation stated that the office lacked a uniform procedure for documenting the Criminal Chief’s approval of motions seeking downward departures in sentencing recommendations where defendants had provided substantial assistance to the government.

2. McKay’s Status on the Removal Lists

As discussed in Chapter Three, McKay’s name was included on Sampson’s first removal list which Sampson sent to White House Counsel Harriet Miers in March 2005. In August 2005 Deputy Attorney General Comey told Sampson that McKay had been “great on my information sharing project,” and Sampson took McKay’s name off the next two U.S. Attorney removal lists he sent to the White House in January and April 2006. However, McKay’s name reappeared on Sampson’s September 2006 list, and it remained there until McKay was told to resign on December 7, 2006.

2. Reasons Proffered for McKay’s Removal

A variety of reasons were proffered for McKay’s removal. McNulty stated in a closed briefing to members of the Senate Judiciary Committee in February 2007 that McKay was “enthusiastic but temperamental,” had made promises that the Department could not support regarding information sharing with other law enforcement agencies, and was resistant to direction from Department leadership. McNulty also stated that McKay’s performance was deficient because his district was not seeking to appeal sentences that fell below the sentencing guideline range.

The news media also reported allegations that McKay was removed because of his alleged failure to investigate claims of voter fraud in the wake of the 2004 Washington State governor’s race.

Sampson testified in March 2007 that he believed he included McKay’s name on the March 2005 list because McKay was overly aggressive in seeking resources to investigate the 2001 murder of an Assistant U.S. Attorney in McKay’s district. Sampson also stated that he placed McKay on the September 13, 2006, list because he perceived that the Deputy Attorney General’s office was not pleased with the way McKay had tried to force the Deputy’s hand on an information sharing initiative known as LInX.

Our investigation examined each of these alleged reasons for McKay’s removal. In the remainder of this chapter, we describe the facts related to these issues in chronological order and then provide our analysis regarding the reasons for McKay’s removal.

1. The Wales Murder Investigation

As noted above, Sampson testified that he may have identified McKay for removal on the March 2005 list after Department officials raised concerns about McKay’s actions in connection with the investigation of the October 11, 2001, murder of Seattle Assistant U.S. Attorney (AUSA) Thomas C. Wales. Sampson stated that he learned that there had been a conflict between McKay and former Deputy Attorney General Larry Thompson in which McKay demanded that Thompson take certain actions concerning the investigation of the murder.

McKay became U.S. Attorney for the Western District of Washington 6 weeks after the September 11 terrorist attacks and 3 weeks after the murder of AUSA Wales. Wales, who was a highly regarded and well liked AUSA, was at home in his basement office when someone shot and killed him through the basement window.

McKay said that when he became the U.S. Attorney, Wales’s office was still surrounded by yellow crime scene tape. Associate Deputy Attorney General David Margolis had recused McKay’s office from conducting the murder investigation, and according to McKay that decision was very controversial. McKay said that the office did not have confidence in the prosecutor Department officials had initially assigned to the case.

McKay said that shortly after he arrived as the U.S. Attorney in October 2001, he began to ask Deputy Attorney General Thompson and Thompson’s senior staff to replace the prosecutor on the Wales investigation. McKay acknowledged to us that he had several “tense conversations” with Principal Associate Deputy Attorney General Christopher Wray concerning this issue. According to McKay, his tenacity paid off and in March 2002 a more experienced prosecutor was assigned to oversee the Wales murder investigation.

McKay also told us that while he was not directly involved in the investigation of Wales’s murder, he pushed hard for the Department to commit more resources to the investigation. He said he felt it was his responsibility to be the conduit between the FBI’s Seattle Division and the Department concerning the allocation of resources. For example, McKay said that he felt obligated to raise with Department officials and the FBI issues such as the number of FBI agents assigned to the investigation and whether it was appropriate to assign agents from FBI Headquarters or take resources away from the FBI’s Seattle Division for the investigation. McKay said he thought he raised the issues in a professional manner, and he said that at no time did anyone share any concerns with him or otherwise indicate that they thought his conduct was inappropriate.

We found little contemporaneous documentation concerning McKay’s interaction with Department officials regarding the Wales investigation. However, from interviewing the individuals McKay communicated with in the Deputy Attorney General’s office concerning the matter, we believe that McKay accurately described his efforts to obtain more resources. Both Thompson and Wray described McKay as very aggressive about making certain that adequate resources were devoted to the investigation.

Thompson, who served as Deputy Attorney General until October 2003, said he did not recall any tension between himself and McKay. Thompson told us that he remembered people on his staff complaining about McKay’s constant pressure and demands for resources. Thompson acknowledged that on occasion he was irritated with the way McKay complained and pushed for more resources. Thompson emphasized that McKay did not do anything inappropriate. Thompson said that while he may have become annoyed with McKay’s persistence, he was also aggravated by the actions of a number of other U.S. Attorneys. As he described the situation, it was “not new in the annals of the Department of Justice [that] a DAG got aggravated with a U.S. Attorney.” Thompson said he never had any major problems with McKay, aside from some consternation at the way McKay was pushing the resource issue. However, Thompson said he did not remember discussing McKay with Sampson.

Wray, who served as Thompson’s Principal Associate Deputy Attorney General, told us that McKay communicated to the Office of the Deputy Attorney General his perception that the Department did not commit appropriate resources to the Wales murder investigation. Wray told us that EOUSA officials and officials in the Deputy Attorney General’s Office considered McKay to be “high maintenance,” not just about the Wales murder investigation, but also with respect to other issues.¹⁵⁷ Wray said that when McKay’s office had a stake in something, McKay approached the issues with a level of intensity that Wray said was not the norm among other U.S. Attorneys.

Wray told us that McKay’s behavior was discussed among people in the Deputy Attorney General’s Office informally in offhand conversation, but there was never any attempt to formally review McKay’s actions. Wray also stated that he did not recall ever discussing McKay’s conduct with Sampson. However, he said that he kept the Attorney General’s Office apprised of the events concerning the replacement of the prosecutor in the Wales murder investigation. Wray said that it would not have been unusual to have discussed his interactions with McKay informally with the Attorney General’s staff, but he said he had no specific recollection of doing so.

Margolis said he recalled that McKay was emotional in his interactions with the Department relating to the Wales murder investigation. However, Margolis told us that he gave McKay a lot of leeway because he was new to the Department and in a terrible situation. Margolis said that although he considered McKay to be extremely pushy, McKay’s conduct was understandable given the situation in which McKay found himself when he became U.S. Attorney, trying to lead the office in the aftermath of Wales’s murder and in the wake of the September 11 attacks when resources for matters other than terrorism investigations were scarce. Margolis also expressed skepticism to us that Sampson listed McKay for removal in his March 2005 because of any alleged confrontation with Thompson about the Wales investigation.

2. The Northwest LInX Project

Despite any differences McKay may have had with some officials in the Deputy Attorney General’s Office, all of the managers we interviewed agreed that McKay assumed a valuable leadership role in the Department’s law enforcement information sharing initiative. McKay told us he became very interested in information sharing issues early in his tenure as U.S. Attorney. According to McKay, in 2002-2003 he began working on an initiative with officials of the Naval Criminal Investigative Service (NCIS) to build a state, local, and federal law enforcement record sharing program in the Puget Sound area in Washington.

McKay told us that by early 2004, NCIS had agreed to fund what eventually became known as the Northwest Law Enforcement Information Exchange (LInX) Project.¹⁵⁸ McKay said he enlisted Deputy Attorney General Comey to support the initiative, reasoning that Comey would have the ability to direct Department law enforcement agencies to share their records with the project.

Comey told us that when McKay explained the LInX program, Comey thought it could be used as part of the OneDOJ strategy to get Department law enforcement agencies to share information among themselves and to share information with state and local law enforcement. During our interview, Comey described McKay as a “visionary” concerning information sharing, and said that he wholeheartedly supported McKay’s efforts.

In early 2005, Comey asked McKay to lead a pilot program in Seattle for entering DOJ law enforcement information into LInX. Comey said he knew the program would be controversial, even within the Department, because the law enforcement agencies did not openly share their information. In April 2005, Comey issued a memorandum to the Department’s law enforcement agency component heads designating McKay as the leader of the Northwest LInX pilot program in Seattle. The memorandum directed Department component heads to participate in the program and specified deadlines for uploading law enforcement records into the new system. Comey told us he issued this formal memorandum because he knew the federal agencies were not enthusiastic about the LInX program.

According to McKay, the Department’s law enforcement components did not fully comply with Comey’s directive. In addition, McKay said that once Comey announced his resignation in the spring of 2005, the Department component heads did not seem to consider the LInX project a priority, and there was no one at the Department who would be firm with the components about sharing their full text records in the system. McKay said that by the time McNulty became Deputy Attorney General in late 2005, McKay had begun to sense that the Department was less than enthusiastic about participating in the LInX project. We discuss this issue further below.

3. The Washington State Gubernatorial Election

Around the same time that McKay assumed leadership of the Northwest LInX pilot program in early 2005, McKay’s office also became involved in the controversy surrounding the Washington State governor’s election. Along with the general election for federal offices on November 2, 2004, voters in Washington also elected a governor. The results of the federal contests were certified soon after the election, but the state gubernatorial result was too close to call. On November 17, 2004, the initial count indicated that Dino Rossi, the Republican candidate, received more votes than Christine Gregoire, the Democratic candidate. Following a recount, Rossi led Gregoire by a smaller margin than the initial count. A second recount, conducted by hand, resulted in Gregoire leading by fewer than 200 votes.

1. McKay’s Office Initiates a Preliminary Inquiry

McKay told us that by the end of December 2004, an outside group had contacted him alleging that the recounts had revealed forged signatures on provisional ballot affidavits. Contemporaneous e-mails between McKay’s office and Craig Donsanto, the Director of the Election Crimes Branch of the Criminal Division’s Public Integrity Section, show that McKay’s office sought advice concerning whether it could open a federal investigation if the dispute involved only an election for state office. Donsanto advised McKay’s office against taking any action to investigate the allegations until the election authorities had certified the winner of the governor’s race and any ensuing election contests in state court had run their course.¹⁵⁹

McKay said he did not fully agree with that advice, and he directed that the FBI undertake a preliminary inquiry into the allegations of forged signatures on provisional ballot affidavits. An AUSA in McKay’s office said that the FBI interviewed the individual who raised the initial complaint but took no further steps at that time because the election results had not yet been certified. Rather, McKay’s office advised the complainant to provide any evidence to the local prosecutor because the dispute concerned the election of a state official. According to the AUSA, the election was certified on December 30, 2004, and immediately became the subject of state court litigation.

E-mails show that in early January 2005, McKay’s office met with the FBI and consulted with Department officials to discuss the next steps in the matter. According to McKay, everyone at the meeting agreed that the allegations of voter fraud in the state election, without more, did not at that point provide a sufficient predicate for opening a federal grand jury investigation. E-mails between Donsanto and the AUSA also show that Donsanto counseled the U.S. Attorney’s Office to refrain from being proactive and instead to collect facts and monitor the state court litigation. Donsanto told us that he gave this advice because he was concerned that the mere fact of an active federal investigation could be used as fodder in the state election contest.

On January 4, 2005, McKay drafted a public statement for use by the FBI and the U.S. Attorney’s Office in responding to questions concerning the controversy surrounding the governor’s race. The statement noted that federal law enforcement officials would receive and evaluate complaints of election fraud and voting rights abuses, but because the governor’s race was a state election matter, citizens with information concerning the election should also provide that information to state officials.

2. Telephone Call to McKay from Congressman Hastings’s Chief of Staff

The same day McKay issued the public statement, Ed Cassidy, the Chief of Staff to Washington State Republican Congressman Richard “Doc” Hastings, telephoned McKay to discuss the contested governor’s race. McKay said that Cassidy began asking him questions about the election and McKay’s potential investigation, and McKay said he responded with information consistent with his public statement. McKay said that Cassidy began to say, “You know John, it’s really important - ” when McKay interrupted him and said, “Ed, I’m sure you’re not about to start talking to me about the future direction of this case.” According to McKay, he took a very stern tone with Cassidy, and Cassidy quickly ended the call.¹⁶⁰

McKay said he immediately discussed the call with the First Assistant U.S. Attorney and the Criminal Chief, who both said that McKay had handled the call appropriately. McKay said that they decided that he was not required to report the call to the Department because Cassidy did not cross the line and demand that McKay open an investigation.¹⁶¹

Cassidy told us that he did not place the call to McKay at the behest of Congressman Hastings. Rather, Cassidy said that after Rossi had lost the third recount, Hastings’s constituents and state Republican Party officials expressed concern and outrage over the election to Hastings’s office. Cassidy said that as Hastings’s Chief of Staff he was concerned that Hastings not make inappropriate public statements if in fact there was an ongoing federal investigation into the election. Cassidy said he called McKay because he did not want Hastings to make “intemperate remarks” when confronted with questions concerning the election.

Cassidy said he explained to McKay his concerns and said that it would be helpful for him to know whether there was an open federal investigation in order to determine how Hastings should respond to questions. Cassidy said McKay provided him with the publicly available information that the U.S. Attorney’s Office and the FBI were receiving and evaluating complaints. Cassidy said that when he called McKay he was confident that McKay would know what the appropriate boundaries were and would ensure that the conversation did not stray beyond them.

Cassidy said that he asked McKay whether it was likely that there would be a federal investigation based upon the complaints they were receiving, and that McKay responded, “I hope you’re not asking me to tell you something that I can’t tell you.” Cassidy said he told McKay he was not and he ended the call quickly. Cassidy also said there was nothing difficult or strained about the conversation, and he had no reason to believe that McKay thought the call was inappropriate at the time. Cassidy said he did not recall discussing the conversation with Congressman Hastings or otherwise having any conversations with anyone about his call to McKay.

Congressman Hastings told us he did not know how it happened that Cassidy placed the call to McKay. He said he did not remember telling Cassidy to call McKay, and he said he could not recall whether Cassidy told him he had done so. Hastings said that he may have also received constituent complaints about the election, and that concerns about voter fraud were a frequent topic of conversation in his district because of the controversy concerning the recounts. Hastings also told us that he believed that the controversy over the election was a state rather than a federal matter. Hastings also said that he never discussed McKay’s performance as U.S. Attorney with anyone at the White House or at the Department of Justice. When we asked whether Hastings had any misgivings about the way McKay handled the allegations about the election, Hastings said, “I never thought anything about it.” Hastings added that he had no misgivings about McKay.

As part of his response to the March 2007 disclosure that his Chief of Staff had telephoned McKay to discuss voter fraud matters in early 2005, Hastings disclosed that the head of the association that supplied information concerning allegedly forged signatures on provisional ballot affidavits had written a letter in July 2005 urging that Hastings tell the White House to replace McKay for failing to investigate the 2004 governor’s race. Cassidy told us that Hastings’s office did not respond to the letter. Congressman Hastings also told us that he would not have called the White House to complain about McKay because he generally did not get involved in personnel matters in the Executive Branch. In addition, none of the White House officials we interviewed said they had any recollection of any such call from Hastings.¹⁶²

3. Complaints About McKay’s Handling of Voter Fraud Allegations

By the end of January 2005, McKay had begun receiving complaints from various individuals and groups about the U.S. Attorney’s Office’s failure to investigate alleged voter fraud in the 2004 governor’s race. According to e-mails sent to McKay at the time, political groups forwarded to McKay news articles about the election and demanded to know why his office was not investigating the allegations. Consistent with his public statement in early January 2005, McKay responded that the FBI would consider information about voter fraud in the gubernatorial election, but it was generally a state rather than a federal matter.

According to e-mail and other documents written at the time, throughout January and February 2005 McKay consulted with experts in his office on election fraud and directed the FBI to closely examine the state court litigation. McKay also sought assurance from the AUSAs assigned to election fraud matters and from the Department that there was no basis for federal jurisdiction over the allegations of voter fraud.

According to FBI documents, in a letter dated April 28, 2005, an outside political group supplied evidence allegedly supporting its theory that provisional ballot affidavits had been forged. An AUSA in McKay’s office who reviewed the evidence told us that he concluded that even if the affidavits had been forged, there was still no basis for federal jurisdiction over the alleged conduct. The AUSA said that the federal issues on the ballot were not part of the ongoing litigation, and the conduct affecting the absentee ballots was not considered state action because it was allegedly undertaken by a political party rather than a government entity.¹⁶³

As noted above, Sampson identified McKay for removal on the first list he sent to the White House on March 2, 2005. Comey told us he had met with Sampson on February 28, 2005, shortly after Sampson became Deputy Chief of Staff to Attorney General Gonzales, to discuss two issues, one of which was Comey’s assessment of the strongest and weakest U.S. Attorneys. Comey said he did not recall any mention of McKay or of the Washington State governor’s race during that conversation.

Beginning in April 2005 and continuing throughout 2006, McKay received a steady stream of complaints concerning the perceived inaction of the U.S. Attorney’s Office in investigating voter fraud complaints. Several complaints about McKay were also sent to Department officials. Sampson told congressional investigators he did not recall seeing any letters to Department officials complaining about McKay’s purported refusal to open an investigation into the voter fraud allegations during the time Sampson served in the Attorney General’s Office.

The trial in the state court election contest began on May 23, 2005. The court dismissed the action on June 6, 2005, finding that there was no evidence that fraudulent conduct had influenced the election outcome.

According to his contemporaneous e-mail and other documents we reviewed, McKay directed his AUSAs to closely monitor the state court litigation and follow up with the petitioners’ investigators in order to determine whether there was a basis for federal involvement once the state process had concluded. McKay directed the AUSAs to monitor the petitioners’ argument that Democrats had stuffed ballot boxes and said, “If they have evidence of these new claims, we will need to see it immediately.” One of the AUSAs involved in the review said that when he asked the petitioners’ investigators whether they had any direct evidence of fraud beyond what was presented at the state court trial, they told him they had no proof of anyone stuffing a ballot box. The petitioners’ investigators also said they did not pursue the forged signatures issue because they did not believe the handwriting analysis was reliable and they said they had no specific evidence of anyone stealing votes.

In March 2006, the Department officially closed the matter.

4. Statements of Department Officials

We were unable to determine exactly how the allegation that McKay was put on the removal list for his alleged failure to prosecute voter fraud first arose.¹⁶⁴ When we asked Sampson whether he included McKay on his first list in March 2005 because of complaints about McKay’s handling of voter fraud matters, Sampson told us that he did not believe he did so, and he also said he did not remember the issue being connected with McKay being asked to resign. Sampson told us that at some point he learned that people were critical of McKay for not getting into the middle of the controversy over the 2004 Washington State governor’s race, but said he could not remember when he learned that.

Both Gonzales and McNulty said that they did not recall hearing any criticism or complaints about McKay’s handling of the voter fraud allegations. In addition, Comey told us he did not remember hearing anything negative about McKay concerning the governor’s race. Similarly, none of the other Department managers we interviewed said they recalled hearing any concerns about the way McKay handled the allegations of voter fraud.

4. 2006 LInX Issues

In August 2005, just prior to Comey’s departure, Sampson sought his assessment of certain U.S. Attorneys whose terms were expiring, including McKay. According to a contemporaneous e-mail from Comey, he told Sampson he agreed with one of Sampson’s assessments and stated he had no strong views on the others, with the exception of McKay. Comey stated, “McKay has been great on my information sharing effort.”¹⁶⁵

In the fall of 2005, McKay was appointed to chair the Regional Information Sharing Working Group, a subcommittee of the Attorney General’s Advisory Committee (AGAC). In that role, McKay began traveling around the country giving presentations about the benefits of LInX to other U.S. Attorneys.

According to Mercer, who was Principal Associate Deputy Attorney General at the time, in early 2006 the Deputy Attorney General’s Office became concerned that McKay was advocating LInX as the Department’s only information sharing initiative when it was one of several different information sharing initiatives used in U.S. Attorneys’ districts nationwide. Mercer said in early 2006 the Deputy Attorney General’s Office received complaints from Department law enforcement components that McKay was traveling around the country endorsing what was viewed as a Navy-funded system for nationwide use even though other U.S. Attorneys’ districts used different information-sharing programs. However, we found no evidence that anyone shared those complaints with McKay.

McKay acknowledged that he presented LInX to other U.S. Attorneys and federal law enforcement entities in the districts as the Department’s national information sharing vision. McKay told us that at the time he was unaware of the complaints or that the Department did not want to endorse any particular system. McKay said that he believed the other information systems were fundamentally different from the LInX program. McKay also said that through mid-2006, no one in the Department’s leadership offices told him they disagreed with his assessment of LInX or indicated they wanted to go in a different direction on a national information sharing system.

In addition, McKay said that during a meeting with Pentagon officials on April 27, 2006, McNulty led him to believe that McNulty fully supported LInX as the Department’s nationwide information sharing program. McKay said McNulty indicated to Department of Defense officials at the meeting that he fully supported LInX, including full text information sharing and robust participation by the Department law enforcement components. McKay said he came away from the meeting with the view that McNulty would soon draft a letter to the Deputy Secretary of Defense accepting an offer the Department of Defense made to help establish the LInX program in a second district and to partner with the Departments of Justice and Homeland Security to expand LInX nationwide.

McNulty, however, told us the issue was not as simple as McKay seemed to believe. McNulty noted that there were other types of information sharing systems used in other areas of the country, and he was attempting to address the complexities of a broader multi-law enforcement agency information sharing concept. McNulty said that several groups, including the Navy, had different agendas for information sharing with the Department, and he was attempting to address conflicting concerns, such as the extent to which the Department should open its records to outside entities. McNulty said he discussed with his staff the technology issues involved in information sharing, and they concluded that the Department needed to remain neutral about which systems it used.

1. Contentious Meeting with McNulty and Mercer

McKay said that by the end of June 2006, he was concerned about the Department’s inaction in endorsing LInX over other information sharing systems. According to McNulty and Mercer, the matter came to a head on June 30, 2006, when McNulty, Mercer, and McKay had what McNulty described as an intense meeting with McKay to discuss the future of LInX.

McNulty said that McKay expressed very strong views as to how the Department’s information sharing strategy should proceed. McNulty told us that McKay refused to acknowledge what McNulty described as the complexities of the issue. McNulty said he became frustrated trying to get McKay to understand that there were many factors involved in developing a national information sharing strategy. According to McNulty, he tried to explain to McKay that there were other types of information sharing systems being used across the country and it was important to be neutral about a particular technology. McNulty said McKay persisted in trying to persuade McNulty to endorse LInX as the sole information sharing program for the entire Department. McNulty told us that he also described to McKay one Department law enforcement component’s unease about sharing its law enforcement records with local law enforcement because those records contained sensitive source information and leads in cases, but McKay did not seem concerned about that. According to McNulty, McKay was not in a position to appreciate the complexities because he was not seeing the issues from a national perspective.

Mercer described McKay’s conduct at the June 30 meeting as “hostile” and “confrontational,” and said he believed McKay crossed over the line from healthy discussion to accusing McNulty of failing to do anything to advance the LInX program. Mercer told us that he thought the meeting was a very significant event in terms of how McNulty perceived McKay. Mercer said McKay acted as though he were the decision maker concerning how the Department’s information sharing program should proceed. Mercer also said that McKay did not seem to appreciate that it was up to McNulty to figure out a way to harmonize all of the different interests of the Department and come up with a coherent information sharing policy. Mercer acknowledged, however, that neither he nor McNulty warned McKay about his conduct either at the meeting or afterward.

McKay agreed that the meeting was intense, and said that he bluntly laid out his concerns that the Department’s law enforcement components were not providing full information for the existing LInX programs and that McNulty had not followed up with the Department of Defense on its offer to contribute additional funding for new LInX systems. McKay said that he came away from the meeting still believing that the Department was going to move forward with LInX nationwide in partnership with the Department of Homeland Security and the Department of Defense. According to McKay, neither McNulty nor his staff informed him that the Department was going in a different direction and would not be endorsing LInX as the Department’s sole information sharing initiative.

2. McKay’s Bid for a Judicial Nomination

During the summer of 2006, McKay sought a judicial nomination to the federal district court in Seattle, and the Department supported his nomination. Sampson wrote in an August 8, 2006, e-mail to one of McKay’s U.S. Attorney colleagues, “It’s highly unlikely we could do better in Seattle.” Sampson also wrote that on behalf of Attorney General Gonzales he had raised the issue of McKay’s nomination to the White House. Sampson said he viewed the job of U.S. Attorney as different from the job of a judge. Sampson stated that he liked McKay personally and thought McKay was “a personable guy.” Sampson also said he “was always disposed for prosecutors to go on the bench.”

However, the Washington state judicial selection panel did not recommend McKay for the judgeship. McKay said that after learning he had not received the recommendation, he called Harriet Miers, whom he knew from his tenure as President of the Legal Services Corporation. On August 22, 2006, McKay met with Miers and Deputy White House Counsel William Kelley about his interest in being selected for the judicial vacancy. McKay told us that he found out at this meeting that the White House Counsel’s Office had been told that McKay had mishandled the investigation of voter fraud allegations stemming from the 2004 governor’s election. According to McKay, the first question Miers and Kelley asked him at the meeting was why Republicans in the state of Washington were angry with him.¹⁶⁶

3. McKay’s August 30 Letter to McNulty

E-mail and other documents indicate that at the end of the summer 2006, tensions between McKay and members of the Deputy Attorney General’s staff had continued to build over the LInX issue. On August 30, 2006, McKay prepared a letter he drafted to McNulty on behalf of the AGAC Regional Information Sharing Working Group. The letter, which contained the signatures of 17 U.S. Attorneys in addition to McKay, included a request that McNulty meet with the group. It also stated,

As the Department’s “Field Commanders,” we United States Attorneys believe that the LInX approach offers the best, most complete and proven path to real and effective law enforcement information sharing among federal, state, and local partners.¹⁶⁷

The letter urged McNulty to endorse the LInX approach, support its expansion nationwide, mandate that DOJ law enforcement components share the full text of unclassified law enforcement records, and “direct DOJ policy and resources to support building, funding and management of LInX projects in partnership” with other agencies.

McKay told us he drafted the letter because he thought it would be useful to McNulty to have the views of the other U.S. Attorneys in the working group. McKay said he did not think the letter was controversial because he had the impression that McNulty had already agreed to the points in the letter. McKay said he reasoned that McNulty could use the letter to address any contrary arguments from the law enforcement components because McNulty could tell the components that he was responding to the concerns of Presidentially appointed U.S. Attorneys.

On August 31, 2006, McKay distributed the letter via e-mail to approximately 50 people, including U.S. Attorneys and Justice Department officials involved in the information sharing program, as well as to individuals at NCIS, state and local government officials involved in Northwest LInX, and an individual in the private sector involved in developing the LInX concept. McKay said he sent the letter to the non-Department individuals because they were either parties to the Memorandum of Understanding between the Department and the Northwest LInX Governance Board, or they had otherwise worked with NCIS to develop the strategic plan for LInX. McKay said the non-Department officials whom he copied on the letter were “deeply involved” in the question of how much data the Department would provide. McKay said it was not his intention to put McNulty in a difficult position by copying the letter to the non-Department entities involved in LInX.

4. McNulty’s Response to McKay’s letter

In an e-mail on August 31, 2006, to Elston, McNulty’s Chief of Staff, a detailee in the Deputy Attorney General’s Office expressed outrage that the letter, which he characterized as an “internal deliberation” document, was shared with individuals outside of the Department of Justice. Elston telephoned McKay on September 1. According to McKay, Elston was extremely upset about the letter. McKay said he was alarmed and surprised to get the call because he had thought the letter would be well received based on his prior conversations with McNulty. McKay also said he did not believe the letter would be controversial because he had discussed the issues in the letter on numerous occasions with McNulty and McNulty had not disagreed with him.

McKay said that Elston accused him of trying to force McNulty to endorse LInX. McKay said he explained the issues to Elston and noted that the letter had been signed by all of the U.S. Attorneys in the Working Group. McKay said that Elston was also very angry that the letter had been distributed outside the Department. McKay acknowledged to Elston that the letter was sent to individuals outside the Department, but said that those individuals were involved in the Northwest LInX project, and it was not intended to be distributed to the general public. McKay said that by the end of his conversation with Elston he thought he had reassured Elston by explaining that the working group did not want to put McNulty in a difficult position but was only trying to voice the working group’s concerns. McKay said he also noted that in the letter the U.S. Attorneys had asked for a meeting with McNulty to discuss the issues. Elston told McKay that he would talk to McNulty and would be back in touch with him. According to Elston, McNulty decided to “wait things out” before agreeing to meet with the U.S. Attorneys.

On September 5, 2006, McNulty wrote an e-mail to the U.S. Attorneys who signed the letter, stating “I am quite disappointed that you have chosen to communicate with me in this way. It appears that you are trying to force me to take some specific actions.” McNulty wrote that the letter was “particularly distressing because it is shared with folks outside the Department. This is not the way we should be working through difficult issues.” McNulty also wrote, “There are other important considerations involved in this matter. Does anyone see the problem with the Department endorsing a specific brand of info sharing when there are other types being used with success in various regions?” McNulty wrote that “it is best to talk these things through a bit before laying down a challenge in writing which will set the Department up for failure.” McNulty ended the message by stating, “I look forward to meeting with the working group, although now it will be a more challenging conversation.”

McKay said McNulty’s e-mail “scared the hell out of everybody.” McKay said that given the prior telephone call from Elston, he was not completely surprised by McNulty’s e-mail. However, McKay said that McNulty’s e-mail expressed views that were inconsistent with conversations he had previously with McNulty about the information-sharing initiative. McKay said he had briefed McNulty in great detail at the June 30 meeting concerning what McKay perceived to be the inadequacies of the other information sharing systems, and he thought McNulty had agreed with him. McKay also said that McNulty had never given him any indication that other information systems were still a concern until he received McNulty’s September 5 e-mail. McKay said that in his opinion, up to that point there was never truly a policy disagreement between McKay and Department leaders over LInX.¹⁶⁸

5. McKay Appears on the September 2006 Removal List

On September 13, 2006, 8 days after McNulty sent his e-mail to the U.S. Attorneys, McKay’s name reappeared on Sampson’s list of U.S. Attorneys the Department recommended removing. Sampson listed McKay as one of six “USAs Who We Now Should Consider Pushing Out.”

Sampson said that he put McKay on the September 13 list because McNulty’s office was unhappy that McKay had tried to force McNulty to act on the LInX matter. Sampson added that McKay’s conduct in connection with the LInX matter had irritated McNulty and Elston. Sampson said it was likely he had learned from McNulty and Elston at the daily senior management meetings about McKay’s August 30 letter.

McNulty told us he likely expressed his frustration to Sampson about the way McKay was handling the LInX matter. However, McNulty told us he did not instruct Sampson to put McKay on the removal list. McNulty also said that he was prepared to work with McKay to resolve the issues. McNulty said that despite his frustration with McKay at the time, if Sampson’s removal plan had not been initiated, McKay’s conduct would not have warranted his removal.

As discussed in Chapter Three, McNulty did not become aware until the late fall of 2006 that McKay’s name was on a list of U.S. Attorneys to be removed. McNulty said he was “predominantly deferential” to Sampson as the Department’s personnel official who decided who to remove. McNulty said his first reaction, after being surprised that the U.S. Attorney removal plan was going to be implemented, was to ask himself if he had any objection to the names. He said he did not object to McKay’s name on the list because he had questions about McKay’s judgment in light of the way McKay had handled the LInX matter.

6. McKay is Told to Resign

McKay said he was very surprised when EOUSA Director Battle called him on December 7, 2006, and told him to resign. McKay said Battle told him that “‛the Administration wants to go in a different direction and they would like you to resign.’” McKay said he asked Battle what had happened and Battle told him he could not provide him with any further information.

McKay said Battle indicated that he should resign by the end of January. McKay said that although he immediately assumed he had done something wrong, he readily dismissed that from his mind because nothing had happened other than the LInX matter, and he said he never dreamed that that would be the cause for his dismissal. McKay said that he began to press Battle about whether he had done something wrong. Battle responded with words to the effect that “someone getting a call like this one is going to assume that they have done something wrong and that’s not always the case.” McKay said that during the call they did not discuss any issues concerning policy or performance or any other reason for his removal.

Battle confirmed McKay’s account of the conversation. He said McKay asked Battle if he had done anything wrong and Battle responded that he was not in a position to tell him. Battle told us he did not know the reason why McKay had been asked to resign.

McKay told us that he believed he was still in the running to be a federal judge when he received the December 7 telephone call from Battle, but that as soon as he received the phone call he knew he would not be nominated. McKay said that a few days after Battle told him to resign he received a phone call from the White House stating that he was not going to receive the judicial nomination.

McKay announced his resignation on December 14, 2006, and left office on January 26, 2007.

7. Allegation that McKay was Removed Because His District’s Sentencing Statistics Were Out of Line

As discussed in Chapter Three, on February 14, 2007, McNulty provided a closed briefing for the Senate Judiciary Committee. According to notes taken by Nancy Scott-Finan, an official in the Department’s Office of Legislative Affairs, McNulty stated that one of the reasons for McKay’s removal was that sentencing statistics of the Western District of Washington were out of line with other districts and the office was not seeking to appeal sentences that were below the relevant ranges in the United States Sentencing Guidelines.

Sampson told us that although he put McKay on the September 13 list because of his behavior related to the LInX matter, the sentencing issues were another concern in Sampson’s mind that justified McKay’s removal. Sampson also told congressional investigators that he recalled hearing concerns from Mercer about McKay’s district’s sentencing practices, although Sampson said he could not recall when the discussion took place.¹⁶⁹ Sampson said he recalled discussing with Mercer the concern that McKay’s office never sought to appeal downward departures that resulted in lesser sentences than called for under the sentencing guidelines.

Mercer told us that McKay’s district’s sentencing statistics could not have become an issue until well after the Supreme Court decided United States v. Booker, 543 U.S. 220 (2005) on January 12, 2005.¹⁷⁰ Mercer said that after that decision, in contrast to other districts McKay’s district was not asking the Department’s Solicitor General to authorize appeals in cases with major downward departures.

Mercer stated that he did not learn about McKay’s district’s sentencing issues until sometime in 2006 after the data from the Sentencing Commission was released for fiscal year 2005. Mercer said that he never contacted McKay about any concerns relating to sentencing issues in McKay’s district, and he had no idea whether anyone else at the Department spoke to McKay about the concern.

McKay told us that he was never made aware that the Department was concerned about his office’s sentencing statistics. McKay said he never had a conversation with anyone in Department leadership about the issue, and had no idea that anyone had expressed a concern that he was not complying with Department policy. McKay testified to Congress that the first he learned about the Department having such concerns was in Moschella’s testimony before Congress on March 6, 2007, after McKay had been removed.

Margolis told congressional investigators that it was only after McKay was asked to resign that Margolis became aware of any concern regarding McKay’s district’s sentencing practices. Rather, according to Margolis, after he learned in late 2006 that McKay was going to be removed, Mercer told him McKay was on the list because he had acted like a bully when he tried to use other U.S. Attorneys to unfairly pin the Deputy Attorney General into a corner on an information sharing project.

The most serious allegation related to McKay’s removal was that he was forced to resign because of complaints about his handling of allegations of voter fraud in the closely contested Washington State gubernatorial election in 2004. Sampson included McKay’s name on his first removal list in March 2005, during the controversy about McKay’s handling of the voter fraud allegations. However, Sampson stated that he did not believe he placed McKay’s name on this list because of anything related to voter fraud allegations, and none of the other Department officials we interviewed said they recalled hearing any concerns about the way McKay handled such allegations.

Sampson took McKay’s name off his next two removal lists, in January and April 2006, but subsequently put McKay back on the list in September 2006. McKay remained on subsequent removal lists and on December 7, 2006, was told to resign.

As discussed below, we were not able to conclude, based on the evidence, whether complaints about McKay’s handling of voter fraud cases either did or did not contribute to his removal as U.S. Attorney. However, the evidence suggests that the primary reason for McKay’s removal was his clash with Deputy Attorney General McNulty over the LInX information-sharing program.

1. Voter Fraud Complaints

McKay was included on Sampson’s first removal list, which he sent to the White House on March 2, 2005, the same time as the controversy about voter fraud allegations connected to the 2004 Washington State governor’s election. Sampson stated that he did not believe he put McKay’s name on this first list because of McKay’s handling of these voter fraud issues. Rather, Sampson said he believed he placed McKay’s name on this list based on McKay’s contentious relationship with the Deputy Attorney General’s Office over the Wales murder investigation.

In August 2005, Deputy Attorney General Comey spoke very highly of McKay to Sampson, praising McKay’s work on an information sharing project called LInX and calling McKay a “visionary” for his work on that project. After Comey’s comments to Sampson, McKay did not appear on Sampson’s next two removal lists, in January 2006 and April of 2006.

McKay’s name reappeared on Sampson’s September 2006 list. Sampson told us that he placed McKay on the September 2006 list because McNulty’s office was unhappy that McKay had tried to force McNulty to act on the LInX information-sharing matter.

McKay told us that White House Counsel Miers and Deputy White House Counsel Kelley told him at a meeting in August 2006 – a few weeks before McKay’s name was placed back on the list – that Washington State Republicans were displeased with his handling of the voter fraud allegations. This suggests that someone complained to White House officials about the way McKay handled the allegations, but we do not know what impact any such complaints had on McKay’s removal. Sampson told us he remembered hearing complaints at some point about McKay’s handling of the voter fraud issues, although he did not remember when or who raised the complaints. As noted above, key White House officials such as Rove, Miers, and Kelley declined to be interviewed by us.

In sum, we could not determine whether complaints to the White House about McKay’s handling of the voter fraud allegations stemming from the 2004 Washington State gubernatorial election contributed to his placement on the removal list, particularly without interviews of relevant White House officials.

2. Wales Murder Investigation

Sampson told congressional investigators that he believed he had initially included McKay’s name on his first removal list in March 2005 because McKay was overly aggressive with Deputy Attorney General Thompson in seeking resources to investigate the 2001 murder of AUSA Wales. However, we did not find significant corroboration for Sampson’s claim. First, Thompson said he did not recall any tension between himself and McKay on this issue. While Thompson said he remembered people on his staff complaining about McKay’s constant demands for additional resources for the case, Thompson also emphasized that McKay did not do anything inappropriate in connection with the Wales case.

Other Department managers we interviewed said that McKay was very aggressive about seeking additional resources for the Wales investigation and in seeking to replace the prosecutor originally assigned to the Wales investigation. Several officials told us that McKay was pushy and tended to complain a lot. Yet, we found no evidence that anyone suggested to Sampson that McKay should be removed because of his actions in the Wales case, and no one ever said to McKay that anything he did in advocating for more resources in the Wales case was inappropriate.

If Sampson’s statement about why he put McKay on the list is accurate, we find it troubling that McKay’s aggressive push for resources in the investigation of the murder of an AUSA from his office would result in his placement on a removal list. As Associate Deputy Attorney General Margolis stated, McKay’s conduct was understandable given the situation in which McKay found himself when he became U.S. Attorney – trying to lead the office in the aftermath of Wales’s murder and in the wake of the September 11 attacks when resources for matters other than terrorism investigations were scarce. Deputy Attorney General Thompson also said that while he may have become annoyed with McKay’s persistence, he was also aggravated by a number of other U.S. Attorneys.

McKay’s inclusion on the removal lists also underscores the fundamental problem with the entire removal process: the Department’s failure to use consistent or transparent standards to measure U.S. Attorney performance and to determine whether a U.S. Attorney should be recommended for replacement. Instead, Sampson talked to a few people about who they thought were strong or weak U.S. Attorneys, and he relied on their impressions and comments about various U.S. Attorneys, without any attempt to corroborate the comments, seek alternative views, systematically evaluate the U.S. Attorneys’ performance, or even allow the U.S. Attorneys to respond to any concerns about their actions. The ad hoc nature of Sampson’s lists and Sampson’s claim, if true, about why McKay’s name appeared on the first list – allegedly for being too aggressive in seeking resources for an investigation of the murder of an AUSA – demonstrated the fundamentally flawed and subjective process he used to create these lists.

3. Sentencing Statistics

We also did not find any evidence to support the claim, first raised in McNulty’s closed briefing to the Senate Judiciary Committee, that McKay was removed because his district’s sentencing statistics were out of line with other districts. No one raised this issue with McKay while he was U.S. Attorney, and this issue did not appear to come to light within the Department as a concern until after McKay had been removed. Although Mercer said he was aware sometime in 2006 that McKay’s district’s sentencing statistics were below par, we found no evidence that any other Department manager was concerned about it, discussed it among themselves, or raised it with McKay.

In sum, this purported reason appears to be another after-the-fact rationalization for why McKay was included on the removal list. We believe that raising this claim in the briefing to Congress was misleading and cast further doubt on the Department’s credibility in providing the real reasons for the removals of the U.S. Attorneys.

4. LInX

Sampson told us that he placed McKay on the September 13 list because McNulty’s office was unhappy that McKay had tried to force McNulty to act on the LInX information sharing system. Sampson told us that McNulty was irritated by McKay’s August 30 letter urging McNulty to adopt LInX as the Department’s sole information-sharing program. The letter, signed by 17 U.S. Attorneys in addition to McKay, was disseminated inside and outside the Department. The timing of McKay’s placement on the September 13 list – only a few days after the controversy about his actions concerning LInX arose – supports Sampson’s explanation for placing McKay on this removal list.

McNulty said he likely expressed his frustration to Sampson about the way McKay had handled the LInX matter in late August 2006. McNulty also told us he would not have recommended McKay’s removal because of the LInX issue, but he did not say that to Sampson. Moreover, once McNulty learned about the removal plan in late October 2006 and saw McKay’s name on the list, he did not tell Sampson to take McKay’s name off the list.

In sum, we believe the evidence suggests that Sampson placed McKay on the list for removal because of his actions in the LInX matter. However, the Department’s various descriptions of why McKay was removed severely undermined its credibility when it tried to explain its actions.