UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 31, No. 2WINTER 2008
Train Wreck at the Justice Department: An Eyewitness Account
John McKay(fn*)
In a series of early morning phone calls on December 7, 2006, seven United States Attorneys were ordered to resign. Despite initial denials, it would later be revealed that two other U.S. Attorneys had also been ordered to submit their resignations, bringing the total number to nine. Each was given no explanation for the dismissal and most were led to believe that they alone were being dismissed, raising the specter of unstated wrongdoing and encouraging silent departures. Those dismissed uniformly cited the maxim that they "served at the pleasure of the President" and most sought to avoid publicly disputing the Justice Department or the White House.
So what happened? Why were the nine dismissed? Were political considerations allowed to trump the proud heritage of non-partisan, independent prosecutions in a Justice Department widely trusted as the guardian of civil rights? Did the White House or senior Justice Department officials direct the removal of U.S. Attorneys for failing to satisfy local partisans or to retaliate for certain public corruption prosecutions? Have officials lied to cover up wrongdoing and to avoid criminal prosecution? Can the damage to the Justice Department be undone, restoring the role of federal prosecutors as disdainful of politics and devoted to accountability, fairness, and the firm execution of the nation's laws?
These questions were the subject of a public forum on May 9, 2007, sponsored by Seattle University School of Law, and serve in part as the basis for this Article by one of the participants of the forum (and a fired U.S. Attorney).(fn1)
I. Background to a Scandal
When I arrived at my Seattle office early on the morning of December 7, 2006, a typically dark and rainy day, I had a message to call Michael Battle, then-Director of the Executive Office for United States Attorneys in the Department of Justice.(fn2) Although a friend, his tone was terse as he told me that "the Administration wanted a change" and that I should "move on" by the end of the following month.
Knowing that U.S. Attorneys were rarely, if ever, relieved for reasons other than misconduct in office, I asked Mike for an explanation. Offering none, he said the "Administration wanted to go in another direction." After pondering this in silence for a few moments, Battle then offered that "sometimes it's hard not to think you did something wrong when you get a call like this, but that's not always the case." Although circumspect in his remarks, I had just been given a clue that something was amiss. "Wait a minute," I said slowly, "I'm not the only one getting this call, am I?" Battle awkwardly said, "John, I don't have any information on that." I suspected otherwise, but thanked Battle for the call, sincerely grateful that it had come from a friend and not one of those who lacked the courage to carry out their own misguided plans.
Hanging up the phone, I stared out the window into the gray morning Seattle skies with a faint smile, as I drummed my fingers on a conference table. "This will not end as they think it will," I thought, and began to make plans to inform the First Assistant U.S. Attorney and to leave the office I had been so honored to lead for the past five years.
By the end of that day we would learn that six other United States Attorneys had received calls from Battle indicating that the "Administration" sought their resignations.(fn3) Because U.S. Attorneys serve "at the pleasure" of the President, some questioned whether the President himself had ordered the resignations, but all understood that we would not have received such a call absent the explicit approval of the White House. We also knew that Attorney General Alberto Gonzales was a close friend of the President, and even those of us with political muscle were no match against this dynamic. Consequently, all nine U.S. Attorneys eventually tendered their resignations as instructed, most with little or no public comment.
II. Blowing the Whistle-Congressional Oversight and the Beginning of Accountability
This all changed on January 18, 2007, when Alberto Gonzales testified before the Senate Judiciary Committee and faced questioning by the senior senator from California about growing rumors that a number of U.S. Attorneys had been forced out:SENATOR FEINSTEIN: Thank you. You and I talked on Tuesday about what is happening with U.S. Attorneys. It spurred me to do a little research, and let me begin. Title 28, Section 541 states, "[e]ach U.S. Attorney shall be appointed for a term of 4 years. On the expiration of his term, a U.S. Attorney shall continue to perform the duties of his office until his successor is appointed and qualified." Now, I understand that there is a pleasure aspect to it, but I also understand what practice has been in the past. We have thirteen vacancies. Yesterday you sent up two nominees for the thirteen existing vacancies. ATTORNEY GENERAL GONZALES: There have been eleven vacancies created since the law was changed, eleven vacancies in the U.S. Attorney's offices. The President has now nominated as to six of those. As to the remaining five, we are in discussion with home-state senators. So let me publicly sort of preempt, perhaps, a question you are going to ask me. That is, I am fully committed, as the Administration is fully committed, to ensure that with respect to every U.S. Attorney position in this country, we will have a presidentially-appointed, Senate-confirmed U.S. Attorney. I think a U.S. Attorney, who I view as the leader, law enforcement leader, my representative in the community, has greater imprimatur of authority if in fact that person has been confirmed by the Senate. SENATOR FEINSTEIN: All right. Now, let me get at where I am going. How many U.S. Attorneys have been asked to resign in the past year? ATTORNEY GENERAL GONZALES: Senator, you are asking me to get into a public discussion about personnel. SENATOR FEINSTEIN: No. I am just asking you to give me a number-that is all. ATTORNEY GENERAL GONZALES: I do not know the answer. SENATOR FEINSTEIN: I am just asking you to give me a number. ATTORNEY GENERAL GONZALES: I do not know the answer to that question. But we have been very forthcoming- SENATOR FEINSTEIN: You did not know it on Tuesday when I spoke with you. You said you would find out and tell me. ATTORNEY GENERAL GONZALES: I am not sure I said that. SENATOR FEINSTEIN: Yes, you did, Mr. Attorney General. ATTORNEY GENERAL GONZALES: Well, if that is what I said, that is what I will do. But we did provide to you a letter where we gave you a lot of information about- SENATOR FEINSTEIN: I read the letter. ATTORNEY GENERAL GONZALES: All right. SENATOR FEINSTEIN: It does not answer the questions that I have. I know of at least six that have been asked to resign. I know that we amended the law in the Patriot Act and we amended it because if there were a national security problem the Attorney General would have the ability to move into the gap. We did not amend it to prevent the confirmation process from taking place. I am very concerned. I have had two of them ask to resign in my state from major jurisdictions with major cases ongoing, with substantially good records as prosecutors. I am very concerned because, technically, under the Patriot Act, you can appoint someone without confirmation for the remainder of the President's term. I do not believe you should do that. We are going to try to change the law back. ATTORNEY GENERAL GONZALES: Senator, may I just say that I do not think there is any evidence that that is what I am trying to do? In fact, to the contrary. The evidence is quite clear that what we are trying to do is ensure that, for the people in each of these respective districts, we have the very best possible representative for the Department of Justice and that we are working to nominate people, and that we are working with home-state senators to get U.S. Attorneys nominated. So the evidence is just quite contrary to what you are possibly suggesting. Let me just say- SENATOR FEINSTEIN: Do you deny that you have asked, your office has asked, U.S. Attorneys to resign in the past year, yes or no? ATTORNEY GENERAL GONZALES: Yes. No, I do not deny that. What I am saying is that happens during every administration, during different periods for different reasons. So the fact that that has happened, quite frankly, some people should view that as a sign of good management. What we do, is we make an evaluation about the performance of individuals. I have a responsibility to the people in your district that we have the best possible people in these positions. That is the reason why changes sometimes have to be made, although there are a number of reasons why changes get made and why people leave on their own. I think I would never, ever make a change in a U.S. Attorney position for political reasons or if it would in any way jeopardize an ongoing, serious investigation. I just would not do it. SENATOR FEINSTEIN: Well, let me just say one thing. I believe very strongly that these positions should come to this committee for confirmation. ATTORNEY GENERAL GONZALES: They...
