How well I remembered!
All the talk of resignations put the president in a box he did not appreciate. I remained silent, except to agree that subordinates should not threaten to resign; if they are unhappy or disagree over something, they should simply resign. My own resignation letter in my coat pocket now seemed ready to pop out.
“I can’t have mass resignations,” the president said. “Did you know about Bob’s position?”
“Yes,” I said. “We talked yesterday and this morning.” I told the president that Bob was beloved in the Justice building, and as the FBI director and a former US attorney, if he resigned over an order from the president to return documents seized during a high-profile criminal investigation, then I would have to resign as well, irrespective of what I thought about the president’s decision. It would be wrong for me to continue on as attorney general if the director of the FBI resigned as a matter of principle. If Bob resigned and I stayed, I’d be ineffective anyhow, as my credibility would be gone as far as my coworkers were concerned.
As soon as I said the words, I had regrets. While not couched as an ultimatum followed by a threat to resign, my comment signaled just that. It was not right. I needed to keep an open mind about what I would do if Mueller resigned.
I quickly added, “I believe you deserve to have your orders carried out, even ones I disagree with. After all, there’s nothing illegal about returning the documents.” I then explained to the president how we had offered various compromises to the House leadership—good, viable options, in my opinion—but they had all been rejected, presumably because the White House had undercut the Department of Justice.
My conversation with the president lasted about half an hour. It was an emotional and straightforward discussion, and at no point did the president order me to return the seized documents to Congressman Jefferson. As I started to leave the Oval Office, the president walked to the door with me and patted me on the back. “You know that I think of you as a brother,” he said, his hand still on my back.
“Yes, sir,” I replied. “Thank you.”
“Well, hang in there,” he said.
“I will.”
I felt a wave of relief flow over me as I walked out of the White House and climbed into the waiting Suburban for the brief ride back to Justice. As we turned down Constitution Avenue, I felt that I had stated my case to the president, and I thought about how I would respond if, after all, he ordered the documents returned. If that happened, I decided I would first do my best to convince Mueller to follow the order and to remain as director of the FBI. If Mueller agreed, then having him by my side, if I decided to stay, would deflect some internal criticism from career DOJ employees who would feel that we had kowtowed to the political pressure from the White House.
On the other hand, if Bob Mueller balked and refused to return the documents, or even if he did return them but resigned as FBI director, I’d face the difficult decision about whether I could stay on as attorney general.
I asked Paul McNulty and other senior DOJ officials to join me for lunch in the attorney general’s dining room. We didn’t often eat together, and this might well be the last opportunity.
As we sat down for lunch, we received some good news. The jury on the Enron case had returned with fraud and conspiracy convictions for the company’s chairman, Ken Lay, and CEO Jeff Skilling. The Enron scandal had rocked the economic world in December 2001, when the Texas-based energy company declared bankruptcy, taking with it the pensions and life savings of more than twenty thousand of its employees and investors. The FBI discovered that the mighty fall had taken place due to cheating investors and sham accounting practices that allowed the leaders of the company to enrich themselves. Enron’s collapse triggered the demise of giant accounting firm Arthur Andersen, which had collected fees of more than $25 million from Enron the previous year.1 The company’s chairman, Ken Lay, had been a Bush supporter, so naturally, the focus turned toward that relationship. But as it turned out, fully three-quarters of the US Senate had received cash from Enron, both Republicans and Democrats.2
The FBI investigation involved more than forty-five agents in Houston and Washington. They carted out more than five hundred boxes of evidence from the fifty-story Enron headquarters. The five-year investigation had finally led to the convictions of the top Enron officials.
I had known and worked with Ken Lay early in my Houston law career, helping with various community projects. He seemed like a decent man, so the news of his conviction was bittersweet. I was saddened for Ken and his family, but happy for the prosecution team, and glad that the many people who had lost their livelihoods, health insurance, and retirement savings would at least have the consolation of knowing the perpetrators of the fraud would be punished for it. It was a great win for our prosecution team and a highly visible example of the president’s commitment to punish corporate wrongdoing.
The irony was not lost on me that the convictions came on the day when congressional wrongdoing with far less money and far fewer lives involved might end the careers of many of us who had been guiding the Enron investigation. Nevertheless, the verdict lifted our spirits.
During lunch, Josh Bolten called, so I went to my office to take the call. The message Josh conveyed surprised me. “The president is going to order that we seal the documents for forty-five days under the custody of Solicitor General Paul Clement,” Josh said. “To provide time to work something out.”
I was pleased and concerned at the same time—pleased that the president was not ordering us to return the documents to Jefferson, yet worried that he was inserting himself into a criminal investigation. To Josh, I questioned the wisdom of involving the president in an ongoing criminal investigation. “As attorney general, I could order a stand-down for forty-five days,” I suggested.
“No,” Josh replied. “The White House wants it public that the president is stepping in to resolve the crisis.” Although Josh did not say so, I suspected that the president’s decision was also intended to show Speaker Hastert that this would be the extent of President Bush’s help on this matter.
I thanked Josh and walked back into the dining room, no doubt unable to mask my relief. I announced the president’s decision to our team, and they responded with a quiet, subdued, but heartfelt cheer and a few fist-pumps. I immediately ordered that we comply with the president’s order and turn the documents over to the solicitor general.
I walked back to my office and breathed a sigh of relief.
The next morning, President Bush called me around 7:00 a.m. “How are you feeling?” he asked.
“Great,” I replied. “How are you feeling?” Both of us knew that we were not inquiring about the other’s physical health. I thanked the president and told him he had made a good decision regarding the Jefferson documents.
“Well, it was hard watching you agonize over this. That caused me to agonize,” he said. He then told me to use the forty-five days to work out a solution.
I understood and I urged him to limit the White House’s involvement. There were already grumblings from law enforcement because he had interjected himself.
“Yeah, imagine if I had ordered the documents returned,” he said. “The grumbles would turn into a rumble!” We both laughed, and then the president was back to business. While he noted that the tide of public opinion had shifted in our direction, he emphasized that we needed to give the House and Dennis Hastert a noble way out.
I understood. Comity was important. Damage had to be assuaged; egos had to be soothed. The president needed the House Republicans to further his agenda.
He concluded the call by saying, “All right, brother. Talk to you later.”
I appreciated his call. I sensed that it was his way of saying, “I hope you are okay now; all is well between us.” He did not have to do such a thing, but it was part of his character. With the myriad matters on his desk each morning, it was especially thoughtful that he would take the time to make such a call. When pe
ople later wondered why I and others on his team were so intensely loyal to President Bush, moments like these came to mind.
The following day, true to form, the New York Times and the Washington Post got part of the story right and part of the story wrong. Both newspapers reported that Mueller and I had threatened to resign over the documents issue. That was false. Although I had carried my written resignation in my coat pocket during my meeting with the president, I never threatened to resign. I well might have resigned had he ordered me to return the documents, but I did not—nor would I—threaten to resign. I regretted my inadvertent signal because I believed then, as I do now, that subordinates should not attempt to influence the president’s decisions by threatening to resign. If a government official is unhappy about the chief executive’s lawful orders, he or she should either accept it quietly or simply resign. Threat of resignation should not be a weapon used against the president.
While the president’s decision gave us forty-five days to find a solution, the legal questions remained: Was the search of Jefferson’s office constitutional? And more specifically, what is the scope of the speech and debate clause?
On July 10, 2006, we received our initial answer. Judge Hogan—an experienced and well-respected jurist—held that the search was lawfully conducted, ruling that members of Congress who are under criminal investigation deserve no more protection under the law than ordinary citizens. Judge Hogan concluded that Congressman Jefferson’s interpretation of the speech and debate privilege would have the effect of converting every congressional office into a taxpayer-subsidized sanctuary for crime. The possibility that some legislative material might have been “inadvertently captured” by the FBI did not make the search illegal. It was a sweet victory for the Justice Department; the judge had agreed with us.
Unfortunately, the decision did not stand. A year later, the DC Circuit Court reversed Judge Hogan’s decision and ordered that all privileged documents should be returned to Jefferson. The court said that the FBI should not have viewed documents in Jefferson’s office without first giving Jefferson the opportunity to say which materials did not involve legislative business.
Although we were pleased that all the documents did not have to be returned, the court’s ruling effectively prevented any future searches of congressional offices on Capitol Hill and threatened to impede searches of lawmaker’s homes, vehicles, or even briefcases. The US Supreme Court declined to hear the Justice Department’s appeal of the DC Circuit Court’s decision. As a result, the perfect place to hide evidence of a crime is now in the office of a congressman or senator in our nation’s Capitol.
The privileged documents were returned, and the Justice Department successfully prosecuted Congressman Jefferson without them. He was found guilty on eleven of sixteen counts of money laundering and conspiracy to bribe, and received a thirteen-year sentence.
In hindsight, I should have listened to my better judgment and not authorized the search of Jefferson’s office. It was a close legal conclusion, but according to a panel of circuit court judges, my decision was a mistake; I had made the wrong call.
After this incident, Speaker Dennis Hastert and I never again met or even spoke to each other for the remainder of my time in Washington. While the Jefferson saga boosted my standing at the Justice Department, it hurt me with the House leadership. Jefferson was not the only big loser. His fate had already been sealed by the evidence, but the search of his office and the residual anger on Capitol Hill meant the loss of goodwill and political capital for me.
CHAPTER 34
HUNTING SEASON
Shortly after I was appointed attorney general in 2005, Harriet Miers became White House counsel and suggested that the Department of Justice replace the nation’s ninety-three US attorneys located throughout the country. Her suggestion was not improper. A US attorney is a presidential appointee whose term of office is by statute four years, after which he or she may be held over until a successor is appointed.
While the work of the US attorney is expected to be above politics, the appointment of a US attorney is often quite political, and the removal of a US attorney can be partisan as well, all part of the political patronage system. Some members of Congress even regard these appointments as theirs, a way to reward party loyalty. Home-state senators expect to weigh in on US attorney appointments, although the final selections are made by the White House.
Federal prosecutors work as part of the Justice Department and report to the attorney general, but they know they serve at the pleasure of the president. They can be removed from office by the president at any time, for political or other reasons, or frankly, for no reason at all. The president has wide latitude to make such changes. The only inappropriate removal would be one made to impede an investigation or an ongoing case. Even under these circumstances, however, a removal of a US attorney would not likely affect an investigation or case because these are normally supervised by career attorneys whose jobs are protected by civil service laws.
The president, of course, does not usually make a decision to remove a US attorney arbitrarily, but would ordinarily do so with the advice of or at the suggestion of the leadership at the Justice Department, including the attorney general. Nevertheless, US attorneys serve at the pleasure of the president, not the attorney general. Because they are presidential appointees, they cannot be appointed or removed without the concurrence of the White House. Consequently, at Harriet’s prompting, I instructed my then deputy chief of staff, Kyle Sampson, to coordinate a high-level review of all ninety-three US attorneys across the country.
Kyle was ideally suited to gather the views of DOJ senior leadership and help assess personnel. He had been involved since the transition days in 2000 and 2001 in evaluating and vetting lawyers for highly responsible positions throughout the Bush administration, including the deputy attorney general, the solicitor general, and the heads of DOJ divisions such as tax, antitrust, and criminal law. He knew generally the responsibilities of the US attorneys. In fact, he had participated in screening interviews of many of the sitting US attorneys, and his evaluation played a role in their appointments.
Beyond that, Kyle knew the type of individuals the president and I wanted as US attorneys—straight arrows, tough, and responsible. I expected him to consult with Mike Battle, the director of the executive office for US attorneys, our liaison with the US attorneys, and Deputy Attorney General Paul McNulty to get their perspectives about our prosecutors across the country. Mike and Paul had both previously served as US attorneys and knew well these people, their qualifications, and reputations. I also expected Kyle’s reviews to be completed in a reasonable amount of time.
Unfortunately, because of pressing DOJ business and other priorities at the White House, the evaluations took nearly two years. Kyle kept me generally aware of his progress, and I assumed that he was consulting with both White House and DOJ senior leadership throughout the review process. It was only much later that I discovered that Kyle did most of the review work on his own, while consulting only periodically with McNulty, Battle, and David Margolis, an associate deputy attorney general and the highest ranking career attorney in the department.
On November 27, 2006, I met with Sampson, McNulty, Battle, and others to discuss the US attorney removal plan. After subsequent conversations, a list of seven names was finalized: Kevin Ryan (Northern District of California), Carol Lam (Southern District of California), John McKay (Western District of Washington), Paul Charlton (Arizona), David Iglesias (New Mexico), Dan Bogden (Nevada), and Margaret Chiara (Western District of Michigan). No one among the senior leadership of the Department of Justice who had knowledge of these individuals—not McNulty, Battle, Sampson, or Margolis—raised an objection to these removals at the time or subsequently. This was a consensus recommendation at Justice. Likewise, there was no objection or concern expressed by the White House as far as I knew at the time.
The reasons for the removals varied. Kevin Ryan and Margaret Chiara wer
e asked to leave because of mismanagement of their respective offices and low morale. Carol Lam was removed because of DOJ concerns about the low number of gun and immigration prosecutions in her district. Paul Charlton was asked to leave because of his actions relating to a death penalty case and unilateral implementation of an interrogation policy. John McKay was asked to leave because of a disagreement with the deputy attorney general over an information-sharing program. David Iglesias had lost the confidence of the senior senator from New Mexico, so he, like Dan Bogden, was asked to leave to make a change.1 Whether anyone disagreed with these reasons or not, it was not inappropriate to remove a US attorney who served a full statutory term; all served at the pleasure of the president and could be removed for any of the above reasons.
There was no suggestion that these removals would be improper by impeding a case or an investigation. In the years since the removals, following several investigations by Congress and the DOJ inspector general and the Office of Professional Responsibility, not even a shred of evidence suggests the removals were improper because they were intended to impede an investigation or an on-going case. In fact, FBI director Bob Mueller testified under oath that he was not aware of any case or investigation adversely affected by the removals.2
In December 2006, I accepted the suggestions from the DOJ senior leadership, believing changes would strengthen the department, and had them presented as my recommendations to the White House, where the decisions were approved. These were, after all, presidential appointees, so the final decision whether the US attorneys would be replaced rested in the White House.
It is not unusual to see turnovers in US attorneys’ positions during a president’s term in office. Sometimes appointees choose to leave to pursue higher office or work in the private sector. Some leave for family or other personal reasons. Occasionally a US attorney may be asked to leave because of misconduct, mismanagement of the office, or insubordination. Others may simply be asked to step aside to provide an opportunity for someone else to serve. Such departures over the course of a president’s term would not be considered uncommon or inappropriate. Asking seven US attorneys to transition at once may have evoked questions, but should not have raised accusations of wrongdoing. Moreover, why would Democrats care that a Republican president was dismissing Republican appointees?
True Faith and Allegiance Page 44