The first sign of trouble came when I met with California senator Dianne Feinstein prior to a Senate Judiciary Committee oversight hearing in January 2007. She raised questions about the dismissal of two US attorneys in California—Kevin Ryan in San Francisco and Carol Lam in San Diego. Respecting the service of Ryan and Lam, I declined to share specifics about the removals, but I assured the senator that our actions were to ensure the best individuals were serving the citizens of California.
At the January 18 hearing, Senator Feinstein again questioned the dismissals and asked whether the new appointees would be brought to the Senate for confirmation—or would they be appointed under the PATRIOT Act, allowing the attorney general to make an interim appointment without Senate confirmation?
I understood her concerns. Senators want a say in who serves as US attorney in their states. Further, the power of confirmation is something the Senate zealously guards.
Nevertheless, I questioned Feinstein’s concerns. It was common knowledge within the senior leadership of the Justice Department that the San Francisco US attorney’s office had serious morale and mismanagement issues; Kevin Ryan had lost the respect of senior leaders in his office. In San Diego, Carol Lam had failed to deal adequately with immigration and gun prosecutions—both of which were priorities for a border-state US attorney. Senator Feinstein had even written the DOJ complaining about the work of the San Diego office, so I wondered why she was questioning and making it sound as though she was troubled by the dismissals.
What had changed? When the review process began in 2005, the Republicans controlled the US Senate and the House of Representatives. Following the midterm elections in 2006, that was no longer the case, and in January 2007, the Democrats took over power in the Senate. Democrats had been explicit in their 2006 election campaigns to win back control of the Senate and thus provide oversight of the Bush administration and rein in Bush policies. They now controlled the legislative calendar and the power to conduct investigations. They were looking for a political issue with which they could damage the Republican brand and, in particular, hammer the White House. The US attorney dismissals supplied them with a rallying point.
My questions about Senator Feinstein’s motivation notwithstanding, I assured the Judiciary Committee that I did not intend to use my new appointment powers to select the successors. Those powers in the PATRIOT Act were intended to be used in situations of a national security emergency in which there was precious little time to have a confirmation hearing. I emphasized my belief that a Senate-confirmed US attorney is in a stronger position to deal with state and local officials, as well as other federal agencies, and better able to handle the challenges that accompany the position. I declined to get into the specifics of the dismissals out of respect for the people the president had removed from office, but I repeatedly assured the Judiciary Committee that there was nothing improper about the dismissals.
I had no reason to suspect that anyone at the White House had improperly influenced the Department of Justice regarding the dismissals—and even if they had asked that someone be removed, that would not be an issue, since US attorneys can be replaced by the president at any time for any reason other than the obstruction of justice. Based on what I knew, nothing improper had happened in the case of the seven US attorneys.
Indeed, if I had been looking at the dismissals strictly through a political lens, we certainly would not have proceeded with them after the Democrats won the midterm election in 2006 and took control of the Senate. But we were not thinking in political terms—the dismissals were not a political hatchet job—so in our estimation at Justice, the replacement of the US attorneys was nothing extraordinary. Certainly, the dismissals were significant in the lives of the seven individuals affected, but they all understood the reality that they served at the pleasure of the president.
I had two objectives in making the changes: one, to strengthen the Department of Justice; and two, to ensure that the president had the type of US attorneys he wanted.
Nevertheless, to put an end to the speculations about the reasons for the dismissals, on February 6, 2007, Deputy Attorney General Paul McNulty testified in a Senate Judiciary Committee hearing chaired by New York Senator Charles Schumer. I had encouraged Paul to be straightforward with the committee, but to avoid disparaging the reputations of the dismissed US attorneys by giving specifics about their questionable performances.
I was traveling in South America during that time, meeting with my foreign justice counterparts and addressing such issues as human trafficking and drug prosecutions. When I heard about Paul’s testimony, I was disappointed. I felt he had gone too far in blaming the dismissals of the US attorneys on their poor performances. My concern was twofold: one, I certainly did not wish to publicly disparage the reputations of US attorneys who had served our country; and two, most US attorneys are not docile, passive individuals. I knew that if their performances came under scrutiny, they would defend themselves. I certainly would. That could unnecessarily open a can of worms and was almost certain to beg for more questions. Even though there had been nothing improper about the dismissals, I worried that partisan Democratic members of the Senate Judiciary Committee would play politics with the issue.
I was right. The speculations and accusations about the removal of the seven US attorneys continued, igniting a fire under the Democrats, now a majority in the Senate, as though someone had tossed a match into a gasoline-soaked batch of deadwood.
Paul’s testimony was damaging. Once he acknowledged that the removals were based on poor performance by the US attorneys, that became the narrative, and if we could not provide facts to support that narrative, then we would be seen as being untruthful. Democratic attacks that the removals were improper had no legitimate basis in view of the president’s almost unlimited power of appointment and removal; it simply could not be sustained and they knew it. Lying to Congress, on the other hand, was a much more serious charge and more difficult for us to fight.
In hindsight, we should have said from the beginning that the removals were personnel decisions and we would not talk publicly about them. That would have forced the Democrats to prove the removals were made to obstruct justice by impeding an investigation or prosecution—which, of course, we knew they were not—or drop the issue. Hindsight, of course, is always perfect.
I do not blame Paul for his testimony, nor others in the department for the removals, or for the explanations provided to defend the removals. I was the head of the department, and I was responsible for the actions of my subordinates as well as my own. Paul was simply testifying to the truth as he believed it. Nevertheless, his testimony provided Democrats with a far easier path of attack in questioning my integrity.
On Valentine’s Day, I met with President Bush about the DOJ’s investigations of two border patrol agents who had shot a drug dealer from behind and then had tried to cover up the shooting. Johnny Sutton, US attorney for the Western District of Texas, was leading the investigation. Sutton was a no-nonsense prosecutor and had worked as criminal policy advisor for Bush when he was governor.
Yet Sutton was being publicly second-guessed by conservatives because he was prosecuting two so-called “heroes who were only doing their jobs to protect Americans.” That simply wasn’t the truth.
I explained to President Bush that Sutton felt certain these agents had broken the law and should be prosecuted. When Sutton asked me whether he should move forward with the case, I told him that he should do the right thing and I would stand behind him. President Bush agreed, and said that he trusted Johnny Sutton and would stay with him.
It was then that I spoke to the president for the first time about the US attorney dismissals. He viewed the media speculation and the rumblings in the Senate as typical Washington political gamesmanship. “This is no big deal,” he said. “I trust your judgment. Don’t worry about it.” Both of us acknowledged that he and I had more important matters on which to focus.
As I turned to l
eave, the president stopped me. “Fredo, are you going to stay on until the end of my administration?”
“I’d like to,” I replied, “but as you know, Becky is concerned about our financial situation.”
The president brushed aside those concerns with a wave of his hand. “Within a year out of public service, you’ll recoup everything you have sacrificed,” he assured me. “I hope you will stay on.”
I went back to work and, over the next few weeks, spent little time worrying about the attorney removals. There were simply too many other important issues that required my attention.
Some Democrats, however, apparently believed they had discovered an opportunity to hurt President Bush and openly speculated that the dismissal of the seven US attorneys was due to their failing to prosecute Democrats, or attempting to prosecute Republicans. Without waiting for actual proof of their claims, they launched a whisper campaign purporting that I had “politicized the Department of Justice.”
Keep in mind: the removal of US attorneys cannot happen without White House approval. So if it could be shown that the removals were intended to obstruct justice or impede an investigation or if there was active concealment by the Justice Department with respect to the dismissals, the Democrats might be able to reach all the way to the president—or at least to his friend, the attorney general.
Both Karl Rove and I regarded the removal of the US attorneys as clearly within the authority and discretion of the president. We failed to anticipate that the Democrats would use their recently gained control of the Senate to initiate a political witch-hunt. It seemed their primary intention was to damage the president’s credibility.
The media picked up on the questions and innuendoes and asked me about them. Early on, I responded to questions in a low-key, relaxed manner, assuring the American public that nothing improper had occurred by our replacing the US attorneys. We had nothing to hide because we had done nothing wrong.
March 6, 2007, was a day packed with events, including a phone call with Mexican attorney general Eduardo Medina-Mora, a speech before the National Association of Attorneys General, and a meeting of the Judicial Selection Committee at the White House. In between events, I managed to see portions of a Senate Judiciary Committee hearing concerning the US attorney removals that included the testimonies of Carol Lam, David Iglesias, John McKay, and H. E. “Bud” Cummins. I wondered why Cummins was even at the hearing, since the decision to replace him in Arkansas had been made the previous June, months before the other seven US attorneys had been asked to leave, and after serving his full four-year term.
Obviously, the Democrats wanted to perpetuate the narrative that the Bush administration was removing US attorneys for political motives. Cummins had been asked to leave earlier in the year to make room for Tim Griffin. Griffin had worked in Rove’s office inside the White House and had served in various legal positions in the Justice Department, including work with our DOJ team in Iraq. Cummins had not been asked to leave as a result of the Sampson review process. That fact notwithstanding, Democrats desperately attempted to link the Cummins removal to the Griffin appointment and thus tie Karl Rove to the removals, even though the Cummins situation was totally unrelated to the seven removals at the end of 2006.
Regardless of the real reasons behind their dismissals, these former US attorneys came across during the hearings as innocent victims and hardworking public servants betrayed by their supervisors at the Department of Justice. I understood their desire to defend their reputations, yet on the other hand I was disappointed that they allowed themselves to be used. Their testimonies gave the Democrats what they wanted—faces to a scandal. While Carol, John, David, and Bud all acknowledged that as presidential appointees they served at the pleasure of the president, and they understood he could remove them at will, their appearance nonetheless played right into the hands of the Democrats on the committee and helped perpetuate the myth that they had been wrongfully terminated.
During the weekend of March 3, I tried to focus on my boys’ basketball games. Meanwhile, the drumbeat over the dismissals intensified as the Democratic senators pointed to the Evaluation and Review Staff Reports of US attorneys’ offices (known as the EARS evaluations). For most of the US attorneys who had been dismissed, the EARS evaluations were generally positive. What critics failed to point out was that an EARS evaluation is not a direct report on the US attorney’s effectiveness. It is a peer review of the US attorney’s office, which the US attorney can influence to some degree, but it is primarily an assessment of career prosecutors. The evaluation is a report on the entire office as a whole over a period of time, which may or may not coincide with the tenure of the US attorney.3
Nevertheless, the Democrats claimed that the positive EARS evaluations demonstrated that the US attorneys were not removed for poor performances. On the one hand, they argued that these fine prosecutors had been removed for political reasons. Of course, there would have been nothing improper about removing these US attorneys for political reasons. They were, after all, political appointees. On the other hand, Democrats argued that these prosecutors had been removed to impede an investigation or prosecution. Again, their allegations were absolutely false, but once reported in the media, that didn’t seem to matter. Many in the public assumed the US attorneys had been fired because I, as a friend of the president, had recommended their dismissal for improper reasons.
Senior aides at the White House were growing concerned about the story being blown out of proportion, so I met with the senior leadership at the Department of Justice and decided to get my voice into the narrative by writing an op-ed piece for USA Today. Kyle Sampson, now my chief of staff, prepared the initial draft. Meanwhile, members of my team called members of Congress to reassure them that nothing improper had been done in the dismissal of the US attorneys.
When I reviewed Kyle’s work on the op-ed piece, I was unhappy with language that characterized the dismissals as a “tragically overblown personnel matter.” It was indeed a personnel decision, but asking seven US attorneys to step down was no insignificant matter to the seven individuals involved. I had no interest in publicly criticizing their performances and further disparaging their reputations.
Later that evening, I walked down from my office on the fifth floor at the Department of Justice to the first floor “press shop,” the DOJ media center. My communications team, led by Tasia Scolinos, was scrambling to answer media questions. Ironically, we were experiencing a problem with our computers, so Kyle Sampson was on the phone, calling in my article to USA Today.
Standing in the pressroom, I read the final draft of the article and my eyes widened. I took the article to Tasia. “Have you seen this?” I asked.
“No, sir,” she responded. “I haven’t read that yet.”
As Tasia listened, I read aloud the new conclusion regarding the dismissed US attorneys: “They simply lost my confidence. I hope this episode ultimately will be recognized for what it is: an overblown personnel matter.” Not only had Kyle kept the “overblown” language, he alluded to the US attorneys’ poor performance issues by stating that they had lost my confidence.
I went to Kyle and questioned him about the conclusion. “How could you have included this? You know I would never say publicly that the seven had lost my confidence.”
“Well, the senior leadership in the department had included the seven on the dismissal list,” he said. “Obviously, if the seven had lost the confidence of DOJ’s senior leadership, they had lost the AG’s confidence as well.”
I sighed and shook my head. I was frustrated with Kyle, but there was no point in discussing this with him; Tasia confirmed that it was too late. The editorial was already in the hands of a national newspaper and would hit the press in a few hours. The damage was done.
I went back to my office, packed up my briefcase, took the elevator down to the waiting FBI Suburban, and headed home. I sat in sullen silence as the security detail drove out Pennsylvania Avenue. Oh, Lord, I praye
d. Where is this going? I knew the article would set the wrong tone, and rather than alleviate concerns, it would be like throwing red meat to hungry wolves. The Democrats would pounce on it.
The op-ed ran on March 8, and evoked the expected reaction. Senator Patrick Leahy, chairman of the Judiciary Committee, demanded DOJ documents and access to DOJ officials. When I heard about Leahy’s contorted calls for answers to contrived questions, I thought he might indirectly be providing us an opportunity to be proactive. After all, we had done nothing wrong and we had nothing to hide. What better way to take the air out of the dark balloons Leahy and others were floating than by offering to fully cooperate and share information with Congress?
I decided to give the inquisition what it wanted—access to written documentation and to personnel. My decision carried significant risks. After all, I had not personally investigated the US attorneys we had dismissed. My staff had done the bulk of the work, and had assured me that making changes in these offices would improve the work of the department. I knew of nothing improper about these recommendations. But in agreeing to allow them to talk to the Judiciary Committee about the dismissals, while I was expressing confidence in our staff, I had no certainty about the questions they might be asked, or how they would answer.
Moreover, my decision invoked institutional issues between the legislative and executive branches of government. I had offered to turn over to Congress DOJ documents, some of which might be privileged information. Normally, institutional interests had to be considered and precedents respected regarding the protection of certain communications within the executive branch.
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