On December 7, 2006, the George W. Bush administration's Department of Justice ordered the midterm dismissal of seven United States attorneys. Congressional investigations focused on whether the Department of Justice and the White House were using the U.S. attorney positions for political advantage. The allegations were that some of the attorneys were targeted for dismissal for failing to prosecute claims of election fraud, as retribution for prosecuting Republican politicians, or for failing to pursue adult obscenity prosecutions. The U.S. attorneys were replaced with interim appointees under provisions in the 2005 USA PATRIOT Act reauthorization.
A subsequent report by the Justice Department inspector general in October 2008 found that the process used to fire the first seven attorneys and two others dismissed around the same time was "arbitrary", "fundamentally flawed", and "raised doubts about the integrity of Department prosecution decisions". In July 2010, the Department of Justice prosecutors closed the two-year investigation without filing charges after determining the firing was inappropriately political but not criminal, observing that "evidence did not demonstrate that any prosecutable criminal offense was committed with regard to the removal of David Iglesias. The investigative team also determined that the evidence did not warrant expanding the scope of the investigation beyond the removal of Iglesias."
Issues in brief By tradition, all U.S. attorneys are asked to resign at the start of a new administration. The new president may elect to keep or remove any U.S. attorney. They are traditionally replaced, collectively, only at the start of a new White House administration. U.S. attorneys hold a political office, in which the president nominates candidates to office, the Senate confirms and, consequently, they serve at the pleasure of the president. When a new president is from a different political party, typically almost all of the resignations are eventually accepted and the positions are then filled by newly confirmed appointees, typically from the new president's party. While U.S. attorneys are political appointees, however, it is essential to their effectiveness that they are politically impartial in deciding which cases to prosecute and in arguing those cases before judges and juries with diverse views.
Some U.S. senators were concerned about a provision in the 2006 re-authorization of the USA PATRIOT Act that eliminated the 120-day term limit on interim appointments of U.S. attorneys made by the United States attorney general to fill vacancies. The revised USA PATRIOT Act permitted the attorney general to appoint interim U.S. attorneys without a term limit in office, and avoid a confirming vote by the Senate. The change in the law undermined the confirmation authority of the Senate and gave the attorney general greater appointment powers than the president, since the president's U.S. attorney appointees are required to be confirmed by the Senate and those of the attorney general did not require confirmation. Was available via Real Cities as "Gonzales appoints political loyalists into vacant U.S. attorneys slots".
The Senate was concerned that in dismissing the seven U.S. attorneys which had been confirmed, the administration planned to fill the vacancies with its own choices, bypassing Senate confirmation and the traditional consultation with senators in the selection process. Congress rescinded this provision on June 14, 2007, and President Bush promptly signed the bill into law.
Administration rationale unclear
The reasons for the dismissal of each individual U.S. attorney were unclear. Two suggested motivations were that the administration wanted to make room for U.S. attorneys who would be more sympathetic to the administration's political agenda, and the administration wanted to advance the careers of promising conservatives. Critics said that the attorneys were fired for failing to prosecute Democratic politicians, for failing to prosecute claims of election fraud, as retribution for prosecuting Republican politicians, or for failing to pursue adult obscenity prosecutions. The administration and its supporters said that the attorneys were dismissed for job-performance reasons "related to policy, priorities and management", and that U.S. attorneys serve at the pleasure of the president. However, at least six attorneys had recently received positive evaluations of their performance from the Department of Justice. In September 2008, the Department of Justice inspector general's investigation concluded that the dismissals were politically motivated and improper.
The Bush administration issued changing and contradictory statements about the timeline of the planning of the firings, persons who ordered the firings, and reasons for the firings. The origin and evolution of the list of attorneys to be dismissed remained unclear. In response to the Inspector General's report, in September 2008, Attorney General Michael Mukasey appointed acting United States attorney for the District of Connecticut, Nora Dannehy, as special prosecutor to determine if administration officials had perjured themselves in testimony to Congress. Her investigation concluded that there was insufficient evidence to charge anyone with perjury.
Politicization of hiring at the Department of Justice Attorney General Gonzales, in a confidential memorandum dated March 1, 2006, delegated authority to senior DOJ staff Monica Goodling and Kyle Sampson to hire and dismiss political appointees and some civil service positions.
On May 2, 2007, the Department of Justice announced two separate investigations into hirings conducted by Goodling: one by the department's inspector general, and a second by the Office of Professional Responsibility. In testimony before the House Judiciary Committee, on May 23, 2007, Goodling stated that she had "crossed the line" and broken civil service laws regulating hiring for civil service positions, and had improperly weighed political factors in assessing applicants.
According to a January 2009 Justice Department report, investigators found that Bradley Schlozman, as interim head of the Civil Rights Division at the Department of Justice, "favored applicants with conservative political or ideological affiliations and disfavored applicants with civil rights or human rights experience whom he considered to be overly liberal". The positions under consideration were not political, but career, for which the political and ideological views of candidates are not to be considered, according to federal law and guidelines.
In a letter of May 30, 2007, to the Senate Judiciary Committee, the United States Department of Justice Office of the Inspector General and Counsel for the Office of Professional Responsibility confirmed that they were expanding their investigation beyond "the removals of United States Attorneys" to include "DOJ hiring and personnel decisions" by Goodling and other Justice Department employees.
Dismissed attorneys and elections
The controversy surrounding the U.S. attorneys dismissals was often linked to elections or voter-fraud issues. Allegations were that some of the U.S. attorneys were dismissed for failing to instigate investigations damaging to Democratic politicians, or for failing to more aggressively pursue voter-fraud cases. Such allegations were made by some of the dismissed U.S. attorneys themselves to suggest reasons they may have been dismissed. The background to the allegations is the recent tendency for elections in parts of the United States to be very close; an election outcome can be affected by an announced investigation of a politician. It is explicit policy of the Department of Justice to avoid bringing voter-related cases during an election for this reason. In September 2008, the inspector general for the Department of Justice concluded that some of the dismissals were motivated by the refusal of some of the U.S. attorneys to prosecute voter fraud cases during the 2006 election cycle.
Fallout By mid-September 2007, nine senior staff of the Department of Justice associated with the controversy had resigned. The most prominent resignations include:
Attorney General Alberto Gonzales Deputy Attorney General Paul McNulty; Acting Associate Attorney General William W. Mercer resigned from the acting office prior to Senate confirmation hearings for the same position, and returned to his post as U.S. Attorney for Montana (he held dual positions); Chief of staff for the Attorney General Kyle Sampson Chief of Staff for the Deputy Attorney General Michael Elston; Director of the Executive Office for United States Attorneys (EOUSA) Michael A. Battle; the subsequently appointed Director to the EOUSA, Bradley Schlozman, also the former acting Assistant Attorney General for the Civil Rights Division; the Department of Justice's White House Liaison Monica Goodling
In June 2008, a grand jury was empaneled to consider criminal indictments against officials involved in the firings. The grand jury was presented evidence from ongoing investigations at the Department of Justice inspector general's office and at the DOJ's Office of Professional Responsibility.
Inspector General Report and special prosecutor On September 29, 2008 the Justice Department's Inspector General (IG) released a report on the matter that found most of the firings were politically motivated and improper. The next day Attorney General Michael Mukasey appointed Nora Dannehy as special prosecutor to decide whether criminal charges should be brought against Gonzales and other officials involved in the firings. The IG's report contained "substantial evidence" that party politics drove a number of the firings, and IG Glenn Fine said in a statement that Gonzales had "abdicated his responsibility to safeguard the integrity and independence of the department." The report itself stopped short of resolving questions about higher White House involvement in the matter, because of what it said were the refusal to cooperate of a number of key players, among them Karl Rove, Senator Pete Domenici and Harriet Miers and because the White House refused to hand over its documents related to the firings.
On July 21, 2010, Dannehy concluded that "there was insufficient evidence to establish that persons knowingly made material false statements to [the Office of Inspector General] or Congress or corruptly endeavored to obstruct justice" and that no criminal charges would be filed against Sampson or Gonzales.
Replacement of the U.S. attorneys
Initial planning On January 6, 2005, Colin Newman, an assistant in the White House counsels office, wrote to David Leitch stating, "Karl Rove stopped by to ask you (roughly quoting) 'how we planned to proceed regarding U.S. attorneys, whether we were going to allow all to stay, request resignations from all and accept only some of them or selectively replace them, etc.'". The email was then forwarded to Kyle Sampson, chief of staff to Attorney General Alberto Gonzales.
In reply, Sampson, then Department of Justice counsel to Attorney General John Ashcroft, wrote that it would be "weird to ask them to leave before completing at least a 4-year term", that they "would like to replace 15–20 percent of the current U.S. Attorneys" and that the rest "are doing a great job, are loyal Bushies, etc."
In March 2005, Sampson came up with a checklist. He rated each of the U.S. Attorneys with criteria that appeared to value political allegiance as much as job performance. He recommended retaining 'strong U.S. Attorneys who have ... exhibited loyalty to the President and Attorney General.' He suggested 'removing weak U.S. Attorneys who have ... chafed against Administration initiatives'.