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The DOJ IG/OPR Report on the U.S. Attorney Firings

By Jack M. Balkin

It's here (warning -- 392-page pdf file).

Who refused to be interviewed by the Inspector General? Karl Rove, Harriet Miers, former Deputy White House Counsel (and current Notre Dame law professor) William Kelley , Associate WH Counsel Richard Klingler, Senators Kit Bond and Pete Domenici, and Domenici's chief of staff. Is there any apparent justification for their refusals? No. And the White House refused to provide internal e-mails and documents, even though it conceded that there is no claim of executive privilege here. The Administration also refused to give the IG a memorandum about the scandal prepared by Associate Counsel Michael Scudder, even though the memorandum has been provided to OLC. (The Counsel's office eventually provided a redacted version that the IG calls "worthless.") The White House Counsel's office wrote in explanation that "we viewed the situation as in some sense analogous to civil discovery efforts to obtain an opponent's attorney work-product material." The Counsel's Office, in other words, views the investigating components of the Justice Department as analogous to "opponents" in civil litigation.

The Counsel's Office also wrote that "[o]ur disclosure was necessarily partial because, in our judgment, total, unqualified disclosure of all factual portions of the entire draft chronology would have an adverse impact on the effective provision of legal advice within the White House. That impact, as we perceived it, was not outweighed by OIG/OPR's need for the undisclosed information, at least to the extent we understood that need as articulated in our discussions with your office."

Of course, to the extent the draft chronology does not reflect any unlawful conduct, its disclosure would be unlikely to have any chilling effect on legitimate White House communications, and would assist the IG and OPR in understanding what happened here. And to the extent the chronology reveals unlawful conduct, there is no justification for the White House to keep such evidence secret in the first place. Not surprisingly, then, the IG and OPR do not agree with the rationales for the White House's refusals, which they conclude "hindered" their investigation.

The basic thrust of the Report, as I understand it, is that Kyle Sampson was acting in cahoots with the White House Counsel's Office to fire disfavored U.S. Attorneys -- at least some for possibly impermissible reasons -- and that AG Gonzales and others at DOJ therefore left the entire project up to Sampson, stepping in merely to rubberstamp whatever decisions he reached in accord with the Counsel's Office.

Important findings include:

[T]he statements provided by the Attorney General and other Department officials about the reasons for the removals were inconsistent, misleading, and inaccurate in many respects.

The most serious allegations that arose were that the U.S. Attorneys were removed based on improper political factors, including to affect the way they handled certain voter fraud or public corruption investigations and prosecutions. Our investigation found significant evidence that political partisan considerations were an important factor in the removal of several of the U.S. Attorneys. The most troubling example was David Iglesias, the U.S. Attorney in New Mexico. We concluded that complaints from New Mexico Republican politicians and party activists about Iglesias?s handling of voter fraud and public corruption cases caused his removal, and that the Department removed Iglesias without any inquiry into his handling of the cases.

However, we were unable to fully develop the facts regarding the removal of Iglesias and several other U.S. Attorneys because of the refusal by certain key witnesses to be interviewed by us, as well as by the White House?s decision not to provide internal White House documents to us. Therefore, we recommend that counsel specially appointed by the Attorney General work with us to conduct further investigation and ultimately to determine whether the totality of the evidence demonstrates that any criminal offense was committed.

* * * *

Gonzales acknowledged to us that he did not discuss with Sampson how to evaluate the U.S. Attorneys or which factors to consider. We found that Gonzales eventually approved the removals of a group of U.S. Attorneys without inquiring about the process Sampson used to select them for removal, or why each name was on Sampson?s removal list. Gonzales also did not know who Sampson had consulted with or what these individuals had said about each of the U.S. Attorneys identified for removal. Instead, Gonzales told us he ?assumed? that Sampson engaged in an evaluation process, that the resulting recommendations were based on performance, and that the recommendations reflected the consensus of senior managers in the Department. Each of those assumptions was faulty.

Gonzales also said he had little recollection of being briefed about Sampson?s review process as it progressed over a year and a half. He claimed to us and to Congress an extraordinary lack of recollection about the entire removal process. In his most remarkable claim, he testified that he did not remember the meeting in his conference room on November 27, 2006, when the plan was finalized and he approved the removals of the U.S. Attorneys, even though this important meeting occurred only a few months prior to his testimony.

This was not a minor personnel matter that should have been hard to remember. Rather, it related to an unprecedented removal of a group of high level Presidential appointees, which Sampson and others recognized would result in significant controversy. Nonetheless, Gonzales conceded that he exercised virtually no oversight of the project, and his claim to have very little recollection of his role in the process is extraordinary and difficult to accept.

We also found that Deputy Attorney General McNulty had little involvement in or oversight of the removal process, despite his role as the immediate supervisor of all U.S. Attorneys. McNulty was not even made aware of the removal plan until the fall of 2006. When McNulty learned about the plan, he thought it was a bad idea. However, he deferred to Sampson and did not raise his concerns with regard to the plan itself or, except in a couple of cases, the evaluation of specific U.S. Attorneys to be removed. Rather, he distanced himself from the project, both while it was ongoing and after it was implemented.

Moreover, we found that there was virtually no communication between Attorney General Gonzales and Deputy Attorney General McNulty about this important matter. Even when McNulty learned about the plan in the fall of 2006 (more than a year after Gonzales and Sampson initiated the removal process), he did not discuss any of his concerns about the plan with Sampson or Gonzales.

We found no evidence that Gonzales, McNulty, or anyone else in the Department carefully evaluated the basis for each U.S. Attorney?s removal or attempted to ensure that there were no improper political reasons for the removals.

Sampson was primarily responsible for creating the plan, selecting the U.S. Attorneys to be removed, and implementing the plan. He said he consulted with Department officials in informal settings to get their ?frank assessments? of U.S. Attorneys, and Sampson described himself as the ?aggregator? of their views. Sampson also testified that he had ?no independent basis? for removing any U.S. Attorney and that he relied on other Department officials, such as McNulty, Executive Office for U.S. Attorneys (EOUSA) Directors Mary Beth Buchanan and Michael Battle, and Associate Deputy Attorney General David Margolis to make recommendations about who should be removed. He said, ?[i]n my mind, they were the Department officials who would have reason to make informed judgments about who might be added to such a list.?

This claim was misleading. Neither Sampson nor anyone else in the Department ever engaged in a systematic assessment of the performance of U.S. Attorneys to determine who was underperforming and should be replaced.

Instead, Sampson?s evaluation process was casual, ad hoc, and anecdotal, and he did not develop any consensus from Department officials about which U.S. Attorneys should be removed.

* * * *

We believe that senior Department officials ? particularly the Attorney General and the Deputy Attorney ? abdicated their responsibility to safeguard the integrity and independence of the Department by failing to ensure that the removal of U.S. Attorneys was not based on improper political considerations.

* * * *

[W]e found evidence that complaints to Rove and others at the White House and the Department by New Mexico Republican political officials and party activists about how Iglesias was handling voter fraud cases and a public corruption case led to Iglesias?s removal.

* * * *

We recommend that a counsel specially appointed by the Attorney General assess the facts we have uncovered, work with us to conduct further investigation, and ultimately determine whether the evidence demonstrates that any criminal offense was committed with regard to the removal of Iglesias or any other U.S. Attorney, or the testimony of any witness related to the U.S. Attorney removals.

The Department?s removal of the U.S. Attorneys and the controversy it created severely damaged the credibility of the Department and raised doubts about the integrity of Department prosecutive decisions. We believe that this investigation, and final resolution of the issues raised in this report, can help restore confidence in the Department by fully describing the serious failures in the process used to remove the U.S. Attorneys and by providing lessons for the Department in how to avoid such failures in the future.

More -- much more -- to similar effect in the Report itself.

Full post as published by Balkinization on September 29, 2008 (boomark / email).