The Facts Behind the U.S. Attorney Firings

Kyle Sampson, chief of staff to Atty. Gen. Al Gonzales, wrote an urgent note to White House Counsel Bill Kelly on May 11, 2006, warning that it was time to find potential replacements for U.S. Attorney Carol Lam.

In the note, Sampson referred to “[t]he real problem we have right now with Carol Lam that leads me to conclude that we should have someone ready to be nominated 11/18, the day her 4-year term expires,” wrote Sampson, whose recent resignation and testimony have fueled the controversy that may cause Gonzales’ downfall.

Among hundreds of pages of documentation, Democrats pointed to this email as the strongest indication of wrongdoing by the administration in the firing of eight U.S. attorneys last year. Lam, the U.S. attorney for the Southern District of California, had on the previous day notified the Justice Department of her intention to search the offices of a fired CIA official and a defense contractor who were deeply involved in the bribery scandal that brought down former Rep. Duke Cunningham (R.-Calif.).

Lam reportedly had another Republican lawmaker in her sights, Rep. Jerry Lewis (R.-Calif.). Democrats allege that Sampson’s email, coming when it did, suggests that the Department of Justice and the White House wanted to stop her corruption investigation for political reasons.

Political Interference

Despite rhetoric from some Democrats, the real issue behind the Justice Department’s firing of eight of the 93 U.S. attorneys has nothing to do with whether President Bush forced them out to make way for other, closer associates. Such personnel moves are well within the President’s prerogative when it comes to U.S. attorneys, who serve at his pleasure.

The firings only become problematic if the administration was actually trying to interfere with their ongoing corruption investigations for political reasons. Sampson’s May 10 email, therefore, made repeated appearances during the Senate Judiciary hearing last week, as senators questioned Gonzales’ former chief of staff. What was he referring to when he said that Justice had a “real problem” with Carol Lam?

Sampson testified that he was unaware of Lam’s decision to seek a search warrant against former CIA agent Dusty Foggo and contractor Brent Wilkes at the time he wrote the “real problem” e-mail. Sampson said that the “real problem” he was referring to was Lam’s failure to pursue the administration’s priorities in stepping up gun and immigration prosecutions.

When Justice officials discuss Lam’s work, they privately use words like “train wreck.” One reason is that the administration had prioritized enforcement of federal gun laws with a program called “Project Safe Neighborhoods,” and Lam appeared uninterested. According to statistics from the U.S. Sentencing Commission, Lam’s district had a staggeringly low number of firearms cases. As a 2006 DOJ memo details, other border districts — including South and West Texas, Arizona, and New Mexico — were prosecuting hundreds of gun cases every year, but Lam never brought more than 20 such cases in a single year between 2002 and 2005. In that last year, she brought just 12.

Meanwhile, as the political debate over immigration was heating up in 2006, the Bush Administration was trying to show that it was taking enforcement seriously. Yet Lam had been letting the number of immigration convictions in her district decline by more than 25 percent. The decline was precipitous enough that both Rep. Darryl Issa (R.-Calif.) and Sen. Dianne Feinstein (D.-Calif.) complained about Lam to the Justice Department. Feinstein was particularly strident in her condemnation of Lam’s work.

“I’m concerned that lax prosecution can endanger the lives of Border Patrol agents,” Feinstein wrote on June 15, 2006. “[B]ased on numbers provided to my office by the Bureau of Customs and Border Protection and the U.S. Sentencing Commission, in FY05 Border Patrol Agents apprehended 182,908 aliens along the border between U.S. and Mexico. Yet in 2005, the U.S. attorney’s office in southern California convicted only 387 aliens for alien smuggling and 262 aliens for illegal reentry after deportation. When looking at the rates of conviction from 2003 to 2005, the numbers of convictions fall by nearly half.”

After complaints from Feinstein and Rep. Darryl Issa (R.-Calif.), Lam’s name later appeared in an e-mail that Sampson sent on September 13, 2006, on a list of U.S. attorneys “We Now Should Consider Pushing Out.”

Despite her own involvement in Lam’s downfall, Feinstein changed her tune entirely in last week’s hearings. She even asserted, with the help of selective statistics, that Lam was an aggressive prosecutor with regard to immigration enforcement. “An accumulation study done by USA Today places Carol Lam as one of the top three attorneys in the United States for the prosecution of these cases,” said Feinstein.

Not only did Feinstein fail to mention her own letter from June, but she also glossed over the facts. Lam may have come in third over several years, but she was dead last in 2005 among the five U.S. attorneys (in border districts) who bear heavy immigration caseloads. As Issa observed in an online chat with a local San Diego newspaper on March 31, “Southern California even prosecuted 200 fewer immigration cases than the New Mexico office that is approximately half the size.”

Justice’s Problems

Still, Sampson testified that the Justice Department chose to push Lam out without ever bringing this deficiency to her attention. Asked whether anyone had discussed with Lam her failure to bring enough immigration cases, Sampson said, “No one to my knowledge talked to Carol Lam about the concerns that were had in the leadership of the department about her office’s illegal immigration enforcement.”

This is a sign of deeper problems within Justice, and it suggests that this controversy will not be going away any time soon. In fact, the failure to discuss it with Lam gives the impression that her firing was not immigration-related.

Moreover, neither Lam’s failure to secure immigration convictions nor Feinstein’s hypocrisy diminishes the administration’s poor handling of this situation, which originally created this scandal and gave Democrats the political opportunity they have not failed to exploit. Whatever the merits of firing Lam and the other U.S. attorneys in question, Deputy Atty . Gen. Paul McNulty positively invited controversy when he testified in February before the Senate Judiciary Committee and asserted that the firings had been “performance related” — a phrase that carries an implication of incompetence. This was an invitation to the attorneys in question to defend their reputations by disputing the administration’s account.

In fact, it would have been more accurate to say that the U.S. attorneys had been fired for “policy differences” with the President and the administration that had appointed them.

If Lam had chosen not to pursue the administration’s gun and immigration policies, the administration has offered similar explanations for five of the other U.S. attorney firings. Still, at least three of those also come with serious Democratic counter-explanations that suggest impropriety.

Paul Charlton, who was asked to step down as U.S. attorney in Arizona, had differed with the administration’s position on when to seek the death penalty. But Charlton was also reportedly in the midst of investigating a land deal by Rep. Rick Renzi (R.-Ariz.) when he was asked to step down, and Democrats have even suggested that his downfall was related to questions surrounding Rep. Jim Kolbe’s (R.-Ariz.) role in the page scandal of former Rep. Mark Foley (R.-Fla.).

U.S. attorneys in Washington (John McKay) and New Mexico (David Iglesias) were allegedly shown the door when they failed to pursue voter fraud and corruption cases against Democrats. This is more of a gray area, particularly since the cases in question were strong — a grand jury last week indicted two prominent Democratic politicians in the New Mexico case for stealing funds intended for construction of a courthouse. Even so, there remain questions as to whether Iglesias was fired for failing to release the information about Democratic corruption before the 2006 election, since it could have affected the outcome of a closely contested congressional race there.

Gonzales’ public statement of March 13 made the present situation far worse, because he appears to have been untruthful. Gonzales told the press that he “was not involved in seeing any memos, was not involved in any discussions about what was going on. That’s basically what I knew as the attorney general.”

This was flatly contradicted by Sampson, his former chief of staff, who testified voluntarily and under oath. “I don’t think the attorney general’s statement that he was not involved in any discussions about U.S. attorney removals was accurate,” Sampson told the judiciary committee. “The attorney general was aware of this process from the beginning in early 2005.”

Thanks to this apparent contradiction, the controversy is sure to rage on at least until Gonzales testifies before Congress on April 17.

(Watch Sunday’s Meet the Press coverage of the firings and testimonies here.)