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35–798 PDF 2007

S. HRG. 110–61

PRESERVING PROSECUTORIAL INDEPENDENCE: IS

THE DEPARTMENT OF JUSTICE POLITICIZING

THE HIRING AND FIRING OF U.S. ATTORNEYS?

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

FEBRUARY 6, 2007

Serial No. J–110–10

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MICHAEL O’NEILL, Republican Chief Counsel and Staff Director 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 6

prepared statement .......................................................................................... 64

Hatch, Hon. Orrin G., a U.S Senator from the State of Utah ............................. 6

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts, 

prepared statement .............................................................................................. 79

Schumer, Hon. Charles E., a U.S. Senator from the State of New York ............ 1

prepared statement .......................................................................................... 94

Specter, Hon. Arlen, a U.S. Senator from the state of New Yory ........................ 4

WITNESSES 

Gerson, Stuart M., Partner, Epstein, Becker & Green, Washington, D.C. ......... 50

Levenson, Laurie L., Professor of Law, William M. Rains Fellow and, Director, Loyola Center for Ethical Advocacy, Loyola Law School, Los Angeles, 

California .............................................................................................................. 47

McNulty, Paul J., Deputy Attorney General, Department of Justice, Washington, D.C. ........................................................................................................... 13

Pryor, Hon. Mark, a U.S. Senator from the State of Arkansas ........................... 7

White, Mary Jo, Partner, Debevoise & Plimpton, LLP, New York, New York .. 45

QUESTIONS AND ANSWERS 

Responses of Paul McNulty to questions submitted by Senators Kennedy 

and Schumer ......................................................................................................... 57

SUBMISSIONS FOR THE RECORD 

Gerson, Stuart M., Partner, Epstein, Becker & Green, Washington, D.C., 

prepared statement .............................................................................................. 66

Levenson, Laurie L., Professor of Law, William M. Rains Fellow and, Director, Loyola Center for Ethical Advocacy, Loyola Law School, Los Angeles, 

California, prepared statement ........................................................................... 81

McNulty, Paul J., Deputy Attorney General, Department of Justice, Washington, D.C., prepared statement ....................................................................... 86

White, Mary Jo, Partner, Debevoise & Plimpton, LLP, New York, New York, 

prepared statement .............................................................................................. 99

(1)

PRESERVING PROSECUTORIAL INDEPENDENCE: IS THE DEPARTMENT OF JUSTICE 

POLITICIZING THE HIRING AND FIRING OF 

U.S. ATTORNEYS? 

TUESDAY, FEBRUARY 6, 2007

UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, D.C. 

The Committee met, Pursuant to notice, at 9:37 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Charles E. Schumer, 

presiding. 

Present: Senators Schumer, Feinstein, Feingold, Cardin, 

Whitehouse, Specter, Hatch, Sessions, and Cornyn. 

OPENING STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. 

SENATOR FROM THE STATE OF NEW YORK 

Senator SCHUMER. Good morning and welcome to the first hearing of our Administrative Law and Courts Subcommittee, and we—

oh, this is a full Committee hearing, I am just informed. Power has 

already gone to his head. 

I am reminded of that old Woody Allen movie, remember? Anyway, we will save that for another time. 

Anyway, I will give an opening statement. Then Senator Specter 

will, and any others who wish to give opening statements are welcome to do so. 

Well, we are holding this hearing because many members of this 

Committee, including Chairman Leahy, who had hoped to be here 

but is speaking on the floor at this time, have become increasingly 

concerned about the administration of justice and the rule of law 

in this country. 

I have observed, with increasing alarm, how politicized the Department of Justice has become. 

I have watched, with growing worry, as the Department has increasingly based hiring on political affiliation, ignored the recommendations of career attorneys, focused on the promotion of political agendas, and failed to retain legions of talented career attorneys. 

I have sat on this Committee for 8 years and, before that, on the 

House Judiciary Committee for 16. 

During those combined 24 years of oversight over the Department of Justice—through seven presidential terms, including three 

Republican Presidents—I have never seen the Department more 

2

politicized and pushed further away from its mission as an apolitical enforcer of the rule of law. 

And now, it appears even the hiring and firing of our top Federal 

prosecutors has become infused and corrupted with political, rather 

than prudent, considerations. Or at least, there is a very strong appearance that this is so. 

For 6 years, there has been little or no oversight of the Department of Justice on matters like these. Those days are now over. 

There are many questions surrounding the firing of a slew of 

U.S. Attorneys. I am committed to getting to the bottom of those 

questions. If we do not get the documentary information that we 

seek, I will consider moving to subpoena that material, including 

performance evaluations and other documents. 

If we do not get forthright answers to our questions, I will consider moving to subpoena one or more of the fired U.S. Attorneys 

so that the record is clear. 

So, with that in mind, let me turn to the issue at the center of 

today’s hearing. Once appointed, U.S. Attorneys, perhaps more 

than any other public servant, must be above politics and beyond 

reproach. They must be seen to enforce the rule of law without fear 

or favor. They have enormous discretionary power, and any doubt 

as to their impartiality and their duty to enforce the rule of law 

puts seeds of poison in our democracy. 

When politics unduly infects the appointment and removal of 

U.S. Attorneys, what happens? Cases suffer. Confidence plummets. 

And corruption has a chance to take root. 

And what has happened here over the last 7 weeks is nothing 

short of breathtaking. 

Less than 2 months ago, seven or more U.S. Attorneys reportedly 

received an unwelcome Christmas present. As the Washington Post 

reports, those top Federal prosecutors were called and terminated 

on the same day. 

The Attorney General and others have sought to deflect criticism 

by suggesting that these officials all had it coming because of poor 

performance, that U.S. Attorneys are routinely removed from office, 

and that this was only business as usual. 

But what happened here does not sound like an orderly and natural replacement of underperforming prosecutors; it sounds more 

like a purge. 

What happened here does not sound like business as usual; it appears more reminiscent of a different sort of Saturday Night Massacre. 

Here is what the record shows: Several U.S. Attorneys were apparently fired with no real explanation. Several were seemingly removed merely to make way for political up- and-comers. One was 

fired in the midst of a successful and continuing investigation of 

lawmakers. Another was replaced with a pure partisan of limited 

prosecutorial experience, without Senate confirmation. And all of 

this, coincidentally, followed a legal change—slipped into the PATRIOT Act in the dead of night—which for the first time in our history gave the Attorney General the power to make indefinite interim appointments and to bypass the Senate altogether. 

3

We have heard from prominent attorneys—including many Republicans—who confirm that these actions are unprecedented, 

unnerving, and unnecessary. Let me quote a few. 

The former San Diego U.S. Attorney, Peter Nunez, who served 

under President Reagan, said, ‘‘[This] is like nothing I’ve ever seen 

before in 35-plus years.’’ He went on to say that while the President has the authority to fire a U.S. Attorney for any reason, it is 

‘‘extremely rare’’ unless there is an allegation of misconduct. 

Another former U.S. Attorney and head of the National Association of Former U.S. Attorneys said members of his group were in 

‘‘shock’’ over the purge, which ‘‘goes against all tradition.’’ 

The Attorney General, for his part, has flatly denied that politics 

has played any part in the firings. At a Judiciary Committee hearing last month he testified that: ‘‘I would never, ever make a 

change in a U.S. Attorney position for political reasons.’’ 

And yet, the recent purge of top Federal prosecutors reeks of politics. An honest look at the record reveals that something is rotten 

in Denmark. 

In Nevada, where U.S. Attorney Daniel Bogden was reportedly 

fired, a Republican source told the press that ‘‘the decision to remove U.S. Attorneys...was part of a plan to ‘give somebody else 

that experience’’’—this is a quote—‘‘to build up the back bench of 

Republicans by giving them high-profile jobs.’’ That was in the Las 

Vegas Review-Journal on January 18th. 

In New Mexico, where U.S. Attorney David Iglesias was reportedly fired, he has publicly stated that when he asked why he was 

asked to resign, he ‘‘wasn’t given any answers.’’ 

In San Diego, where U.S. Attorney Carol Lam was reportedly 

fired, the top-ranking FBI official in San Diego said: ‘‘I guarantee 

politics is involved.’’ And the former U.S. Attorney under President 

Reagan said, ‘‘It really is outrageous.’’ 

Ms. Lam, of course, was in the midst of a sweeping public investigation of ‘‘Duke’’ Cunningham and his co-conspirators, and her office has outstanding subpoenas to three House committees. 

Was her firing a political retaliation? There is no way to know. 

But the Department of Justice should go out of its way to avoid 

even the appearance of impropriety. That is not too much to ask. 

And as I have said, the appearance here, given all the circumstances, is plain awful. 

Finally, in Arkansas, where U.S. Attorney Bud Cummins was 

forced out, there is not a scintilla of evidence that he had any blemish on his record. In fact, he was well respected on both sides of 

the aisle and was in the middle of a number of important investigations. 

His sin? Occupying a high-profile position that was being eyed by 

an ambitious acolyte of Karl Rove, who had minimal Federal prosecution experience, but was highly skilled at opposition research 

and partisan attacks for the Republican National Committee. 

Among other things, I look forward to hearing the Deputy Attorney General explain to us this morning how and why a well-performing prosecutor in Arkansas was axed in favor of such a partisan warrior. What strings were pulled and what influence was 

brought to bear? 

4

In June of 2006, when Karl Rove himself was still being investigated by a U.S. Attorney, was he brazenly leading the charge to 

oust a sitting U.S. Attorney and install his own former aide? We 

do not know, but maybe we can find out. 

Now, I ask, is this really how we should be replacing U.S. Attorneys in the middle of a Presidential term? 

No one doubts the President has the legal authority to do it, but 

can this build confidence in the Justice Department? Can this build 

confidence in the administration of justice? 

[The prepared statement of Senator Schumer appears as a submission for the record.] 

I yield to my colleague from Pennsylvania. 

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Senator SPECTER. Thank you, Mr. Chairman. 

I concur with Senator Schumer that the prosecuting attorney is 

obligated to function in a nonpolitical way. The prosecuting attorney is a quasi-judicial official. He is part judge and part advocate, 

and the power of investigation and indictment and prosecution in 

criminal courts is a tremendous power. And I know it very well because I was the district attorney of a big, tough city for 8 years and 

an assistant district attorney for 4 years before that. And the 

phrase in Philadelphia, perhaps generally, was that the district attorney has the keys to the jail in his pocket. Well, if you have the 

keys to the jail, that is a lot of power. 

But let us focus on the facts as opposed to generalizations, and 

I and my colleagues on the Republican side of the aisle will cooperate in finding the facts, if the facts are present. But let’s be cautious about the generalizations, which we heard a great many of 

in the Chairman’s opening remarks. If a U.S. Attorney was fired 

in retaliation for what was done in the prosecution of former Congressman Cunningham, that is wrong. And that is wrong even 

though the President has the power to terminate U.S. Attorneys. 

But the U.S. Attorneys cannot function if they are going to be 

afraid of the consequences of a vigorous prosecution. 

When Senator Schumer says that the provision was insert into 

the PATRIOT Act in the dead of night, he is wrong. That provision 

was in a conference report which was available for examination for 

some 3 months. The first I found out about the change in the PATRIOT Act occurred a few weeks ago when Senator Feinstein approached me on the floor and made a comment about two U.S. Attorneys who were replaced under the authority of the change in 

law in the PATRIOT Act which altered the way U.S. Attorneys are 

replaced. Prior to the PATRIOT Act, U.S. Attorneys were replaced 

by the Attorney General for 120 days and then appointments by 

the court, or the First Assistant succeeded to the position of U.S. 

Attorney. And the PATRIOT Act gave broader powers to the Attorney General to appoint replacement U.S. Attorneys. 

I then contacted my very able chief counsel, Michael O’Neill, to 

find out exactly what had happened, and Mr. O’Neill advised me 

that the requested change had come from the Department of Justice; that it had been handled by Brett Tolman, who is now the 

U.S. Attorney for Utah; and that the change had been requested 

5

by the Department of Justice because there had been difficulty 

with the replacement of a U.S. Attorney in South Dakota, where 

the court made a replacement which was not in accordance with 

the statute, had not been a prior Federal employee and did not 

qualify. And there was also concern because in a number of districts, the courts had questioned the propriety of their appointing 

power because of separation of powers. And as Mr. Tolman explained it to Mr. O’Neill, those were the reasons, and the provision 

was added to the PATRIOT Act and, as I say, was open for public 

inspection for more than 3 months while the conference report was 

not acted on. 

If you will recall, Senator Schumer came to the floor on December 16th, said he had been disposed to vote for the PATRIOT Act, 

but had changed his mind when the New York Times disclosed the 

secret wiretap program, electronic surveillance. 

May the record show that Senator Schumer is nodding in the affirmative. There is something we can agree on. In fact, we agree 

sometimes in addition. Well, the conference report was not acted on 

for months, and at that time this provision was subject to review. 

Now, I read in the newspaper that, ‘‘The Chairman of the Judiciary Committee, Arlen Specter, slipped it in.’’ And I take umbrage 

and offense to that. I did not slip it in, and I do not slip things in. 

That is not my practice. If there is some item which I have any 

idea is controversial, I tell everybody about it. That is what I do. 

So I found it offensive to have the report of my slipping it in, that 

is how it got into the bill. 

Now, I have talked about the matter with Senator Feinstein, and 

I do agree that we ought to change it back to where it was before. 

She and I, I think, will be able to agree in the executive session 

on Thursday. And let’s be candid about it. The atmosphere in 

Washington, D.C., is one of high-level suspicion. There is a lot of 

suspicion about the executive branch because of what has happened with signing statements, because of what has happened with 

the surveillance program. And there is no doubt, because it has 

been explicitly articulated—maybe ‘‘articulate’’ is a bad word these 

days—especially stated by ranking Department of Justice officials 

that they want to increase—executive branch officials that they 

want to increase executive power. 

So we live in an atmosphere of high-level suspicion, and I want 

to see this inquiry pursued on the items that Senator Schumer has 

mentioned. I do not want to see a hearing and then go on to other 

business. I want to see it pursued in each one of these cases and 

see what actually went on, because there are very serious accusations that are made, and if they are true, there ought to be very, 

very substantial action taken in our oversight function. And if they 

are false, then the accused ought to be exonerated. 

But the purpose of the hearing, which can be accomplished, I 

think, in short order, is to change the PATRIOT Act so that this 

item is not possible for abuse. And in that I concur with Senator 

Feinstein and Senator Leahy and Senator Schumer, and the pursuit of political use of the Department is something that I also will 

cooperate in eliminating, if, in fact, it is true. 

Thank you, Mr. Chairman. 

Senator SCHUMER. Thank you, Senator Specter. 

6

Senator Feingold? 

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. Thank you, Mr. Chairman, for holding the 

hearing. I have to chair the Africa Subcommittee of the Foreign Relations Committee at 10 o’clock, and I was hoping to give an opening statement. But I am very pleased not only with your statement 

but, frankly, with Senator Specter’s statement as well because it 

sounds to me like there is going to be a bipartisan effort to fix this. 

I also have strong feelings about what was done here, but it sounds 

like there is a genuine desire to resolve this. So in that spirit and 

in light of the fact that I have to go anyway, Mr. Chairman, I am 

just going to ask that my statement be put in the record. 

Senator SCHUMER. Without objection. 

[The prepared statement of Senator Feingold appears as a submission for the record.] 

Senator SCHUMER. Senator Hatch? 

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 

THE STATE OF UTAH 

Senator HATCH. Thank you, Mr. Chairman. I appreciate it. I 

have appreciated both of your statements, too. I do not agree fully 

with either statement. 

First of all, the U.S. Attorneys serve at the pleasure of the President, whoever the President may be, whether it is a Democrat or 

Republican. You know, the Department of Justice has repeatedly 

and adamantly stated that U.S. Attorneys are never removed or 

encouraged to resign in an effort to retaliate against them or interfere with investigations. Now, this comes from a Department whose 

mission is to enforce the law and defend the interests of the United 

States. Now, are we supposed to believe and press their efforts 

when it comes to outstanding criminal cases and investigations 

which have made our country a safer place, but then claim that 

they are lying when they tell us about their commitment to appoint 

proper U.S. Attorneys? I personally believe that type of insinuation 

is completely reckless. 

Now, if, in fact, there has been untoward political effort here, 

then I would want to find it out just like Senators Schumer and 

Specter have indicated here. As has been said many times, U.S. Attorneys serve at the pleasure of the President. I remember when 

President Clinton became President. He dismissed 93 U.S. Attorneys, if I recall it correctly, in 1 day. That was very upsetting to 

some of my colleagues on our side. But he had a right to do it. And, 

frankly, I do not think anybody should have said he did it purely 

for political reasons, although I do not think you can ever remove 

all politics from actions that the President takes. 

The President can remove them for any reason or no reason 

whatsoever. That is the law, and it is very clear. The U.S. Code 

says that, ‘‘Each United States Attorney is subject to removal by 

the President.’’ It does not say that the President has to give explanations. It does not say that the President has to get permission 

from Congress. And it does not say that the President needs to 

grant media interviews giving full analysis of his personal deciVerDate 0ct 09 2002 14:41 Jun 19, 2007 Jkt 035798 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\35798.TXT SJUD1 PsN: CMORC
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sions. Perhaps critics should seek to amend the Federal Code and 

require these types of restrictions on the President’s authority, but 

I would be against that. 

Finally, I want to point out that the legislation that we are talking about applies to whatever political party is in office. The law 

does not say that George Bush is the only President who can remove U.S. Attorneys. And the law does not say that Attorney Generals appointed by a Republican President have interim appointment authority. The statutes apply to whoever is in office, no matter what political party. 

Now, I remember with regard to interim U.S. Attorneys that an 

interim appointed during the Clinton served for 8 years in Puerto 

Rico and was not removed. 

Now, you know, I for one do not want judges appointing U.S. Attorneys before whom they have to appear. That is why we have the 

executive branch of Government. 

Now, I will be interested if there is any evidence that impropriety has occurred or that politics has caused the removal of otherwise decent, honorable people. And I am talking about pure politics because, let’s face it, whoever is President certainly is going to 

be—at least so far, either a Democrat or a Republican in these 

later years of our Republic. 

So these are important issues that are being raised here, but as 

I understand it, we are talking about seven to nine U.S. Attorneys, 

some of whom—we will just have to see what people will have to 

say about it. But I am going to be very interested in the comments 

of everybody here today. It should be a very, very interesting hearing, but I would caution people to reserve your judgment. If there 

is an untoward impropriety, by gosh, we should come down very 

hard against it. But this is not abnormal for Presidents to remove 

U.S. Attorneys and replace them with interims. And there are all 

kinds of problems, even with that system as it has worked, because 

sometimes we in the Judiciary Committee do not move to confirmations like we should as well either. 

So there are lots of things that you could find faults with, but 

let’s be very, very careful before we start dumping this in the 

hands of Federal judges, most of whom I really admire regardless 

of their prior political beliefs. 

Thank you, Mr. Chairman. 

Senator SCHUMER. Thank you, Senator Hatch. 

Senator Cardin had to leave. Senator Whitehouse, do you want 

to make an opening statement? No? Okay. Thank you for coming. 

Our first witness—and I know he has a tight schedule; I appreciate him being here—this time is our hard-working friend from 

Arkansas, Senator Mark Pryor. Senator Pryor? 

STATEMENT OF HON. MARK L. PRYOR, A U.S. SENATOR FROM 

THE STATE OF ARKANSAS 

Senator PRYOR. Mr. Chairman, thank you, and I also want to 

thank all the members of the Committee. I have come here today 

to talk about events that occurred regarding the appointment of 

the Interim U.S. Attorney for the Eastern District of Arkansas, 

which I believe raise serious—

8

Senator SCHUMER. Senator, If you could just pull the mike a little closer. 

Senator PRYOR. I believe raise serious concerns over the administration’s encroachment on the Senate’s constitutional responsibilities. I am not only concerned about this matter as a Member of 

the Senate, but as a former practicing lawyer in Arkansas and 

former Attorney General of my State, I know the Arkansas Bar 

well, and all appointments that impact the legal and judicial arena 

in Arkansas are especially important to me. 

Moreover, due to the events of the past Congress, I have given 

much thought as to what my role as a Senator should be regarding 

executive and judicial nominations. I believe the confirmation is as 

serious as anything that we do in Government. 

You know my record. I have supported almost all of the President’s nominations. On occasion, I have felt they were unfairly 

criticized for political purposes, for when I consider a nominee, I 

use a three-part test: First, is the nominee qualified? Second, does 

the nominee possess the proper temperament? Third, will the nominee be fair and impartial? In other words, can they check their political views at the door? 

Executive branch nominees are different from judicial nominees 

in many ways, but U.S. Attorneys should be held to a high standard of independence. In other words, they are not inferior officers, 

as defined by the U.S. Supreme Court. All U.S. Attorneys must 

pursue justice. Wherever a case takes them, they should protect 

our Republic by seeing that justice is done. Politics has no place in 

the pursuit of justice. 

This was my motivation in helping form the Gang of 14. I have 

tried very hard to be objective in my dealings with the President’s 

nominations, including his nominations to the U.S. Supreme Court. 

I want the process to work in the best traditions of the Senate and 

in the best traditions of our democracy. In fact, I have been accused 

on more than one occasion of being overly fair to the President’s 

nominations. 

It is with this background that I state my belief that recent 

events relating to U.S. Attorney dismissals and replacements are 

unacceptable and should be unacceptable to all of us. 

Now I would like to speak specifically about the facts that occurred regarding the U.S. Attorney replacement for the Eastern 

District of Arkansas. 

In the summer of 2006, my office was told by reliable sources in 

the Arkansas legal and political community that then-U.S. Attorney Bud Cummins was resigning and the White House would 

nominate Mr. Tim Griffin as his replacement. I asked the reasons 

for Mr. Cummins’s leaving and was informed that he was doing so 

to pursue other opportunities. 

My office was later told by the administration that he was leaving on his own initiative and that Mr. Tim Griffin would be nominated. I did not know Mr. Griffin, but I spoke to him by telephone 

in August 2006 about his potential nomination. I told him that I 

know many lawyers in the State, but I knew very little about his 

legal background. In other words, I did not know if he was qualified or if he had the right temperament or if he could be fair and 

impartial. I informed him that I would have trouble supporting him 

9

until the Judiciary Committee had reviewed these issues. I told 

him if he were to be nominated that I would evaluate my concerns 

in light of the Committee process. 

It should be noted that around this time it was becoming clear 

that Mr. Cummins was being forced out, contrary to what my office 

had been told by the administration. 

Some time after the interview with Mr. Griffin, I learned that 

there were newspaper accounts regarding his work on behalf of the 

Republican National Committee about efforts that have been categorized as ‘‘caging African-American votes.’’ This arises from allegations that Mr. Griffin and others in the RNC were targeting African-Americans in Florida for voter challenges during the 2004 

Presidential campaign. 

I specifically addressed this issue to Mr. Griffin in a subsequent 

meeting. When I questioned him about this, he provided an account 

that was very different from the allegation. However, I informed 

him that due to the seriousness of the issue, this is precisely the 

reason why the nomination and confirmation process is in place. I 

told him I would not be comfortable until this Committee had thoroughly examined his background. Given my concerns over this potential nominee, I, as well as others, protested and Mr. Cummins 

was allowed to stay until the end of the year. 

Rumors began to circulate in October of 2006 that the White 

House was going to make a recess appointment, which, of course, 

I found troubling. This rumor was persistent in the Arkansas legal 

and political community. 

I called the White House on December 13, 2006, to express my 

concerns about a recess appointment and spoke to then-White 

House Counsel Harriet Miers. She told me that she would get back 

to me on this matter. I also called Attorney General Gonzales expressing my reservations, and he informed me that he would get 

back to me as well. 

Despite expressing my concerns about a recess appointment to 

the White House and to the Attorney General, 2 days later, on December 15, 2006, Ms. Miers informed me that Mr. Griffin was their 

choice. Also on that same day, General Gonzales confirmed that he 

was going to appoint Mr. Griffin as an interim U.S. Attorney. Subsequently, my office inquired about the legal authority for the appointment and was informed it was pursuant to the amended statute in the PATRIOT Act. 

Before I say any more, I need to tell the Committee that I respect and like General Gonzales. I supported his confirmation to be 

Attorney General. I have always found him to be a straight shooter. And even though I disagree with him on this decision, it has 

not changed my view of him. I suspect he is only doing what he 

has been told to do. 

On December 20, 2006, Mr. Cummins’s tenure as U.S. Attorney 

was over. On that same day, Mr. Griffin was appointed Interim 

U.S. Attorney for the Eastern District of Arkansas. The timing was 

controlled by the administration. 

On January 11, 2007, I wrote a letter to General Gonzales outlining my objections with regard to this appointment. First, I made 

clear my concern as to how Mr. Cummins was summarily dismissed. Second, I outlined my amazement as to the excuse given 

10

as the reason for the interim appointment, which was due to the 

First Assistant being on maternity leave. Third, I objected to the 

circumventing of the Senate confirmation process. The Attorney 

General’s office responded on January 31, 2007, denying any discrimination or wrongdoing. I will address these issues now. 

As more light was shed on the situation in Arkansas, it became 

clear that Bud Cummins was asked to resign without cause so that 

the White House could reward the Arkansas post to Mr. Griffin. 

Mr. Cummins confirmed this on January 13, 2007, in an article in 

the Arkansas Democrat Gazette newspaper wherein he said he had 

been asked to step down so that the White House could appoint another person. By all accounts, Mr. Cummins’s performance has 

been fair, balanced, professional, and just. Lawyers on both sides 

of the political spectrum have nothing but positive things to say 

about Mr. Cummins’s performance. 

During his tenure, he established a highly successful Anti-Terrorism Advisory Council that brought together law enforcement at 

all levels for terrorism training. In the area of drug prosecutions, 

he continued the historic levels of quality, complex, and significant 

Organized Crime, Drug Enforcement Task Force drug prosecutions. 

He also increased Federal firearm prosecutions, pursued public corruption and cyber crime investigations that led to lengthy prison 

sentences for those convicted. 

In addition, I understand that his performance evaluations were 

always exceptional. On this last point, I would ask the Committee 

to try to gather the service evaluations of Mr. Cummins and the 

other dismissed U.S. Attorneys to determine how they were perceived by the Justice Department as having performed their jobs. 

The reason I am reciting Mr. Cummins’s performance record is 

that it stands in stark contrast to General Gonzales’ testimony before this Committee when he stated, ‘‘Some people should view it 

as a sign of good management. What we do is make an evaluation 

about the performance of individuals, and I have responsibility to 

the people in your districts that we have the best possible people 

in these positions. And that is the reason why changes sometimes 

have to be made. Although there are a number of reasons why 

changes get made and why people leave on their own, I think I 

would never, ever make a change in a United States Attorney position for political reasons or if it would in any way jeopardize an ongoing, serious investigation. I just would not do it.’’ 

The Attorney General then refused to say why Mr. Cummins was 

told to leave; however, it is my understanding that in other cases 

around the country, Justice Department officials have disclosed 

their reasoning for firing other U.S. Attorneys. The failure to acknowledge that Bud Cummins was told to leave for a purely political reason is a great disservice to someone who has been loyal to 

the administration and who performed his work admirably. 

I have discussed in detail the events surrounding Mr. Cummins’s 

dismissal. Now I would like to discuss the very troubling pretense 

for Mr. Griffin’s appointment to Interim U.S. Attorney over the 

First Assistant U.S. Attorney in the Little Rock office. 

The Justice Department advised me that normally the First Assistant U.S. Attorney is selected for the acting appointment while 

the White House sends their nominee through the Senate confirmaVerDate 0ct 09 2002 14:41 Jun 19, 2007 Jkt 035798 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\35798.TXT SJUD1 PsN: CMORC
11

tion process. This is based on 5 U.S.C. Section 3345(a)(1). However, 

in this case, the Justice Department confirmed that the First Assistant was passed over because she was on maternity leave. This 

was the reason given to my chief of staff as well as comments by 

the Justice Department spokesman Brian Roehrkasse—and I am 

not sure if I pronounced that name correctly—wherein he was 

quoted in newspapers as saying, ‘‘When the U.S. Attorney resigns, 

there is a need for someone to fill that position.’’ He noted that, 

‘‘Often the First Assistant U.S. Attorney in the affected district will 

serve as the Acting U.S. Attorney until the formal nomination process begins for a replacement. But in this case, the First Assistant 

is on maternity leave.’’ That is what he said. 

In addition, this reason was given to me specifically by a Justice 

Department liaison in a meeting in my office. In my letter to the 

Attorney General, I stated that while this may or may not be actionable in a public employment setting, it clearly would be in a 

private employment setting. Of all the agencies in the Federal Government, the Justice Department should not hold this view of pregnancy and motherhood in the workplace. I call this a pretense because it has become clear that Mr. Griffin was always the choice 

to replace Mr. Cummins. 

Before I close, let me address the circumvention of the Senate’s 

confirmation process. General Gonzales has said that it is his intention to nominate all U.S. Attorneys, but that does not hold 

water in Arkansas. For 7 months now, the administration has 

known of the departure of Mr. Cummins. Remember, they created 

his departure. It has now been 49 days since Bud Cummins was 

ousted without cause. If they were serious about the confirmation 

process, I cannot believe that it would have taken so long to nominate someone. 

Now, to be fair, in my most recent telephone call with General 

Gonzales, he asked me whether I would support Tim Griffin as my 

nominee for this position. I have thought long and hard about this, 

and the answer is I cannot. If nominated, I would do everything I 

could to make sure he has an opportunity to tell his side of the 

story regarding all allegations and concerns to the Committee, and 

I would ask the Committee to give Mr. Griffin a vote as quickly as 

possible. It is impossible for me to say that I would never support 

his nomination because I do not know all the facts. That is why we 

have a process in the Senate. 

I know I would never consider him as my nominee because I just 

know too many other lawyers who are more qualified, more experienced, and more respected by the Arkansas Bar. I will advise General Gonzales about this decision shortly. 

Regardless of the situation in Arkansas, I am convinced that this 

should not happen again. I am also convinced that the administration and maybe future administrations will try to bypass the Senate unless we change this law. I do not say this lightly. Already, 

a challenge has been made to the appointment of Mr. Griffin in Arkansas as violating the U.S. Constitution because it bypassed Senate confirmation. While I have not reviewed the pleadings filed in 

this case—I believe it is a capital murder case. I do not know all 

the situation there. While I have not reviewed the pleadings there, 

I have read a recent article in the Arkansas Democrat Gazette that 

12

concerns me. It is reported that, ‘‘Because United States Attorneys 

are inferior officers, the Appointments Clause of the Constitution 

expressly permits Congress to vest their appointments in the Attorney General and does not require the advice and consent of the 

Senate before they are appointed.’’ 

Please do not miss this point. The Justice Department has now 

pleaded in court that U.S. Attorneys as a matter of constitutional 

law are not subject to the advice and consent of the United States 

Senate. 

After a thorough review by this Committee, I hope that you will 

reach the same conclusion I have, which is this: No administration 

should be able to appoint U.S. Attorneys without proper checks and 

balances. This is larger than party affiliation or any single appointment. This touches our solemn responsibility as Senators. 

I hope this Committee will address it by voting for S. 214, which 

I join in offering along with Senators Feinstein and Leahy. 

Thank you, Mr. Chairman. 

Senator SCHUMER. Thank you very much, Senator Pryor, for your 

really outstanding testimony, and we will pursue many of the 

things you bring up. 

I know that you have a busy schedule, and I would ask the indulgence of the Committee that if we have questions of Senator Pryor, 

we submit them in writing. Would that be okay? 

Senator SPECTER. Well, Mr. Chairman, may I just ask one or two 

questions? 

Senator PRYOR. Sure. 

Senator SCHUMER. Thank you. 

Senator SPECTER. Senator Pryor, do you think that Mr. Griffin 

is not qualified for the job? 

Senator PRYOR. It is hard for me to say whether he is or isn’t 

because I just know so little about his background. When I met 

with him, we talked about this, and I told him that it was my sincere hope that they nominate him so he could go through the process here. But it is impossible for me to say whether he is or is not 

because I know so little about him. 

And just by way of background on him—and this is probably 

more detail than the Committee wants—he went to college in Arkansas and then he went off to Tulane Law School in Louisiana, 

and then more or less he did not come back to the State. I think 

he did maybe a year of practice in the U.S. Attorney’s Office at 

some point. But basically his professional life has been mostly outside the State. So he has come back in, and the legal community 

just does not know him. 

Senator SPECTER. Well, fair enough. You think it ought to be a 

matter for the Committee. I think that is the traditional way. 

Senator PRYOR. Certainly. 

Senator SPECTER. Did you think that his having worked for the 

Republican National Committee, RNC, or that he may be a protege 

of Karl Rove is relevant in any way as to his qualifications? 

Senator PRYOR. To me it is not relevant. I think we call come to 

these various positions with different backgrounds, and certainly if 

someone works for a political committee or a politician or an administration, that does not concern me. Some of the activities that 

he may have been involved in do raise concerns. However, when I 

13

talked to him about that, he offered an explanation, like I said, 

that was very different than the press accounts of what he did. And 

here, again, that takes me back to the process. That is why we 

have a process. Let him go through the Committee. Let you all and 

your staffs look at it. Let everybody evaluate that and see what the 

true facts are. 

Senator SPECTER. Well, fair enough. The activities may bear, his 

conduct bears on his qualifications, but just the fact of working for 

the Republican National Committee and for Karl Rove is not a disqualifier. 

Senator PRYOR. Not in my mind it is not. 

Senator SPECTER. Thank you very much for coming in. 

Senator PRYOR. We know how busy you are, and you have made 

a very comprehensive analysis, and it is very helpful to have a Senator appear substantively. So thank you. 

Senator PRYOR. Thank you. 

Senator SCHUMER. Thank you, Senator Pryor. 

Any further questions? 

[No response.] 

Senator SCHUMER. Thank you so much. 

Okay. Our next witness is the Honorable Paul J. McNulty. He 

is the Deputy Attorney General of the United States. He has spent 

almost his entire career as a public servant with more than two 

decades of experience in government at both the State and Federal 

levels. Just personally, Paul and I have known each other. When 

he served in the House, I knew him well. We worked together on 

the House Judiciary Committee. He is a man of great integrity. I 

have a great deal of faith in him and his personality and who he 

is and what he does. From 2001 to 2006, of course, he served as 

U.S. Attorney for the Eastern District of Virginia. 

And now would you please stand, Deputy Attorney General 

McNulty, so that I may administer the oath of office? Do you swear 

that the testimony you are about to give before the Committee will 

be the truth, the whole truth, and nothing but the truth, so help 

you God? 

Mr. MCNULTY. I do. 

Senator SCHUMER. Thank you. You may proceed with your statement. 

STATEMENT OF PAUL J. MCNULTY, DEPUTY ATTORNEY 

GENERAL, DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Mr. MCNULTY. Thank you, Mr. Chairman. Thank you for your 

kindness. I appreciate the opportunity to be here this morning and 

attempt to clear up the misunderstandings and misperceptions 

about the recent resignations of some U.S. Attorneys and to testify 

in strong opposition to S. 214, a bill which would strip the Attorney 

General of the authority to make interim appointments to fill vacant U.S. Attorney positions. 

As you know and as you have said, Mr. Chairman, I had the 

privilege of serving as United States Attorney for 4–1/2 years. It 

was the best job I ever had. That is something you hear a lot from 

former United States Attorneys: ‘‘Best job I ever had.’’ In my case, 

Mr. Chairman, it was even better than serving as counsel under 

your leadership with the Subcommittee on Crime. 

14

Now, why is it being U.S. Attorney the best job? Why is it such 

a great job? There are a variety of reasons, but I think it boils 

down to this: The United States Attorneys are the President’s chief 

legal representatives in the 94 Federal judicial district. In my 

former District of Eastern Virginia, Supreme Court Chief Justice 

John Marshall was the first United States Attorney. Being the 

President’s chief legal representative means you are the face of the 

Department of Justice in your district. Every police chief you support, every victim you comfort, every citizen you inspire or encourage, and, yes, every criminal who is prosecuted in your name communicates to all of these people something significant about the 

priorities and values of both the President and the Attorney General. 

At his Inauguration, the President raises his right hand and solemnly swears to faithfully execute the Office of the President of the 

United States. He fulfills this promise in no small measure through 

the men and women he appoints as United States Attorneys. 

If the President and the Attorney General want to crack down 

on gun crimes, if they want to go after child pornographers and 

pedophiles, as this President and Attorney General have ordered 

Federal prosecutors to do, it is the United States Attorneys who 

have the privilege of making such priorities a reality. That is why 

it is the best job a lawyer can ever have. It is an incredible honor. 

And this is why, Mr. Chairman, judges should not appoint 

United States Attorneys, as S. 214 proposes. What could be clearer 

executive branch responsibilities than the Attorney General’s authority to temporary appoint and the President’s opportunity to 

nominate for Senate confirmation those who will execute the President’s duties of office? S. 214 does not even allow the Attorney General to make any interim appointments, contrary to the law prior 

to the most recent amendment. 

The indisputable fact is that United States Attorneys serve at 

the pleasure of the President. They come and they go for lots of 

reasons. Of the United States Attorneys in my class at the beginning of this administration, more than half are now gone. Turnover 

is not unusual, and it rarely causes a problem, because even 

though the job of United States Attorney is extremely important, 

the greatest assets of any successful United States Attorney are 

the career men and women who serve as Assistant United States 

Attorneys: victim/witness coordinators, paralegals, legal assistants, 

and administrative personnel. Their experience and professionalism ensures smooth continuity as the job of U.S. Attorney 

transitions from one person to another. 

Mr. Chairman, I conclude with these three promises to this Committee and the American people on behalf of the Attorney General 

and myself. 

First, we never have and never will seek to remove a United 

States Attorney to interfere with an ongoing investigation or prosecution or in retaliation for a prosecution. Such an act is contrary 

to the most basic values of our system of justice, the proud legacy 

of the Department of Justice, and our integrity as public servants. 

Second, in every single case where a United States Attorney position is vacant, the administration is committed to filling that position with a United States Attorney who is confirmed by the Senate. 

15

The Attorney General’s appointment authority has not and will not 

be used to circumvent the confirmation process. All accusations in 

this regard are contrary to the clear factual record. The statistics 

are laid out in my written statement. 

And, third, through temporary appointments and nominations for 

Senate confirmation, the administration will continue to fill U.S. 

Attorney vacancies with men and women who are well qualified to 

assume the important duties of this office. 

Mr. Chairman, if I thought the concerns you outlined in your 

opening statement were true, I would be disturbed, too. But these 

concerns are not based on facts, and the selection process we will 

discuss today I think will shed a great deal of light on that. 

Finally, I have a lot of respect for you, Mr. Chairman, as you 

know. And when I hear you talk about the politicizing of the Department of Justice, it is like a knife in my heart. The AG and I 

love the Department, and it is an honor to serve. And we love its 

mission. And your perspective is completely contrary to my daily 

experience, and I would love the opportunity, not just today but in 

the weeks and months ahead, to dispel you of the opinion that you 

hold. 

I appreciate your friendship and courtesy, and I am happy to respond to the Committee’s questions. 

[The prepared statement of Mr. McNulty appears as a submission for the record.] 

Senator SCHUMER. Well, thank you, Deputy Attorney General. I 

very much appreciate your heartfelt comments. I can just tell you—

and it is certainly not just me, but speaking for myself—what I 

have seen happen in the Justice Department is a knife to my heart 

as somebody who has followed and overseen the Justice Department for many, many years. And perhaps there are other explanations, but on issue after issue after issue after issue—I think 

Senator Specter alluded to it to some extent—the view that executive authority is paramount, to the extent that many of us feel congressional prerogatives written in law are either ignored or ways 

are found around them, I have never seen anything like it. And 

there are many fine public servants in the Justice Department. I 

had great respect for your predecessor, Mr. Comey. I have great respect for you. But you have to judge the performance of the Justice 

Department by what it does, not the quality of or how much you 

like the people in it. 

And so my comment is not directed at you in particular, but it 

is directed at a Justice Department that seems to me to be far 

more politically harnessed than previous Justice Departments, 

whether they be under Democratic or Republican administrations. 

There are a lot of questions, but I know some of my colleagues—

I know my colleague from Rhode Island wants to ask questions and 

has other places to go, so I am going to limit the first round to 5 

minutes for each of us. And then in the second round, we will go 

to more unlimited time, if it is just reasonable, if that is okay with 

you, Mr. Chairman. Okay. 

First, you say in your testimony that a United States Attorney 

may be removed for any reason or no reason. So my first question 

is: Do you believe that U.S. Attorneys can be fired on simply a 

whim, somehow the President or the Attorney General wakes up 

16

one morning and says, ‘‘Hmm, I don’t like him, let’s fire him’’ ? 

What’s the reason? ‘‘I just don’t like him.’’ Would that be okay? 

Mr. MCNULTY. Well, Mr. Chairman—

Senator SCHUMER. Well, let me say, is that legally allowed? 

Mr. MCNULTY. Well, if we are using just a very narrow question 

of can in a legal sense, I think the law is clear that ‘‘serving at the 

pleasure’’ would mean that there needs to be no specific basis. 

Senator SCHUMER. Right. But I think you would agree that that 

would not be a good idea. 

Mr. MCNULTY. I would agree. 

Senator SCHUMER. Okay. Now, let me ask you this: You do agree 

that a United States Attorney cannot be removed for a discriminatory reason, because that person is a woman or black or—you 

would agree with that. 

Mr. MCNULTY. Sure. 

Senator SCHUMER. So there are some limits here. 

Mr. MCNULTY. Well, of course, and there would certainly be 

moral limits, and I don’t know the law in the area of removal as 

it relates to those special categories. But I certainly know that isn’t 

an appropriate thing to do. It would be completely inappropriate. 

Senator SCHUMER. Okay. And you do believe, of course, that a 

U.S. Attorney could be removed for a corrupt reason in return for 

a bribe or a favor. 

Mr. MCNULTY. Right. 

Senator SCHUMER. Okay. Now, let me ask you this: Do you think 

it is good for public confidence and respect of the Justice Department for the President to exercise his power to remove a U.S. Attorney simply to give somebody else a chance at the job? Let’s just 

assume for the sake of argument that that is the reason. Mr. X, 

you are doing a very, very fine job, and you are in the middle of 

your term. No one objects to what you have done, but we prefer 

that Mr. Y take over. Would that be a good idea? Would that practice be wise? 

Mr. MCNULTY. I think that if it was done on a large scale, it 

could raise substantial issues and concerns. But I don’t have the 

same perhaps alarms that you might have about whether or not 

that is a bad practice. 

If at the end of the first 4-year term—and, of course, all of our 

confirmation certificates say that we serve for a 4-year term. At the 

end of that 4-year term, if there was an effort to identify and nominate new individuals to step in, to take on the second term, for example, I am not so sure that would be contrary to the best interests of the Department of Justice. It is not something that has been 

done. It is not something that is being contemplated to do. But the 

turnover has already been essentially like that. We have already 

switched out more than half of the U.S. Attorneys that served in 

the first term. So change is not something that slows down or debilitates the work of the Department of Justice. 

Senator SCHUMER. Right. And all of these—these seven that we 

are talking about—they had completed their 4-year terms, every 

one of them, but then had been in some length of holdover period. 

They were not all told immediately at the end or right before the 

end of their 4-year term to leave. Is that right? 

Mr. MCNULTY. That is correct. 

17

Senator SCHUMER. Okay. I still have a few minutes left, but I 

now have a whole new round of questioning, and I do not want to 

break it in the middle. So I am going to call on Senator Specter 

for his 5 minutes. 

Senator SPECTER. Thank you, Mr. Chairman. 

Mr. McNulty, were you ever an Assistant U.S. Attorney? 

Mr. MCNULTY. No, I wasn’t. 

Senator SPECTER. Well, I was interested in your comment that 

the best job you have had was U.S. Attorney, and that is probably 

because you were never an Assistant U.S. Attorney, because I was 

an assistant district attorney, and that is a much better job than 

district attorney. 

Mr. MCNULTY. I have heard that from a lot of assistants. That 

is true. 

Senator SPECTER. The assistant just gets to go into court and try 

cases and cross-examine witnesses and talk to juries and have a 

much higher level sport than administrators who are U.S. Attorneys or district attorneys. 

Mr. McNulty, what about Carol Lam? I think we ought to get 

specific with the accusations that are made. Why was she terminated? 

Mr. MCNULTY. Senator, I came here today to be as forthcoming 

as I possibly can, and I will continue to work with the Committee 

to provide information. But one thing that I do not want to do is, 

in a public setting, as the Attorney General declined to do, to discuss specific issues regarding people. I think that it is unfair to individuals to have a discussion like that in this setting in a public 

way, and I just have to respectfully decline going into specific reasons about any individual. 

Senator SPECTER. Well, Mr. McNulty, I can understand your reluctance to do so, but when we have confirmation hearings, which 

is the converse of inquiries into termination, we go into very difficult matters. 

Now, maybe somebody who is up for confirmation has more of an 

expectation of having critical comments made than someone who is 

terminated. And I am not going to press you as to a public matter, 

but I think the Committee needs to know why she was terminated. 

And if we can both find that out and have sufficient public assurance that the termination was justified, I am delighted—I am willing to do it that way. 

I am not sure that these attorneys who were terminated would 

not prefer to have it in a public setting. But we have the same 

thing as to Mr. Cummins, and we have the same thing as to going 

into the qualifications of the people you have appointed. But to find 

out whether or not what Senator Schumer has had to say is right 

or wrong, we need to be specific. 

Mr. MCNULTY. Could I make two comments? 

First, on the question of the confirmation process, if you want to 

talk about me—and I am here to have an opportunity to respond 

to everything I have ever done—that is one thing. I just am reluctant to talk about somebody who is not here and who has the right 

to respond, and I don’t—I just don’t want to unfairly—

18

Senator SPECTER. But, Mr. McNulty, we are talking about you 

when we ask the question about why did you fire X or why did you 

fire Y. We are talking about what you did. 

Mr. MCNULTY. And I will try to work with the Committee to give 

them as much information as possible. But I also want to say something else: Essentially we are here to stipulate to the fact that if 

the Committee is seeking information, our position basically is that 

there is going to be a range of reasons and we don’t believe that 

we have an obligation to set forth a certain standard or reason or 

cause when it comes to removal. 

Senator SPECTER. Are you saying that aside from not wanting to 

have comments about these individuals in a public setting—which, 

again, I say I am not pressing—that the Department of Justice is 

taking the position that you will not tell the Committee in our 

oversight capacity why you terminated these people? 

Mr. MCNULTY. No, I am not saying that. I am saying something 

a little more complicated than that. What I am saying is that in 

searching through any document you might seek from the Department, such as every 3 years we do an evaluation of an office—those 

are called EARs reports. You may or may not see in an EAR report 

what would be concerned to a leadership of a department because 

that is just one way of measuring someone’s performance. And 

much of this is subjective and will not be apparent in the form of 

some report that was done 2 or 3 years ago by a group of individuals that looked at an office. 

Senator SPECTER. Well, my time is up, but we are going to go beyond reports. We are going to go to what the reasons were. 

Mr. MCNULTY. Sure. 

Senator SPECTER. Subjective reasons are understandable. 

Mr. MCNULTY. I understand. I just—

Senator SPECTER. I like to observe that red signal. But you do 

not have to. You are the witness. Go ahead. 

Mr. MCNULTY. The Senator opened, the Chairman opened with 

a reference to documentation, and I just wanted to make it clear 

that there really may or may not be documentation as you think 

of it because there aren’t objective standards necessary in these 

matters when it comes to managing the Department and thinking 

through what is best for the future of the Department in terms of 

leadership of offices. In some places we may have some information 

that you can read. In others, we will have to just explain our thinking. 

Senator SPECTER. We can understand oral testimony and subjective evaluations. 

Mr. MCNULTY. Thank you, Senator. 

Senator SPECTER. We do not function solely on documents. 

Senator SCHUMER. Especially those of us who have been assistant district attorneys. 

Senator SPECTER. That is the standard, Mr. McNulty so your 

qualifications are being challenged here. You have not been an Assistant U.S. Attorney. 

Senator SCHUMER. The Senator from Rhode Island. 

Senator WHITEHOUSE. Thank you, Mr. Chairman. 

Mr. McNulty, welcome. You are clearly a very wonderful and impressive man, but it strikes me that your suggestions that there is 

19

a clear, factual record about what happened and that this was just 

turnover are both just plain wrong. 

I start from the clear, factual record. The suggestion has been 

made to the Washington Post and the Attorney General also made 

the same suggestion to us that—and I am quoting from the Post 

article on Sunday—‘‘Each of the recently dismissed prosecutors had 

performance problems’’—which does not jibe with the statement of 

Mr. Cummins from Arkansas that he was told there was nothing 

wrong with his performance, that officials in Washington wanted 

to give the job to another GOP loyalist. 

So right from the very get-go we start with something that is 

clearly not a clear, factual record of what took place. In fact, on the 

very basic question of what the motivation was, we are getting two 

very distinct and irreconcilable stories. If it is true that, as the 

Washington Post reported, six of the prosecutors received calls notifying them of their firings on a single day, the suggestion that this 

is just ordinary turnover does not seem to pass the laugh test, really. 

Could you respond to those two observations? 

Mr. MCNULTY. Yes, sir. Thank you. Senator, first of all, with regard to Arkansas and what happened there and any other efforts 

to seek the resignation of U.S. Attorneys, these have been lumped 

together, but they really ought not to be. And we will talk about 

the Arkansas situation, as Senator Pryor has laid it out, and the 

fact is that there was a change made there that was not connected, 

as was said, to the performance of the incumbent, but more related 

to the opportunity to provide a fresh start with a new person in 

that position. 

With regard to the other positions, however—

Senator WHITEHOUSE. But why would you need a fresh start if 

the first person was doing a perfectly good job? 

Mr. MCNULTY. Well, again, in the discretion of the Department, 

individuals in the position of U.S. Attorneys serve at the pleasure 

of the President, and because turnover—and that is the only of 

going to your second question. I was referring to turnover. Because 

turnover is a common thing in U.S. Attorney’s Offices—

Senator WHITEHOUSE. I know. I turned over myself as a U.S. Attorney. 

Mr. MCNULTY. Bringing in someone does not create a disruption 

that is going to be hazardous to the office, and it does, again, provide some benefits. In the case of Arkansas, which this is really 

what we are talking about, the individual who was brought in had 

significant prosecution experience. He actually had more experience 

than Mr. Cummins did when he started the job. And so there was 

every reason to believe that he could be a good interim until his 

nomination or someone else who is nominated for that position 

went forward and there was a confirmed person in the job. 

Senator WHITEHOUSE. Mr. McNulty, what value does it bring to 

the U.S. Attorney’s Office in Arkansas to have the incoming U.S. 

Attorney have served as an aide to Karl Rove and to have served 

on the Republican National Committee? 

Mr. MCNULTY. Well, all experience is—

Senator WHITEHOUSE. Has he learned anything useful there to 

being a U.S. Attorney? 

20

Mr. MCNULTY. I don’t know. All I know is that a lot of U.S. Attorneys have political backgrounds. Mr. Cummins ran for Congress 

as a Republican candidate. Mr. Cummins served in the Bush-Cheney campaign. I don’t know if those experiences were useful for 

him to be a successful U.S. Attorney, because he was. I think a lot 

of U.S. Attorneys bring political experience to the job. It might help 

them in some intangible way. 

But in the case of Mr. Griffin, he actually was in that district for 

a period of time serving as an Assistant United States Attorney, 

started their gun enforcement program, did many cases as a JAG 

prosecutor, went to Iraq, served this country there, and came back. 

So there are lot of things about him that make him a credible 

and well-qualified person to be a U.S. Attorney. 

Senator WHITEHOUSE. Having run public corruption cases and 

having firsthand experience of how difficult it is to get people to 

be willing to come in and testify and come forward, it is not an 

easy thing to do. You put your career, you put your relationships, 

everything on the line to come in and be a witness. If somebody 

in Arkansas were a witness to Republican political corruption, do 

you think it would have any effect on their willingness to come forward to have the new U.S. Attorney be somebody who assisted 

Karl Rove and worked for the Republican National Committee? Do 

you think it would give any reasonable hesitation or cause for concern on their part that maybe they should just keep this one to 

themselves until the air cleared? 

Mr. MCNULTY. Well, again, U.S. Attorneys over a period of long 

history have had political backgrounds, and yet they still have been 

successful in doing public corruption cases. I think it says a lot 

about what U.S. Attorneys do when they get into office. 

One thing, Senator, as you know as well as I do, public corruption cases are handled by career agents and career Assistant 

United States Attorneys that U.S. Attorneys play an important 

role, but there is a team that is involved in these cases. And that 

is a nice check on one person’s opportunity to perhaps do something that might not be in the best interest of the case. 

So my experience is that the political backgrounds of people create unpredictable situations. We have had plenty of Republicans 

prosecute Republicans in this administration, and we have had 

Democrats prosecute Democrats. Because once you put that hat on 

to be the chief prosecutor in the district, it transforms the way you 

look at the world. 

Senator WHITEHOUSE. We hope. 

Mr. MCNULTY. It certainly is done a lot. 

Senator WHITEHOUSE. Mr. Chairman, is it clear that we will be 

receiving the EARS evaluations for these individuals? 

Senator SCHUMER. We will get them one way or another, yes. 

Senator WHITEHOUSE. Thank you. 

Senator SCHUMER. Senator Hatch. 

Senator HATCH. Well, first of all, Mr. McNulty, thanks for your 

testimony. I also concur with the Chairman that you are a great 

guy and you have served this country very, very well in a variety 

of positions. 

Mr. MCNULTY. Thank you, Senator. 

21

Senator HATCH. We all have great respect for you, having served 

up here in the Congress. 

Are these really called ‘‘firings’’ down at the Department of Justice? 

Mr. MCNULTY. No. The—

Senator HATCH. When people are removed? 

Mr. MCNULTY. The terminology that has been assigned to 

these—‘‘firings,’’ ‘‘purges,’’ and so forth—is, I think, unfair. Certainly the effort was made to encourage and seek people—

Senator HATCH. Well, basically my point is they are not being 

fired. You are replacing them with other people who may have the 

opportunity as well. 

Mr. MCNULTY. Correct. And, Senator, one other thing I wanted 

to say is to Senator Whitehouse—

Senator HATCH. And that has been done by both Democrat and 

Republican administrations, right? 

Mr. MCNULTY. Absolutely. 

Senator HATCH. Is this the only administration that has replaced 

close to 50 percent of the U.S. Attorneys in its 6 years in office? 

Mr. MCNULTY. I haven’t done an analysis of—

Senator HATCH. But others have as well, haven’t they? 

Mr. MCNULTY. Well, it is a routine thing to see U.S. Attorneys 

come and go, as I have said. 

Senator HATCH. Well, I pointed out at the beginning of this that 

President Clinton came in and requested the resignation of all 93 

U.S. Attorneys. Are you aware of that? 

Mr. MCNULTY. Yes, I am. I was, in fact—

Senator HATCH. I did not find any fault with that. That was his 

right. 

Mr. MCNULTY. Right. 

Senator HATCH. Because they serve at the pleasure of the President, right? 

Mr. MCNULTY. Right. 

Senator HATCH. Well, does the President always—or does the Department always have to have a reason for replacing a U.S. Attorney? 

Mr. MCNULTY. They don’t have to have cause. I think in responding to Senator Schumer’s question earlier, I think—

Senator HATCH. They do not even have to have a reason. If they 

want to replace them, they have a right to do so. Is that right or 

is that wrong? 

Mr. MCNULTY. They do not have to have one, no. 

Senator HATCH. Well, that is my point. In other words, to try and 

imply that there is something wrong here bc certain U.S. Attorneys 

have been replaced is wrong unless you can show that there has 

been some real impropriety. If there is real impropriety, I would be 

the first to want to correct it. 

Let me just ask you this: The primary reason given for last year’s 

amendment of 28 U.S.C. 546 was the recurring—happened to be 

the recurring problems that resulted from the 120-day limitation 

on Attorney General appointments. Now, can you explain some of 

these problems and address the concerns of district courts that recognize the conflict in appointing an Interim U.S. Attorney? 

22

Mr. MCNULTY. Senator, just prior to that change being made, as 

Senator Specter set forth in his opening statement, we had a very 

serious situation arise in South Dakota, and that situation illustrates what can happen when you have two authorities seeking to 

appoint a U.S. Attorney. In that case in South Dakota, the public 

defender’s office actually challenged an indictment brought by the 

Interim U.S. Attorney claiming that he did not have the authority 

to indict someone because the judge there had appointed someone 

else to be the U.S. Attorney at about the same time. The individual 

that the judge appointed was somebody outside the Department of 

Justice, had not gone through a background check. We could not 

even communicate with that individual on classified information 

until a background check would have been done. And so it was a 

rather serious problem that we faced, and it lasted for a month or 

more. 

There have been other problems like that over the history of the 

Department where someone comes in, perhaps, and has access to 

public corruption information who is completely outside of the Department of Justice—

Senator HATCH. Would you be willing to make a list of these type 

of problems? 

Mr. MCNULTY. Well, we have been asked to do that in the questions that were submitted for the record at the AG’s hearing. 

Senator HATCH. I figured that, so if you will get that list to us 

so that we understand that these are not simple matters and 

that—you know, in your testimony you mentioned with great emphasis that the administration has at no time sought to avoid the 

Senate confirmation process by appointing an Interim United 

States Attorney and then refused to move forward in consultation 

with home-State Senators on the selection, nomination, and confirmation of a new United States Attorney. 

Now, can you explain the role of the home-State Senator in this 

process and confirm that it has been done for the vacancies that 

have arisen since this law was amended? 

Mr. MCNULTY. Thank you, Senator. We have had 15 nominations 

made since the law was amended. All 15 of those nominations 

could have been held back if we wanted to abuse this authority and 

just go ahead and put interims in. We have had 13 vacancies. All 

told, there have been about 23 situations where a nomination is 

necessary to go forward; 15 nominations have gone forward, and in 

the 8 where they haven’t, we are currently in the process of consulting with the home-State Senators to send someone here. 

And one thing, Senator, I have to say, because Senator 

Whitehouse referred to it, in the case of individuals who were 

called and asked to resign, not one situation have we had an interim yet appointed who falls into some category of a Washington 

person or an insider or something. In the cases where an interim 

has been appointed in those most recent situations, they both have 

been career persons from the office who are the interims, and we 

are working with the home-State Senators to identify the nominee 

who will be sent to this Committee for confirmation. 

Senator HATCH. Thank you, Mr. Chairman. 

Senator SCHUMER. Senator Feinstein. 

23

Senator FEINSTEIN. Thank you very much, Mr. Chairman, and 

thank you for holding these hearings. 

Mr. McNulty, I believe it was in the 2006 reauthorization of the 

PATRIOT Act when this amendment was slipped into the law, and 

it was slipped into the law in a way that I do not believe anyone 

on this Committee knew that it was in the law. At least to my 

knowledge, no one has come forward and said, ‘‘Yes, we discussed 

this. I knew it was in the law.’’ No Republican, no Democrat. 

I would like to ask this question. Did you or any Justice staff 

make a series of phone calls in December to at least six United 

States Attorneys telling them they were to resign in January? 

Mr. MCNULTY. I think I can say yes to that because—I don’t 

want to talk about specific numbers, but phone calls were made in 

December asking U.S. Attorneys to resign. That is correct. 

Senator FEINSTEIN. And how many U.S. Attorneys were asked to 

resign? 

Mr. MCNULTY. Because of the privacy of individuals, I will say 

less than 10. 

Senator FEINSTEIN. Okay, less than 10. And who were they? 

Mr. MCNULTY. Senator, I would—following the Attorney General’s response to this question at his Committee, in a public setting I don’t want to mention the names of individuals. Not all 

names have necessarily been stated, or if they have, they have not 

been confirmed by the Department of Justice. And information like 

that can be provided to the Committee in a private setting, but in 

the public setting, I wish to not mention specific names. 

Senator FEINSTEIN. And in a private session, you would be willing to give us the names of the people that were called in December? 

Mr. MCNULTY. Yes. 

Senator FEINSTEIN. Thank you very much. 

Mr. Chairman, I think just by way of a—my own view is that the 

PATRIOT Act should not have been amended to change, and I 

know Senator Specter felt—I know Senator Specter feels that we 

should simply return the language to the way it was prior to the 

reauthorization in 2006, and I am agreeable to this. So I think we 

have found a solution that, in essence, would give the United 

States Attorney an opportunity to make a truly temporary appointment for a limited period of time, after which point, if no nominee 

has come up for confirmation or been confirmed, it would go to a 

judge. And I believe that we will mark that up tomorrow, and 

hopefully that would settle that matter. 

In my heart of hearts, Mr. McNulty, I do believe—I could not 

prove in a court of law, but I do believe based on what I have heard 

that there was an effort made to essentially put in Interim U.S. Attorneys to give, as one person has said, ‘‘bright young people of our 

party, to put them in a position where they might be able to shine. 

That in itself I don’t have an objection to. I think you are entitled 

to do that. But I think to use the U.S. Attorney spot for this is not 

the right thing to do. And that is why I think we need to put the 

law back the way it is. 

Let me just ask one—

Mr. MCNULTY. Senator, may I just respond very briefly? 

Senator FEINSTEIN. Sure, sure. 

24

Mr. MCNULTY. And I respect your position on that. But I wanted 

to just make it clear that that premise has to be looked at in light 

of the process we go through to select the new U.S. Attorneys, because if that were the case, that we were doing this just to give 

sort of a group that had been pre-identified or something an opportunity to serve, it would not square with the process that exists in 

virtually every State in one way or another, to work with the 

home- State Senators to come up with the list of names of individuals. 

In California, for example, as you know well because you led the 

way in which the system we have set up to identify qualified people, that has been a bipartisan process. It has worked very well. 

We respect that process. We will follow that process for vacancies 

that occur on California. So there won’t be any way, any effort to 

try to force certain individuals into these positions since we go 

through a pre-established nomination, identification, and then confirmation process. 

Senator FEINSTEIN. I appreciate that. Could I ask one last question? There are currently 13 vacancies, and this number does not 

include the recent additional 7 vacancies, like the ones in my State 

that have developed. Now, there are only two nominees pending before the United States Senate at this time. When do you intend to 

have the other nominees sent to us? 

Mr. MCNULTY. I think we are higher than two out of the current 

vacancies—well, okay. 

Senator FEINSTEIN. No, I—

Mr. MCNULTY. I will defer to your numbers on it. 

Two is right. Sorry. We will make every effort possible to identify 

nominees to submit for your consideration here in the Committee. 

Sometimes the process takes a little longer because there is something going on in the home-State for a selection process. We move 

quickly when we receive names to have interviews, so we don’t—

the process doesn’t get delayed there. But it is a complicated process to develop a final list in consultation and get them up here. But 

we are committed to doing that as quickly as possible for every vacancy we have. 

Senator SCHUMER. Thank you. 

Senator Specter wanted to say a brief word before Senator Feinstein left, and then we will go to Senator Sessions. 

Senator SPECTER. Well, I just wanted to comment to Senator 

Feinstein that I thank her for her work on this issue. I had said 

before you arrived in my opening statement that I did not know of 

the change in the PATRIOT Act until you called it to my attention 

on the floor, and I said to you at that time, ‘‘This is news to me, 

but I will check it out.’’ And I then checked it out with Mike 

O’Neill, who advised that Brett Tolman, a senior staff member, had 

gotten the request from the Department of Justice because of a situation in South Dakota where a judge made an appointment which 

was not in accordance with the statute. And there had been an 

issue arising with other courts questioning the separation of power. 

But when you and I have discussed it further continuously, including yesterday, we came to the conclusion that we would send 

it back to the former statute, which I think will accommodate the 

purposes. 

25

Senator FEINSTEIN. Thank you very much. 

Senator SCHUMER. Senator Sessions. 

Senator SESSIONS. Thank you. Senator Feinstein, I am troubled 

by the mushiness of our separation of powers and the constitutional concepts of executive branch and confirmation. And your proposal, I think it goes too far. I think the proposal that passed last 

time may need some reform. 

I would be inclined to suggest, Mr. Chairman, that the reform 

needed may be to some sort of expedited or insured confirmation, 

submission and confirmation by the Senate, rather than having the 

executive branch, which constitutionally has not been ever considered a part of this process to be appointing U.S. Attorneys, but 

whatever. 

You know, I don’t know how I got to be United States Attorney. 

I see Senator Whitehouse. Maybe they thought he would be a 

bright, young star one day if they appointed him United States Attorney. I recall Rudy Giuliani and there was a dispute over his successor when he was United States Attorney in Manhattan, and he 

said he thought it would be nice if whoever were appointed was 

able to contribute to the discussion every now and then. 

We do have U.S. Attorneys that preside over a lot of important 

discussions, and they generally put their name on the indictments 

of important cases. At least they are responsible whether they sign 

the indictment or not. So it is a very significant position, and it is 

difficult sometimes to anticipate who would be good at it and who 

would not. Some people without much experience do pretty well. 

Some with experience don’t do very well at all. 

We had a situation in Alabama that wasn’t going very well. The 

Department of Justice recently made a change in the office, and it 

was reported as being for performance reasons. You filled the interim appointment with now U.S. Attorney Deborah Rhodes, a professional from San Diego, a professional prosecutor, who had been 

in the Department of Justice. She was sent in to bring the office 

together, did a good job of it. Senator Shelby and I recommended 

that she be made the permanent United States Attorney and we 

did that. 

My personal view is that the Department of Justice is far too 

reticent in removing United States Attorneys that do not perform. 

United States Attorneys are a part of the executive branch. They 

have very important responsibilities. 

I recall seeing an article recently about the wonderful Secretary 

of Labor Elaine Chao. She is the last member of the Cabinet standing, was part of the article. Cabinet members turn over. They are 

appointed and confirmed by the Senate at the pleasure of the 

President, and I think the Department of Justice has a responsibility of the 92 United States Attorneys to see that they perform 

to high standards, and if they do not so perform, to remove them. 

I don’t see anything wrong with giving an opportunity to somebody 

who has got a lot of drive and energy and ability and letting them 

be United States Attorney and seeing how they perform. But they 

ought to have certain basic skills, in my view, that indicate they 

are going to be successful at it. Otherwise, you as the President 

gets judged on ineffectual appointments and failing to be effective 

in law enforcement and related issues. I just wanted to say that. 

26

Seven out of 92 to be asked to step down is not that big a deal 

to me. I knew when I took the job that I was subject to being removed at any time without cause, just like the Secretary of State 

who does not have the confidence of the President or the Secretary 

of Transportation. If somebody had called and said, ‘‘Jeff, we would 

like you gone,’’ you say, ‘‘Yes, sir,’’ and move on, I think, and not 

be whining about it. You took the job with full knowledge of what 

it is all about. 

With regard to one—I know you do not want to comment about 

these individual United States Attorneys and what complaints or 

performance problems or personal problems or morale problems 

within the office may have existed. I would just note that one has 

been fairly public. Carol Lam has been the subject of quite a number of complaints. Have you received complaints from Members of 

Congress about the performance of U.S. Attorney Carol Lam in San 

Diego on the California border? 

Mr. MCNULTY. Well, we have received letters from Members of 

Congress. I don’t want to go into the substance of them, although 

the Members can speak for them. But, again, I want to be very 

careful about what I say concerning any particular person. 

Senator SESSIONS. Well, on July 30th, 14 House Members expressed concerns with the Department of Justice’s current policy of 

not prosecuting alien smugglers—I do not mean people who come 

across the border; I mean those who smuggle groups of them across 

the border—specifically mentioning that Lam’s office had declined 

to prosecute one key smuggler. Are you familiar with that—June 

30, 2004? 

Mr. MCNULTY. I am familiar with the letter. 

Senator SESSIONS. On September 23, 2004, 19 House Members 

described the need for the prosecution of illegal alien smugglers—

these are coyotes—in the border U.S. Attorney Offices, and they 

specifically mentioned the United States Attorney in San Diego. 

This is what they said: ‘‘Illustrating the problem, the United States 

Attorney’s Office in San Diego stated that it is forced to limit prosecution to only the worst coyote offenders, leaving countless bad actors to go free.’’ 

Isn’t that a letter you received that said that? 

Mr. MCNULTY. I am familiar with the letter. 

Senator SESSIONS. On October 13, 2005, Congressman Darrell 

Issa wrote to U.S. Attorney Lam complaining, saying this: ‘‘Your office has established an appalling record of refusal to prosecute even 

the worst criminal alien offenders.’’ And then on October 20, 2005, 

19 House Members wrote to Attorney General Gonzales to express 

their frustration, saying, ‘‘The U.S. Attorney in San Diego has stated that the office will not prosecute a criminal alien unless they 

have previously been convicted of two felones in the district’’—two 

felonies in the district—before they would even prosecute. 

Do you see a concern there? Is that something that the Attorney 

General the President have to consider when they decide who the 

U.S. Attorneys are? 

Mr. MCNULTY. Well, anytime Members of Congress, Senators or 

House Members, write letters to us, we take them seriously and 

give them the consideration that is appropriate. 

27

Senator SCHUMER. Thank you, Mr. McNulty. We will have a second round, if you want to pursue it, Senator Sessions. 

Okay. I am going to go into my second round, and I want to go 

back to Bud Cummins. 

First, Bud Cummins has said that he was told he had done nothing wrong and he was simply being asked to resign to let someone 

else have the job. Does he have it right? 

Mr. MCNULTY. I accept that as being accurate, as best I know 

the facts. 

Senator SCHUMER. Okay. So, in other words, Bud Cummins was 

fired for no reason, there was no cause? 

Mr. MCNULTY. No cause provided in his case that I am aware 

of. 

Senator SCHUMER. None at all. And was there anything materially negative in his evaluations, in his EARS reports or anything 

like that? From the reports that everyone has received, he had 

done an outstanding job, had gotten good evaluations. Do you believe that to be true? 

Mr. MCNULTY. I don’t know of anything that is negative, and I 

haven’t seen his reports or—there was probably only one that was 

done during his tenure, but I haven’t seen it. But I am not aware 

of anything that—

Senator SCHUMER. Would you be willing to submit those reports 

to us even if we would not make them public? 

Mr. MCNULTY. Right, well, other than—I just want to fall short 

of making a firm promise right now, but we know that you are interested in them, and we want to work with you to see how we can 

accommodate your needs. 

Senator SCHUMER. So your inclination is to do it, but you do not 

want to give a commitment right here. 

Mr. MCNULTY. Correct. 

Senator SCHUMER. Okay. As I said in my opening statement, if 

we cannot get them, I will certainly discuss with the Chairman my 

view that we should subpoena them if we cannot get them. This 

is a serious matter. I do not think they should be subpoenaed. I 

think we should get them. Certainly a report like this, which is a 

positive evaluation, your reasoning there, at least as far as 

Cummins is concerned—obviously, you can make imputations if 

others are not released—is it would not hurt his reputation in any 

way. 

Mr. MCNULTY. I would just say, Mr. Chairman, if you get a report, if you see a report, and it does not show something that you 

believe is cause, to me that is not an ‘‘Aha’’ moment because, as 

I say right up front, those reports are written by peers. 

Senator SCHUMER. Understood. 

Mr. MCNULTY. And they may or may not contain views that are 

a concern to us. 

Senator SCHUMER. But you did say earlier—and this is the first 

we have heard of this—that he was not fired for a particular reason. When he said he was being fired simply to let someone else 

have a shot at the job, that is accurate, as best you can tell. 

Mr. MCNULTY. I am not disputing that characterization. 

Senator SCHUMER. Okay. That is important to know. 

28

Now, so then we go on to the replacement for Mr. Cummins, and, 

again, as Senator Feinstein and others have said, there are all 

kinds of reasons people are chosen to be U.S. Attorneys. But I first 

want to ask about this: Senator Pryor talked about allegations—I 

think they were in the press, he mentioned—about his successor, 

Mr. Griffin, ‘‘being involved in caging black votes.’’ 

First, if there were such an involvement, if he did do that at 

some point in his job, in one of his previous jobs, do you think that 

should be a disqualifier for him being U.S. Attorney in a State like 

Arkansas where there are obviously civil rights suits? 

Mr. MCNULTY. I think any allegation or issue that is raised 

against somebody has to be carefully examined, and it goes into the 

thinking as to whether or not that person is the best candidate for 

the job. 

Senator SCHUMER. Was Mr. Griffin given a thorough, thorough 

review before he was asked to do this job? And are you aware of 

anything that said he was involved in ‘‘caging black votes’’ ? 

Mr. MCNULTY. First of all, in terms of the kind of review, there 

are different levels of review, depending upon what a person is 

going to be doing. If you are an interim, you are already, by definition, in the Department of Justice in one way or another, either in 

the office or in the Criminal Division or some other place. You already have a background check. You are already serving the American people at the Department of Justice. And so you may—at that 

point, that has been sufficient, historically, to serve as an interim. 

Then there is a background check for purposes of nomination. 

That brings in more information. We look at the background check 

carefully and decide based upon that whether or not it is appropriate to recommend to the President to nominate somebody. 

Senator SCHUMER. So I have two questions. Would such a background check have come up with the fact that he was involved in 

‘‘caging black votes,’’ if that were the fact? 

Mr. MCNULTY. Presumably. I am not an expert on how the background check process works entirely, but I think they go out and 

look at press clippings and other things. They go interview people. 

Maybe something comes up that relates to a person’s activities—

I am pretty sure things come up relating to a person’s activities 

apart from—

Senator SCHUMER. But let me get—

Mr. MCNULTY.—what they have done in the office 

Senator SCHUMER. If he was involved in such an activity, would 

it be your view, would you recommend to the Attorney General that 

Mr. Griffin not become the U.S. Attorney for Arkansas, if he were 

involved? And that is a big assumption. I admit it is just something 

that Senator Pryor mentioned. I think that was mentioned in a 

newspaper article. 

Mr. MCNULTY. And I do not want to sound like I am quibbling. 

It is just that all I know here is that we have an article. Even Senator Pryor said that the explanation given was very different from 

what the article was. I don’t know anything about it personally. 

Senator SCHUMER. Right. 

Mr. MCNULTY. And so I am—I don’t want to say that if I knew 

some article was true, that that would, I would have no—

29

Senator SCHUMER. I did not ask about the article. If he was 

doing something that would prevent black people from voting—

Mr. MCNULTY. Of course. Well, if that is what it comes down to 

after all the facts are in—

Senator SCHUMER. Even if that was a legal political activity. 

Mr. MCNULTY. That sounds like a very significant problem. 

Senator SCHUMER. Okay. All right. Now, second, I just want to 

get this one, too, in Senator Pryor’s testimony. Again, there were 

allegations that the First Assistant was passed over because of maternity leave. I believe she said that? Okay. You dispute that? 

Mr. MCNULTY. No. It is just that in my briefings on what occurred, there is definitely some factual difference as to whether or 

not that really was a factor or not. It shouldn’t be a factor, and, 

therefore, I have been told—

Senator SCHUMER. What if it was? What if it was a factor? 

Mr. MCNULTY. I have been told—I am sorry? 

Senator SCHUMER. What if it was a factor? I mean, she said it. 

She is a person of a degree of integrity. She was the First Assistant 

in an important office, and she is saying she was told she was 

passed over because of maternity leave. I would have to check with 

my legal eagles, but that might actually be prohibited under Federal law. 

Mr. MCNULTY. I don’t know, but—

Senator SCHUMER. I think that is probably true. 

Mr. MCNULTY. It should not be a factor in consideration of 

whether or not she would serve as the interim, but I don’t know 

if that—

Senator SCHUMER. Can you—

Mr. MCNULTY.—is accurate. 

Senator SCHUMER. Again, if you choose to—I don’t see any reason 

to do this in private because this does not—the reason you gave of 

not wanting to mention the EARS reports or others is you don’t 

want to do any harm to the people who were removed. But would 

you be willing to come back to us and give us an evaluation as to 

whether that comment was true and whether she was passed over 

because of maternity leave? Could you come back to the Committee 

and report to that? 

Mr. MCNULTY. Yes, I mean, at this point I can that, to the best 

of my knowledge, that is not the case. And, in fact, Mr. Griffin was 

identified as the person who would become the interim and possibly become the nominee before the knowledge of her circumstances was even known. 

Senator SCHUMER. Again, I would ask that you come back and 

give us a report in writing as to why what she is saying is not true 

or is a misinterpretation. Okay? 

Mr. MCNULTY. Okay. 

Senator SCHUMER. All right. Now, let me ask you this: 

You admitted—and I am glad you did—that Bud Cummins was 

fired for no reason. Were any of the other six U.S. Attorneys who 

were asked to step down fired for no reason as well? 

Mr. MCNULTY. As the Attorney General said at his oversight 

hearing last month, the phone calls that were made back in December were performance related. 

Senator SCHUMER. All the others? 

30

Mr. MCNULTY. Yes. 

Senator SCHUMER. But Bud Cummins was not one of those calls 

because he had been notified earlier. 

Mr. MCNULTY. Right. He was notified in June of 2006. 

Senator SCHUMER. So there was a reason to remove all the other 

six. 

Mr. MCNULTY. Correct. 

Senator SCHUMER. Okay. Let me ask you this—I want to go back 

to Bud Cummins here. So here we have the Attorney General adamant—here is his quote: ‘‘We would never, ever make a change in 

the U.S. Attorney position for political reasons.’’ Then we have 

now, for the first time we learn that Bud Cummins was asked to 

leave for no reason, and we are putting in someone who has all 

kinds of political connections, not disqualifiers, obviously, certainly 

not legally, and I am sure it has been done by other administrations as well. But do you believe that firing a well-performing U.S. 

Attorney to make way for a political operative is not a political reason? 

Mr. MCNULTY. Yes, I believe that it is not a political reason. 

Senator SCHUMER. Okay. Could you try to explain yourself there? 

Mr. MCNULTY. I will do my best. I think that the fact that he 

had political activities in his background does not speak to the 

question of his qualifications for being the United States Attorney 

in that district. I think an honest look at his resume shows that 

while it may not be the thickest when it comes to prosecution experience, it is not insignificant either. He had been Assistant United 

States Attorney in that district who set up their Project Safe 

Neighborhoods program. He had done a lot—

Senator SCHUMER. For how long had he been there? 

Mr. MCNULTY. I think that was about a year or so. 

Senator SCHUMER. I think it was less than that, a little less than 

that. 

Mr. MCNULTY. But he did a number of gun cases in that period 

of time. He has also done a lot of trials as a JAG attorney. He had 

gone and served his country over in Iraq. He came back from Iraq, 

and he is looking for a new opportunity. Again, he had qualification 

that exceed what Mr. Cummins had when he started, what Ms. 

Casey had, who was the Clinton U.S. Attorney in that district before she became U.S. Attorney. 

So you start off with a strong enough resume, and the fact that 

he was given an opportunity to step in. And there is one more piece 

of this that is a little tricky because you don’t want to get in this 

business of what did Mr. Cummins say here or there, because I 

think we should talk to him. But he may have already been thinking about leaving at some point anyway. There are some press reports where he says that. 

Now, I don’t know—and I don’t want to put words in his mouth. 

I don’t know what the facts are there completely. What I have been 

told is that there was some indication that he was thinking about 

this as a time for his leaving the office or in some window of time. 

And all those things came together to say in this case, this unique 

situation, we can make a change, and this would still be good for 

the office. 

31

Senator SCHUMER. So you can say to me that you believe—you 

put in your testimony you want somebody who is the best person 

possible. 

Mr. MCNULTY. Well, I didn’t—

Senator SCHUMER. Do you think Mr. Griffin is the best person 

possible? I cannot even see how Mr. Griffin would be better qualified in any way than Bud Cummins, who had done a good job, who 

was well respected, who had now had years of experience. There 

is somebody who served a limited number of months on a particular kind of case and had all kinds of other connections. It sure 

does not pass the smell test. I do not know what happened, and 

I cannot—you know, we will try to get to the bottom of that, and 

I have more questions. But—

Mr. MCNULTY. I did not say ‘‘best person possible.’’ If I used that 

as a standard, I would not—

Senator SCHUMER. You did. 

Mr. MCNULTY.—have become U.S. Attorney. I said ‘‘well qualified.’’ 

Senator SCHUMER. Okay. 

Mr. MCNULTY. And those words were purposely chosen to say 

that he met the standards that are sufficient to take a job like that, 

and I have no hesitancy of that. 

Senator SCHUMER. I just want to—I do not want to pick here 

with my friend Paul McNulty—quote from your testimony: ‘‘For 

these reasons, the Department is committed to having the best person possible discharging the responsibilities of that office at all 

times in every district.’’ 

I find it hard to believe that Tim Griffin was the best person possible. I find it hard to believe that anyone who did an independent 

evaluation in the Justice Department thought that Tim Griffin was 

a superior choice to Bud Cummins. 

Mr. MCNULTY. I guess I was referring to my opening statement 

today—

Senator SCHUMER. Yes, okay. 

Mr. MCNULTY.—when I said about ‘‘well qualified.’’ 

Senator SCHUMER. Let me ask you this: Can you give us some 

information how it came to be that Tim Griffin got his interim appointment? Who recommended him? Was it someone within the 

U.S. Attorney’s Office in Arkansas? Was it someone from within 

the Justice Department? 

Mr. MCNULTY. I don’t know the answers to those questions. 

Senator SCHUMER. Could you get us answers to that in writing? 

And I would also like to ask the question: Did anyone from outside 

the Justice Department, including Karl Rove, recommend Mr. Griffin for the job? Again, I am not saying there is anything illegal 

about that, but I think we ought to know. 

Mr. MCNULTY. Okay. 

Senator SCHUMER. Okay. But you don’t have any knowledge of 

this right now? 

Mr. MCNULTY. I don’t. 

Senator SCHUMER. Okay. Again, when Bud Cummins was told in 

the summer of 2006 that he was to leave, did those who told him 

have the idea of a replacement in mind? 

32

Mr. MCNULTY. I don’t know for a fact, but I am assuming that—

and being straightforward about this—the notion here was to install Mr. Griffin as an interim, give him an opportunity to go into 

that district and then to work with the home-State Senators on 

identifying the nominee who would be sent to the Committee for 

the confirmation process. So I just want to assume that when Mr. 

Cummins was contacted, there was already a notion that Mr. Griffin would be given an opportunity—

Senator SCHUMER. You are assuming that? 

Mr. MCNULTY. That is, I think, a fair assumption. 

Senator SCHUMER. All right. Let me ask you this, because we will 

get some of these answers in writing about outside involvement 

and what specifically happened in the Bud Cummins case. It sure 

does not smell too good, and you know that, and I know that. But 

maybe there is a more plausible explanation than the one that 

seems to be obvious to everybody. But let’s go on to these questions. 

Did the President specifically approve of these firings? 

Mr. MCNULTY. I am not aware of the President being consulted. 

I don’t know the answer to that question. 

Senator SCHUMER. Okay. Can we find out an answer to that? 

Mr. MCNULTY. We will take it back. 

Senator SCHUMER. Was the White House involved in any way? 

Mr. MCNULTY. These are Presidential appointments. 

Senator SCHUMER. Exactly. 

Mr. MCNULTY. So White House Personnel I am sure was consulted prior to making the phone calls. 

Senator SCHUMER. Okay. But we do not know if the President 

himself was involved, but the White House probably was. 

When did the President become aware that certain U.S. Attorneys might be asked to resign? 

Mr. MCNULTY. I don’t know. 

Senator SCHUMER. Okay. Again, I would ask that you get back 

to us on that. 

And the fourth question, which I am sure you cannot answer 

right now: Was there any dissent over these firings? Do you know 

if there was any in the Justice Department? Did some people say, 

‘‘Well, we shouldn’t really do this’’ ? 

Mr. MCNULTY. I am not aware of that. To the contrary, actually, 

you know Dave Margolis. 

Senator SCHUMER. I do. 

Mr. MCNULTY. He has been involved in all of the interviews for 

every interim who has been put in in this administration. He has 

been involved in every interview for every U.S. Attorney that has 

been nominated in this administration. We have a set group of people and a set procedure that involves career people. Dave actually 

takes the lead role for us in that, and Dave was well aware of this 

situation. 

And so apart from objections, I know of folks who believe that 

we had the authority and the responsibility to oversee the U.S. Attorney’s Offices the way we thought was appropriate. 

Senator SCHUMER. Okay. Let me get to the EARS evaluations. 

Now, you agree that the EARS evaluations address a broad range 

of performance criteria that is a pretty good—you said it is not the 

33

only criteria, but it is a pretty good basis to start with. Is that fair 

to say? 

Mr. MCNULTY. It can be in some instances. It just depends on 

what was going on at that office at that time that those evaluators 

might have been able to spot. 

Senator SCHUMER. Okay. Have you seen each—for each of the 

seven fired U.S. Attorneys, have you seen the EARS evaluations? 

Mr. MCNULTY. I have not seen all the evaluations involved in 

these cases, no. 

Senator SCHUMER. Okay. Well, you had said you would be willing 

to talk over with us what was in those evaluations in private so 

you would protect the reputations of the U.S. Attorneys. Can we do 

that this week? 

Mr. MCNULTY. Sure. We can try and make that available. 

Senator SCHUMER. Great. Thank you. I very much appreciate 

that. 

And do you have any objection in private of providing these evaluations to the Committee, the EARS evaluations? 

Mr. MCNULTY. The only reason why I am hesitating on that is 

because evaluations like that are what we would normally call deliberative material, and Senator Specter and I have discussed this, 

you know, about the Committee’s oversight responsibilities, and I 

respect the Committee’s ability to get information. But often the 

Committee shows comity to the Department by appreciating the 

sensitivity of certain things. And we have appreciated your respect 

for that. And these evaluations are done by career U.S. Attorney 

Office staff who go into an office and look at it. It is deliberative. 

It provides information that could be prejudicial to some people. 

And so that is the only reason why I am not sitting here saying, 

‘‘Sure.’’ I want—

Senator SCHUMER. Sure, I understand. 

Mr. MCNULTY.—to go back and I want to think about what our 

policy is. 

Senator SCHUMER. But don’t you agree that probably, given the 

sensitivities that you have and given the questions we have, it 

seems to me logical we could work out something that would protect the reputations of those you wish to protect and still answer 

our questions. 

Mr. MCNULTY. My goal is to give you as much information as we 

possibly can to satisfy your concerns that nothing was done wrong 

here. 

Senator SCHUMER. Good. Okay. And we will endeavor to have the 

meeting this week, and the legislation is moving. Maybe we can 

clear the air on all of this—or figure out what happened, anyway, 

soon. 

Let me just ask you this in terms of more shoes that might drop: 

Is the job of Dan Dzwilewski—now, this is the Special Agent in 

San Diego. He defended Carol Lam. He called the firing ‘‘political.’’ 

He is the head FBI man over there. Is his job in any danger? 

Mr. MCNULTY. No. 

Senator SCHUMER. Good. Next, are there any—

Mr. MCNULTY. Certainly—let me just put this—not for reasons 

related to that comment. 

Senator SCHUMER. As of today. 

34

Mr. MCNULTY. If the FBI has some other matter and I don’t 

know—

Senator SCHUMER. I understand. Okay. We don’t want him to 

have a carte blanche. We just don’t want him to be fired for speaking his mind here. Okay. 

Are there any more firings that might be expected, any other 

U.S. Attorneys who are going to be asked to resign in the very near 

future for the law that Senator Feinstein and Senator Specter 

are—‘‘reinstating,’’ I guess is the right word—takes effect? 

Mr. MCNULTY. I am not aware of any other plans at this point 

to do that. 

Senator SCHUMER. Would you be willing to let the committee 

know if there were any plans, or at least the home-State Senators 

to know if there are any further plans in this regard before those 

kinds of firings could occur? 

Mr. MCNULTY. That seems rather broad. 

Senator SCHUMER. Okay. Why don’t you get back to us? 

Mr. MCNULTY. We would just have to think about what you are 

asking there. We want to consult with the home- State Senators of 

filling those seats. I am not sure if it is good policy for the executive branch to consult with the home-State Senator before removing somebody from a position. 

Senator SCHUMER. It really has not—I don’t know if it has happened in the past. At least it has not in—I mean, I have had good 

consultations with the Justice Department on the four U.S. Attorneys in New York. By the way, none of them are going to be asked 

to resign in the next month or so, are they? 

Mr. MCNULTY. We have no—no one is currently being contemplated right now. 

Senator SCHUMER. Okay. But it is something maybe you should 

consider, given everything that is happening here. And if, you 

know, there is a legitimate reason that somebody should be removed, it might clear the air if the home-State Senators or someone outside of the executive branch were consulted, and the most 

logical people are, given the traditions, the home-State Senators. 

So I would ask you to consider that. 

Mr. MCNULTY. I appreciate that. 

Senator SCHUMER. But you don’t have to get me an answer here. 

Let me ask you about one further person. There is a U.S. Attorney in Texas. Senator Cornyn has left. He might have more to say 

about this. But Johnny Sutton has come under considerable fire for 

prosecuting two border agents who shot an alien smuggler. There 

have been public calls for his ouster by more than one Congressman. Is his performance in any danger? 

Mr. MCNULTY. No. 

Senator SCHUMER. Okay—I mean, is his position in any danger. 

Okay. 

I would now like to go on to Carol Lam. We talked a little bit 

about this. Senator Sessions mentioned all the Congress people 

who had written letters. I would just ask Senator Sessions one 

thing: Were those bipartisan letters, do you know? I don’t know 

who the 13 or 18—

Senator SESSIONS. I don’t know if it was 13 or 19 people. 

35

Senator SCHUMER. Okay. Well, if you could submit those letters 

to the record, we could answer that question. 

Senator SESSIONS. I would be glad to. 

Senator SCHUMER. Great. Without objection. 

Now, given the velocity, the heat of the investigations that have 

gone on in Southern California, did the Justice Department consider the chilling effect or the potential chilling effect on those 

prosecutions when Carol Lam was fired? I mean, shouldn’t it have 

been a factor as you weighed it? 

Mr. MCNULTY. Certainly. 

Senator SCHUMER. Do you know if they did? 

Mr. MCNULTY. Yes. We—I have to be careful here because, 

again, I am trying to avoid speaking on specifics. But we would be 

categorically opposed to removing anybody if we thought it was 

going to have either a negative effect in fact or a reasonable appearance. Now, we can be accused of anything. We cannot always 

account for that. But as far as a reasonable perception and factual, 

that would be a very significant consideration. We would not do it 

if we thought it was, in fact, interfere with a case. 

Senator SCHUMER. So there were discussions about this specific 

case, and people dismissed any chilling effect—

Mr. MCNULTY. Anytime we would ask for someone—

Senator SCHUMER. Or even as Senator Whitehouse mentioned, 

the break in the continuity of important ongoing prosecutions. Was 

that considered in this specific instance? 

Mr. MCNULTY. Anytime we do this, we would consider that, and 

may I say one more thing about it. What happened in the prosecution of Congressman Cunningham was a very good thing for the 

American people and for the Department of Justice to accomplish. 

We are proud of that accomplishment. And any investigation that 

follows from that has to run its full course. Public corruption is a 

top priority for this Department, and we would only want to encourage all public corruption investigations and in no way want to 

discourage them. And our record I think speaks for itself on that. 

Senator SCHUMER. Were you involved in the decision to dismiss 

Carol Lam? 

Mr. MCNULTY. I was involved in all of this, not just any one person. But I was consulted in the whole decision process. 

Senator SCHUMER. Okay. And did you satisfy yourself that—I 

mean, it would be hard to satisfy yourself about an appearance 

problem. 

Mr. MCNULTY. Right. 

Senator SCHUMER. Because there obviously was going to be an 

appearance problem. On the other hand, certain factors at least in 

the Justice Department must have outweighed that. It would be 

hard to believe that Carol Lam was dismissed without cause in 

your mind. You must have had some cause. 

Mr. MCNULTY. All of the changes that we made were performance related. 

Senator SCHUMER. Okay. And we will discuss that privately towards the end of the week, so I am not going to try to put you on 

the spot here. But I do want to ask you this: Did anyone outside 

the Justice Department, aside from the letters we have seen that 

Senator Sessions mentioned, urge that Carol Lam be dismissed? 

36

Mr. MCNULTY. I don’t know. 

Senator SCHUMER. Okay. Could you get an answer to that? 

Mr. MCNULTY. You mean anyone—because those letters—

Senator SCHUMER. Those are public letter. 

Mr. MCNULTY.—may not be the only letters we have received. 

We may have received—

Senator SCHUMER. I know, but phone calls, any other—I would 

like you to figure out for us and get us answers on whether there 

were other people other than the people who signed—I don’t know 

who they were—who signed the letters that Senator Sessions mentioned, outside the Justice Department, who said—obviously, given 

the sensitivity of this, this is an important question—who said that 

Carol Lam should be dismissed. Can you get back to us on that? 

Mr. MCNULTY. Yes. 

Senator SCHUMER. Thank you. 

Mr. MCNULTY. I am only not giving you a definitive answer now 

because I am trying to avoid talking about any one district. 

Senator SCHUMER. Okay. 

Mr. MCNULTY. But the suggestion in your question would be 

whether there might have been some—let’s just say on a general 

matter, not referred to any one district—any undue influence on us 

from some on the outside. 

Senator SCHUMER. Oh, no, I did not ask that. I did not ask 

whether it was undue. 

Mr. MCNULTY. Well, I know you didn’t. But I mean generically, 

I can say with any change we made, they were not subject to some 

influence from the outside. 

Senator SCHUMER. I would just ask that when you meet with us, 

we get an answer to that question: Who from the outside urged, 

whether appropriately or inappropriately—it might be appropriate. 

Certainly a job—if you think a U.S. Attorney isn’t doing a good job, 

to let that be known that she be dismissed. 

Okay. Let me just ask you this: We are going to hear from a fine 

U.S. Attorney from the Southern District, former, and she says in 

her testimony—she quotes Robert Jackson as Attorney General, 

and he gave a noted speech to U.S. Attorney. He said this: ‘‘Your 

responsibility in your several districts for law enforcement and for 

its methods cannot be wholly surrendered to Washington, and 

ought not to be assumed by a centralized Department of Justice.’’ 

Do you agree with that? 

Mr. MCNULTY. I am not sure if I can say that I agree with everything being said in that. You know, what is tricky about this is 

that, Senator, you or any other Senator on this Committee might 

call us on another day and say to us, ‘‘I want to see more health 

care fraud cases done. You people have turned your back on that 

problem.’’ And we would get back to you and say, ‘‘Absolutely, Senator. We will take that seriously.’’ 

But how could we do that if we did not have some confidence 

that if we turned around and said to our U.S. Attorneys, ‘‘We need 

you to prioritize health care fraud. It is a growing problem in our 

country, and you need to work on it’’ ? Now, that is a centralized 

Washington responsibility going out to the field. So I believe in the 

Department of Justice this does act with some control over its priVerDate 0ct 09 2002 14:41 Jun 19, 2007 Jkt 035798 PO 00000 Frm 00040 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\35798.TXT SJUD1 PsN: CMORC
37

orities and its use of its resources. I don’t believe, however, that 

that should go to the question of the integrity or the judgment—

Senator SCHUMER. And he uses the word, in all fairness, he uses 

the word ‘‘wholly.’’ He does not say Washington should have no influence. He says ‘‘...cannot be wholly surrendered to Washington...’’ 

Mr. MCNULTY. Well, then, I would agree with that. 

Senator SCHUMER. Okay. A final question, and I appreciate the 

indulgence of my colleagues here, and I will extent to them the 

same courtesy. On the Feinstein-Specter bill, does the administration—unless you want to ask about this, Arlen, and then—no? 

Okay. 

Senator SPECTER. Well, wait a minute. Are you saying I only 

have 23 minutes and 28 seconds left? 

[Laughter.] 

Senator SCHUMER. You can have double that if you wish. 

Let’s see. Then I will ask it. What objection do you have to Feinstein’s bill, the one that Senator Feinstein and Senator Specter put 

in, which restores a system which seemed to be perfectly adequate 

for 20 years, including in the Reagan administration, the Bush administration, and the first 6 years of this administration? Are you 

aware of any legal challenges prior to 2006 to the method of appointing U.S. Interim Attorneys? 

Mr. MCNULTY. Well, there are two issues or two legislative proposals that we seem to be talking about. One, I think, is the bill 

I have in front of me, which is S. 214. And if I am reading it correctly, it goes beyond what existed prior to the amendment in the 

PATRIOT Act. It gives the appointment authority to the district 

court, the chief judge of the district, completely. And if I am wrong, 

someone can correct me on that, but that is my reading of the legislation. 

Now there is another idea on the table, which is to restore it to 

what it was prior to the PATRIOT Act, which gave the Attorney 

General the authority to appoint someone for 120 days, and then 

the chief judge would appoint that person afterwards. 

Are you asking me about the latter more than the—

Senator SCHUMER. Yes. I am asking you would you have objection, because as I understand it, the sponsors simply want to restore what existed before the PATRIOT Act change. Would the administration be opposed to that? 

Mr. MCNULTY. Our position, I think, would be opposition. But we 

recognize that that is better than what the original legislation is, 

and the reason is because we supported what was done in the PATRIOT Act because we think it cleaned up a problem that, though 

it only came up occasionally—and in the great majority of cases, 

the system did work out okay. When it does come up, it can create 

some very serious problems. 

Senator SCHUMER. But you used the new PATRIOT Act language 

to go far beyond the specific problem that occurred in South Dakota. 

Mr. MCNULTY. Well, that is probably what we are here today to 

talk about. I don’t think that is true, but I understand your perspective on it. 

Senator SCHUMER. Okay. 

38

Mr. MCNULTY. And I think that if our concern—if that PATRIOT 

Act provision had never passed, what would have happened in Arkansas? Would we have been prohibited from going in and asking 

someone to step aside and placing a new person in? No. It is just 

that the person would have served for 210 days, and then the chief 

judge would have had to re-up the person. 

So we may still be talking about what happened in Arkansas, 

and there is a linkage being made to that provision and some initiative that we took afterwards, and there isn’t any linkage in our 

mind. 

Senator SCHUMER. I would argue to you—and this will be my last 

comment—that knowing that there is an outside independent judge 

of an interim appointment has a positive, prophylactic effect. It 

makes you more careful as to—it would make any executive more 

careful about who that interim appointment should be. 

Senator Specter? 

Senator SPECTER. Thank you. 

Are you saying that the Department of Justice will not object to 

legislation which returns status quo antebellum—because this has 

been a war—prior to the amendments of the PATRIOT Act? 

Mr. MCNULTY. I am not saying we will or we will not object because, sitting here at the table today, I cannot take a position on 

that legislation. I have to go back and have that decision made. 

I am saying, though, that we support the law as it currently 

stands, and if we come back and object to the legislative idea that 

you have talked about here today, that would be the reason. But 

I am not specifically saying today that we are going to object. We 

have to make a decision in the appropriate way. 

Senator SPECTER. That is a ‘‘don’t know.’’ 

Mr. MCNULTY. Correct. 

Senator SPECTER. Would you be willing to make a commitment 

on situations where the Attorney General has an interim appointment to have a presidential appointment within a specified period 

of time? 

Mr. MCNULTY. Don’t know. 

Senator SPECTER. Well, that clarifies matters—

Mr. MCNULTY. I would have to go back and think about that, but 

I understand the idea. 

Senator SPECTER. I like brief answers and brief lines of questioning. 

Would you consult with the home-State Senator before the selection of an Interim U.S. Attorney? 

Mr. MCNULTY. We have not done that to date. It—

Senator SPECTER. I know that. Would you? 

Mr. MCNULTY. Well, it is something that is worth considering, 

and it can be a very helpful thing if—

Senator SPECTER. Will consider? 

Mr. MCNULTY. Will we consider doing that. 

Senator SPECTER. Well, that is what you are saying. I am trying 

to find your answer here. 

Mr. MCNULTY. Right. 

Senator SPECTER. Will consider? 

Mr. MCNULTY. Yes, we will consider that possibility. 

39

Senator SPECTER. All right. I have 24 more questions, but they 

have all been asked twice. And I would like to—

Senator SCHUMER. It is good to be the Chairman, isn’t it? 

Senator SPECTER. And I would like to—I certainly enjoyed it. 

[Laughter.] 

Senator SPECTER. The gavel was radioactive when I had it. And 

I would like to hear the next panel, so I will cease and desist. 

Senator SCHUMER. Thank you. And I will still call you ‘‘Mr. 

Chairman’’ out of respect for the job you did. 

Senator Whitehouse? 

Senator WHITEHOUSE. Thank you. Sorry to step out for a while. 

We have the Iraq budget down in the Budget Committee, so we are 

called in many directions here. 

Mr. McNulty, you said that the firings were performance related 

and that there was a set procedure that involves career people that 

led to this action. To go back to the Washington Post, ‘‘One administration official,’’ says the Post, ‘‘who spoke on the condition of anonymity in discussing personnel issues, said the spate of firings 

was the result of’’—and here is the quote from the administration 

official- -‘ ‘‘pressure from people who make personnel decisions outside of Justice’ ’’—capital J, the Department—‘ ‘‘who wanted to 

make some things happen in these places.’ ’’ 

Mr. MCNULTY. Whoever said that was wrong. That is—I don’t 

where they would be coming from in making a comment like that 

because, in my involvement with this whole process that is not a 

factor in deciding whether or not to make changes or not. So I just 

don’t know—

Senator WHITEHOUSE. What is not a factor? 

Mr. MCNULTY. Well, that quote suggests agendas, political or 

otherwise, outside of the Department. And in looking at how to—

or who should be called or encouraged to resign or changes made, 

they are based upon reasons—they weren’t based upon cause, but 

they were based upon reasons that were Department related and 

performance related, as we have said. And so I don’t ascribe any 

credibility to that quote in the newspaper. 

Senator WHITEHOUSE. Okay. Would you agree with me that—

when you are in the process of selecting a United States Attorney 

for a vacancy, it makes sense to cast your net broadly, make sure 

you have a lot of candidates, choose among the best, and solicit 

input from people who are sort of outside of the law enforcement 

universe? Would you agree with me that it is different when you 

have a sitting United States Attorney who is presently exercising 

law enforcement responsibilities in a district how and whether you 

make the determination to replace that individual? 

Mr. MCNULTY. I think that is a fair concern and one distinction 

that is important to keep in mind. 

Senator WHITEHOUSE. You would not want to apply the same 

process to the removal of a sitting U.S. Attorney that you do when 

you are casting about for potential candidates for a vacancy? 

Mr. MCNULTY. I am not sure I fully appreciate the point you are 

making here. Could I ask you to restate it so I make sure that if 

I am agreeing with you, I know exactly what you are trying to say? 

Senator WHITEHOUSE. Yes, I think what I am trying to say is 

that when there is an open seat and you are looking for people to 

40

fill it, you can cast your net pretty broadly, and it is fair to take 

input from all sorts of folks. It is fair to take input from people in 

this building. 

Mr. MCNULTY. Oh, I see what you are saying. 

Senator WHITEHOUSE. It is fair to take input from people you 

know in law enforcement. It is fair to take input from people at the 

White House. It is fair to take input from a whole variety of 

sources. 

But it is different once somebody is exercising the power of the 

United States Government and is standing up in court saying, ‘‘I 

represent the United States of America.’’ And if you are taking that 

power away from them, that is no longer an appropriate process, 

in my view, and I wanted to see if that view is shared by you. 

Mr. MCNULTY. I think I appreciate what you are saying there, 

and I think that when it—you know, there are two points. The first 

is that we believe a U.S. Attorney can be removed—

Senator WHITEHOUSE. Of course. 

Mr. MCNULTY.—for reason or for no reason, because they serve 

at the pleasure of the President. But there is still a prudential consideration. There has got to be good judgment exercised here. And 

when that judgment is being exercised, there have to be limitations 

on what would be considered. I think that is what you are suggesting. And there is going to be a variety of factors that may or 

may not come out in an EARS report or some other kind of welldocumented thing. But it comes down to a variety of factors that 

have to do with the performance of the job, meaning management—

Senator WHITEHOUSE. But they are truly performance related. 

You do not just move around because, you know, somebody in the 

White House or somebody in this building thinks, ‘‘You know what? 

I would kind of like to appoint a U.S. Attorney in Arkansas. Why 

don’t we just clear out the guy who is there so that I can get my 

way.’’ That person might very well, with respect to a vacancy, say, 

‘‘I want my person there,’’ and that is a legitimate conversation to 

have, whether you choose it or not. But it is less legitimate when 

there is somebody in that position, isn’t it? 

Mr. MCNULTY. Yes, I hear the distinction you are trying to make 

there. I am not sure I agree with it. The change that is occurring 

by bringing a new person in versus the change that is occurring by 

bringing a person in to replace an interim, I am not sure if I appreciate the dramatic distinction between them. If the new person is 

qualified and if you are satisfied that it is not going to interfere 

with an ongoing case or prosecution, it is not going to have some 

general disruptive effect that is not good for the office—

Senator WHITEHOUSE. Well, there is always some disruptive effect when you replace—

Mr. MCNULTY. There is always some, right. The question is: Is 

it undue or is it substantial beyond the kind of normal turnover 

things that occur? 

I think that there needs to be flexibility there to make the 

changes that need to be made. 

Senator WHITEHOUSE. Finally, have the EARS evaluations 

changed since I had the pleasure of experiencing one? Do you still 

go and talk to all the judges in the district? Do you still go and talk 

41

to all the agencies that coordinate with the United States Attorney’s Office in the district? Do you still go and talk to community 

leaders like the Attorney General and police chiefs who are regular 

partners and associates in the work of the Department of Justice 

in those areas? 

Mr. MCNULTY. That is right. And I don’t know if you were in the 

room when I was having this exchange with Senator Schumer, but 

I want to say it one more time to make it clear. We are ready to 

stipulate that the removal of U.S. Attorneys may or may not be 

something supported by an EARS report, because it may be small 

business performance related that is not the subject of what the 

evaluators saw or when they saw it or how it came up and so forth. 

I go back to this point because I know that your and Senator 

Schumer’s interest in seeing them is because you want to try to 

identify ‘‘the thing,’’ and say, well, there is justification—or there 

is not, right? And if there is not, the assumption should not be 

made that, therefore, we acted inappropriately or that there wasn’t 

other performance- related information that was important to us. 

Senator WHITEHOUSE. No, but given the scope of the EARS evaluations, which really went into every nook and cranny of the operational scope of my U.S. Attorney’s Office, the idea that there is 

something else somewhere that might appear and justify the removal of a U.S. Attorney and yet be something that all of the 

judges in the district, all of the Federal law enforcement agencies 

in the district, the police chiefs and other coordinating partners 

with that U.S. Attorney, that all of them were completely unaware 

of and that never surfaced in the EARS evaluation would be somewhat of an unusual circumstance and I think would require a little 

bit of further exploration. 

Mr. MCNULTY. Well, I appreciate the need for further explanation, and we are committed to working with you to get the answers you are looking for. But maybe EARS reports have changed 

a bit, but the management of the Department of Justice has 

changed a bit, too. Because when we announce priorities, we mean 

it, and priorities and how an office has responded to those priorities may not be measured by the evaluators the way that other 

things, the more nuts and bolts things are. And that is where those 

reports are very valuable, but they do not always tell the full story. 

Senator WHITEHOUSE. We will follow up. 

Thank you, Mr. Chairman. 

Senator SCHUMER. Senator Sessions? 

Senator SESSIONS. Thank you. I think this is a most interesting 

discussion. I do have very, very high ideals for United States Attorneys. I think that is a critically important part of our American 

justice system. I think sometimes that the Department of Justice 

has not given enough serious thought to those appointments, has 

not always given the best effort to selecting the best person. 

President Reagan, when he was elected and crime was a big 

problem, he promised experienced prosecutors, and I think that 

was helpful. I had been an Assistant for 2 years, 21⁄2 years, and 

that is how I got selected. And I did know something about prosecuting cases. I tried a lot of cases, and I knew something about 

the criminal system. 

42

So I think Giuliani is correct. You need to have somebody who 

can contribute to the discussion, who knows something about the 

business. 

With regard to Arkansas, I just took a quick look, and I don’t 

think that Mr. Cummins had any prior prosecutorial experience before he became U.S. Attorney, did he? 

Mr. MCNULTY. That is correct. He did not. 

Senator SESSIONS. But Mr. Griffin had at least been a JAG prosecutor in the military and had been to Iraq, and he had tried people there, had he not? 

Mr. MCNULTY. Tim Griffin had actually prosecuted more cases 

than a lot of U.S. Attorneys who go into office. A lot of people come 

from civil backgrounds or policy backgrounds, and he actually had 

been in court, whether as a JAG here in Fort Campbell, where he 

tried a very high- profile case, or over in Iraq or as a Special Assistant in that office. And I don’t think we should look lightly upon 

his experience as a prosecutor. 

Senator SESSIONS. And he spent a good bit of time with General 

Petraeus, I guess, with the 101st in Mosul, Iraq, as an army JAG 

officer. So, anyway, he had some skills and experience beyond politics. 

But I want to join with Senator Schumer and my other colleagues in saying I think we need to look at these appointments 

maybe in the future more carefully. It is a tough job. You have to 

make tough decisions. I remember—I guess I took it as a compliment—people said that Sessions would prosecute his mother if 

she violated the law. I guess that was a compliment. I tried to take 

it as that. So I want to say that. 

With regard to the problem of a judge making this appointment, 

you end up, do you not, with a situation in which the judge is appointing the prosecutor to try the poor slob that is being tried before him? 

Mr. MCNULTY. Right. 

Senator SESSIONS. In other words, here he is appointing the guy 

to try the guy, and that really is not a healthy approach for a lot 

of reasons, and it is not consistent with the Constitution, to my 

way of thinking, which gives the oversight of U.S. Attorneys to the 

Senate in the confirmation process, and to some degree the House, 

because they have got financial responsibilities and so forth. 

Is that a problem in your mind that a judge would actually be 

choosing the person and vouching for the prosecutor who will try 

the defendant that he is required to give a fair trial to? 

Mr. MCNULTY. We have cited that as one of the issues that justified the provision that was in the PATRIOT Act. 

Senator SESSIONS. And are there any other circumstances which 

Federal judges appoint other officers of other Federal agencies that 

you know of? 

Mr. MCNULTY. I am not aware of a situation where someone in 

another agency. I know certainly situations where someone from 

private practice was appointed, and that creates difficulties because of—

Senator SESSIONS. No, I am talking about do they ever- -do they 

have any authority if there is uncertainty over a Department of 

43

Treasury official or a Department of Commerce official that a Federal judge—

Mr. MCNULTY. Oh, I see your question. 

Senator SESSIONS.—would appoint those appointments? 

Mr. MCNULTY. No. This is unique, actually, and I think that is 

another argument—

Senator SESSIONS. Yes, I do not think it—I think it is a serious 

matter. 

Now, Senator Schumer, let’s think about this. Would it help—

and I will ask you your comments, Mr. McNulty—if we had some 

sort of speedy requirement to submit the nominee for confirmation 

and give the oversight to the Senate where the Constitution seems 

to give it? How would you feel about that? 

Mr. MCNULTY. I appreciate what you are trying to do there, and 

we agree with the spirit of that, that we want to get the names up 

here as fast as possible. The problem is we do not control completely the process for getting the names, because when we are 

working with home-State Senators or some other person to provide 

names to us for us to look at, that is a step that is beyond our control. And it could create problems if there is a set time period—

Senator SESSIONS. Well, it could create problems for you, but you 

are going to have some sort of problems because you are not unilaterally empowered to appoint United States Attorneys. You do not 

have a unilateral right. So somebody is going to have some oversight. 

Mr. MCNULTY. Yes. 

Senator SESSIONS. In the other system, you had 120 days and a 

Federal judge had the responsibility. So you cannot have it like you 

would like it. 

Mr. MCNULTY. Well, I appreciate that, and I am not trying to 

sound greedy. I am just saying that if we are talking specifically 

about the idea of a timetable, that is what we would have to look 

at. 

I would actually like to see the Committee just judge us on our 

track record and look at the openings, look at the interims, look at 

the nominees, and how long it takes to get to a nomination and 

then the confirmation. And based upon the track record, that is the 

oversight, that is the accountability. And I think the record we 

have is pretty good. 

I would like to say one other thing, Senator. Your experience in 

Alabama and Senator Schumer’s experience in New York I think 

illustrates how appointing somebody to come into a district as an 

interim, who may eventually get nominated and confirmed, can be 

a very positive thing. Both in Senator Schumer’s case where my 

predecessor, Jim Comey, was actually an Assistant United States 

Attorney in my office—and he is from Virginia, and he came up as 

an assistant to New York to be the interim, sent by Main Justice 

to New York, but he had connections there and a root there where 

he started his career. And he was an interim, and then he got nominated for that position later. And then the same thing happened 

in South Alabama, and it can be a very positive way of dealing 

with a vacancy and putting a competent person in place that does 

not come from within that same office. 

44

Senator SESSIONS. I do think that we have a responsibility to at 

some point confirm United States Attorney nominees if there is 

time sufficient to do so, but the position cannot go vacant. Somebody has got to hold the job in every district at some point in time 

because the work of the office cannot continue without somebody 

as the designated United States Attorney. 

I would note that I don’t know Arkansas. I think you have 

learned that you have got to be careful with these offices. There are 

perceptions out there. Senator Pryor is concerned about this appointment. He is a good man, a former Attorney General. It would 

have been better, I think, had you been a little more careful with 

that appointment, although the nominee I think has got a far better track record than some would suggest, the new U.S. Attorney. 

I would note that we could give—I will just say it this way. Most 

of us in the Senate do not review the U.S. Attorney appointments 

personally. Staff reviews them, and we hear if there are objections 

and get focused on it if there is a problem. I think we all probably 

should give a little more attention to it and we hold the administrations as they come forward to high standards about appointments, because it is a very important office. 

Mr. MCNULTY. Senator Sessions, to be clear on Arkansas, Tim 

Griffin is an interim appointment, and consulting with Senator 

Pryor and Senator Lincoln has been going on for some time. And 

a nomination in that district will be made in consultation with 

them. In fact, we will even take his statement that he made here 

today and look at it closely and see what it is. He said today he 

was going to talk to Attorney General Gonzales. 

That is the process that we are committed to following. There is 

no effort here to go around Senator Pryor or Senator Lincoln and 

find a nominee that they would not support. And so that approach 

in Arkansas has been the same that we have used in all the other 

places where we seek the guidance and the input from the homeState Senators as we look for someone we can get confirmed by the 

Senate. 

Senator SESSIONS. I would just conclude by noting that there is 

a danger when politicians get involved in appointments, and particularly when United States Attorneys have to make tough charging decisions like the Border Patrol shooting and other things like 

that. And we have got to be real careful about that. 

I would just say, though, when it comes to priorities of an Assistant U.S. Attorney or the Department of Justice or a U.S. Attorney, 

then I think the political branch does have a right to question 

whether the right priorities are being carried out. 

Thank you, Mr. Chairman. 

Senator SCHUMER. Well, thank you, and I want to thank you, Mr. 

McNulty. This is not an easy thing for you to come and testify to, 

and I appreciate your candor in admitting that Bud Cummins was 

not fired for any particular reason, your willingness to come and 

talk with us so we can figure out exactly what went on this week, 

as well as your inclination to both submit the EARS reports and 

give us information about any outside influences on this. That will 

be very helpful not only here, but in establishing a smooth working 

relationship between this Committee and the Justice Department 

in the new Congress. And the proof of the pudding, obviously, is 

45

going to be in the eating, but I think we look forward to getting 

real information about what happened here. 

Thank you. 

Mr. MCNULTY. Thank you. 

Senator SCHUMER. Okay. Let me call our next three witnesses, 

and we appreciate them for their patience. First is Mary Jo White. 

She is currently a partner at the New York law firm of Debevoise 

& Plimpton, the first and only woman to have served as the U.S. 

Attorney for the Southern District, which many view as the best 

Federal prosecutor’s office in the country. Ms. White has a lot to 

do with the fine reputation of that office, and her own reputation 

for excellent and integrity is unparalleled. A graduate of William 

and Mary and Columbia Law School, she was an officer of the Law 

Review, and I also owe her a personal debt of gratitude because my 

chief counsel, who has done a great job here, Preet Bharara, sort 

of worked under her when she lured him away from private practice, and he is still there. 

Professor Laurie Levenson is currently Professor of Law and William M. Rains Fellow at Loyola Law School in Los Angeles. She 

teaches criminal law, criminal procedure, ethics, antiterrorism, and 

evidence. Prior to joining the faculty at Loyola Law School, Ms. 

Levenson spent 8 years as an Assistant U.S. Attorney, where she 

prosecuted violent crimes, narcotic offenses, white-collar crimes, 

immigration, and public corruption cases. She is a graduate of 

Stanford and the UCLA Law School, where she was chief articles 

editor for the Law Review. 

Stuart Gerson is currently head of the litigation practice at the 

law firm of Epstein, Becker & Green. He joined as a partner in 

1980. Prior to his return to private practice, Mr. Gerson served as 

Assistant Attorney General for the Civil Division at the Department of Justice under both President George H.W. Bush and later 

as Acting Attorney General under President Clinton. He served as 

an Assistant U.S. Attorney in the District of Columbia and is a 

graduate of Penn State and the Georgetown University Law Center. 

Would all three of you please rise? Do you affirm that the testimony you are about to give before the Committee will be the truth, 

the whole truth, and nothing but the truth, so help you God? 

Ms. WHITE. I do. 

Ms. LEVENSON. I do. 

Mr. GERSON. I do. 

Senator SCHUMER. Thank you. 

Ms. White, you may proceed. 

STATEMENT OF MARY JO WHITE, PARTNER, DEBEVOISE & 

PLIMPTON, LLP, NEW YORK, NEW YORK 

Ms. WHITE. Thank you very much, Senator Schumer, Senator 

Specter. I am honored to appear before you today. I have spent 

over 15 years in the Department of Justice both as an Assistant 

United States Attorney—the best job you can ever have—and as 

United States Attorney. I served during the tenures of seven Attorneys General of both political parties, most recently John Ashcroft. 

I was twice appointed as an Interim U.S. Attorney, first in the 

Eastern District of New York in 1992 by Attorney General William 

46

Barr—and I heard from Mr. Gerson that he also had a hand in 

signing those papers—and then in 1993 I was appointed as Interim 

U.S. Attorney in the Southern District of New York by Attorney 

General Janet Reno. Most recently, as Senator Schumer indicated, 

I served for nearly 9 years as the presidentially appointed U.S. Attorney in the Southern District of New York from 1993 until January 2002. 

Before I comment substantively on the issues before the Committee, let me make very clear up front that I have the greatest 

respect for the Department of Justice as an institution, and I have 

no personal knowledge of the facts and circumstances regarding 

any of the reported requests for resignations of sitting United 

States Attorneys. Because I do not know the precipitating facts and 

circumstances, I am not in a position to either support or criticize 

the particular reported actions of the Department and do not do so 

by testifying at this hearing. I am, however, troubled by the reports 

that at least some United States Attorneys—well regarded—have 

been asked by the Department to resign without any evidence of 

misconduct or other apparent significant cause. I do find that troubling—if that happened, or even the appearance of that happening—tends to undermine the importance of the office of the 

United States Attorney, the independence of the United States Attorneys, and the public’s sense of evenhanded and impartial justice. 

Casual or unwisely or insufficiently motivated requests for U.S. 

Attorney resignations or the perception of such requests diminish 

our system of justice and the public’s confidence in it. 

United States Attorneys are political appointees who do serve at 

the pleasure of the President. It is, thus, customary and expected 

that the U.S. Attorneys generally will be replaced when a new 

President of a different party is elected. There is also no question 

that Presidents have the power to replace any United States Attorney they have appointed for whatever reason they choose. 

In my experience and to my knowledge, however, it would be unprecedented for the Department of Justice or the President to ask 

for the resignations of U.S. Attorneys during an administration, except in rare instances of misconduct or for other significant cause. 

This is, in my view, how it should be. U.S. Attorneys are the chief 

law enforcement officers in their districts, subject to the general supervision of the Attorney General. Although political appointees, 

the U.S. Attorneys, once appointed, play a critical and non-political, 

impartial role in the administration of justice in our Federal system. 

Senator Schumer alluded to this, but in his well-known address 

to the United States Attorneys in 1940, then- Attorney General 

Robert H. Jackson, although acknowledging the need for some 

measure of centralized control and coordination by the Department, 

emphasized the importance of the role of the U.S. Attorneys and 

their independence. He said, ‘‘The prosecutor has more control over 

life, liberty, and reputation than any other person in America. His 

discretion is tremendous....Because of this immense power....the 

post of [United States Attorney] from the very beginning has been 

safeguarded by presidential appointment, requiring confirmation of 

the Senate of the United States....Your responsibility in your several districts for law enforcement and for its methods cannot be 

47

wholly surrendered to Washington, and ought not to be assumed by 

a centralized Department of Justice....Your positions are of such 

independence and importance that while you are being diligent, 

strict, and vigorous in law enforcement you can also afford to be 

just.’’ 

In my view, the Department of Justice should guard against acting in ways that may be perceived to diminish the importance of 

the office of United States Attorney or of its independence. Taking 

nothing away from the career Assistant United States Attorneys 

and other career attorneys in the Justice Department, changing a 

United States Attorney invariably causes disruption and often loss 

of traction in cases and investigations. This is especially so in sensitive or controversial cases where the leadership and independence 

of the U.S. Attorney are often crucial to the successful pursuit of 

such matters, particularly in the face of criticism or political backlash. 

Replacing a U.S. Attorney can, of course, be necessary or part of 

the normal and expected process that accompanies a change of the 

political guard. But I do not believe that such changes should, as 

a matter of sound policy, be undertaken lightly or without significant cause. 

If U.S. Attorneys are replaced during an administration without 

apparent good cause, the wrong message can be sent to other U.S. 

Attorneys. We want our U.S. Attorneys to be strong and independent in carrying out their jobs and the priorities of the Department. We want them to speak up on matters of policy, to be appropriately aggressive in investigating and prosecuting crimes of all 

kinds, and wisely use their limited resources and broad discretion 

to address the priorities of their particular districts. 

In my opinion, United States Attorneys have historically served 

this country with great distinction. Once in office, they become impartial public servants, doing their best to achieve justice without 

fear or favor. I am certain that the Department of Justice would 

not want to act in such a way or have its actions perceived in such 

a way to derogate from this model of the non-political pursuit of 

justice by those selected in an open and transparent manner. 

Thank you very much. I will be happy to answer your questions. 

[The prepared statement of Ms. White appears as a submission 

for the record.] 

Senator SCHUMER. Thank you, Ms. White. 

Professor Levenson? 

STATEMENT OF LAURIE L. LEVENSON, PROFESSOR OF LAW, 

WILLIAM M. RAINS FELLOW, AND DIRECTOR, LOYOLA CENTER FOR ETHICAL ADVOCACY, LOYOLA LAW SCHOOL, LOS 

ANGELES, CALIFORNIA 

Ms. LEVENSON. Thank you, Senator Schumer, thank you. 

Senator SPECTER. Thank you for the honor to be here today with 

this distinguished panel. I am here because as a former Assistant 

United States Attorney—which was the best job I ever had—and 

as a current professor of criminal law, I care deeply about our Federal criminal justice system. 

Does that work now? 

Senator SCHUMER. Yes. 

48

Ms. LEVENSON. Okay. I served in the United States Attorney’s 

Office for four different United States Attorneys of both parties and 

one Interim United States Attorney. I believe that we, in fact, have 

the best prosecutorial system in the world, but I am here because 

I fear that the operation of that system and its reputation for excellence is jeopardized because of the increased politicization of the 

United States Attorney’s Offices. 

As this Committee knows, the most recent concerns have focused 

on a rash of dismissals of experienced and respected United States 

Attorneys across the country. There is at least a strong perception 

by those in and outside of the United States Attorney’s Office that 

this is not business as usual, that qualified United States Attorneys are being dismissed and their replacements who are being 

brought in do not have the same experience and qualifications for 

the position. Moreover, there is a deep concern that the interim appointments by the Attorney General will not be subject to the confirmation process; and, therefore, there will be no check on those 

qualifications, and the interests of the offices will be sacrificed for 

political favors. 

I want to make three basic points in my testimony today. 

One, politicizing Federal prosecutors does have a corrosive effect 

on the Federal criminal justice system. It is demoralizing to 

AUSAs. These are the best and the brightest who go there because 

they are dedicated public servants, and they expect their leaders to 

be the same. It is also, as we have heard, disruptive to ongoing 

projects. It creates cynicism among the public. It makes it harder 

in the long run to recruit the right people for those offices. And as 

Mr. McNulty said, if you lose the AUSAs, you lose the greatest assets of all. 

Second, although there has always been a political component to 

the selection of United States Attorneys, what is happening now is 

categorically different. Traditionally, we saw changeover when 

there was a new administration. Thus, when President Clinton 

came in, he had every right to and did ask for those resignations. 

But we have never seen what we are seeing today, which is in 

quick succession seven U.S. Attorneys who have excellent credentials, successful records, and outstanding reputations being dismissed midterm. And we have never seen their interim replacements, at least some of them, coming in with the lack of experience 

and qualifications and being put in on an interim basis indefinitely 

without the prior process that we had for evaluation. 

We all recognize that Federal prosecutors serve at the pleasure 

of the President, and the Department of Justice controls many of 

the policies and the purse strings. But it has been a strong tradition of local autonomy and accountability and continuity that has 

made these district U.S. Attorneys successful, not the arbitrary dismissals in order to give others a fresh start. This is an important 

tradition. With local autonomy and continuity comes a greater ability to serve the needs of the district. 

Third, and finally, in my opinion, the prior system—which allowed the Attorney General to indeed appoint the Interim U.S. Attorney for 120 days, and then if there is no confirmed U.S. Attorney, have the chief judge make an interim appointment—was not 

49

only constitutional but, frankly, had advantages over the current 

procedures. 

First, it is constitutional because, under the Appointments 

Clause and the Excepting Clause to that, inferior officers, which 

U.S. Attorneys are, may be appointed by the President, courts of 

law, or heads of departments. And under the Supreme Court’s decision written by Chief Justice Rehnquist in Morrison v. Olson, the 

role of judges in appointing prosecutors has been held to be constitutional. In that case, which dealt with independent counsel, the 

Court cited a lower court case dealing with interim U.S. Attorneys 

and cited it favorably. 

I don’t think any of the panelists today and any of the witnesses 

I heard today, in fact, challenge the constitutionality of having 

judges in the process. But as Mr. Gerson eloquently states in his 

written testimony, it is a question of congressional discretion. 

As a matter of discretion, I think that the prior system, the one 

that Senators Specter and Feinstein are talking about returning to, 

has strong benefits in comparison to the new approach. 

Under that approach, the Attorney General makes the initial appointment. It gives plenty of time to the Department to come up 

with a nominee and present that nominee. And then if that is not 

able to happen in a timely fashion, the chief judge starts making 

appointments. And can chief judges do this in a fair way? Not only 

can they, but they have for decades. And that is because in my experience, frankly, the chief judges know the district often better 

than the people thousands of miles away in the Department of Justice. They know the practitioners in the courtrooms. They care 

about the cases in their courtroom. And those judges have the 

credibility and confidence of the public in making their appointments. They appoint magistrate judges, and they even appoint Federal public defenders who, while not Government officials, nonetheless readily and regularly appear before those judges. 

I personally have never heard of or seen a case where a judge 

exerted any pressure on the appointment of an Interim U.S. Attorney or when that person appeared before them because he had 

made that appointment. 

And I think we have to compare it to the current system under 

the PATRIOT Act where only the Attorney General is involved in 

the process and those interim appointments can be forever and 

there may be no or little oversight by the Senate because there is 

not the traditional confirmation process. 

So, in conclusion, I would like to say that whether or not the current Attorney General’s recent actions have been in good or bad 

faith, their impact has been the same. It has demoralized the 

troops. It has created the perception that politics is playing a greater role in Federal law enforcement. And it has stripped the Senate 

of its important role in evaluating and confirming the candidates. 

In my opinion the healthiest thing to do is not to rely just on 

what I am sure are the sincere promises of the Department of Justice officials of what they are not going to do with this interim 

power, but to put in some statutory scheme that allows flexibility 

of interim appointments but still has accountability. That would 

mean the Attorney General could make some interim appointments 

but would restore the Senate’s role as a check and balance. 

50

With that, I welcome any questions from the Committee. Thank 

you. 

[The prepared statement of Ms. Levenson appears as a submission for the record.] 

Senator SCHUMER. Thank you, Professor Levenson. 

Mr. Gerson? 

STATEMENT OF STUART M. GERSON, PARTNER, EPSTEIN, 

BECKER & GREEN, WASHINGTON, D.C. 

Mr. GERSON. Mr. Chairman, Senator Specter, it is a great delight 

always to testify before this Committee, especially as an old Justice 

Department hand. And I will concur—my wife thinks the best job 

I have ever had is being her husband, but in terms of what I got 

paid to do, certainly being an Assistant United States Attorney was 

a terrific job. 

Let me talk to a couple of contrarian issues, but first, Senator 

Schumer, given the lateness of the hour, I ask your parliamentary 

discretion in incorporating my written testimony as if read herein 

full. 

Senator SCHUMER. You are indeed an old Justice Department 

hand. Thank you. Without objection, Mr. Gerson’s entire statement 

will be entered into the record. 

Mr. GERSON. Thank you. 

I came here, different perhaps from anybody else, with an agenda, and coming last, I have the pleasure of having seen that agenda satisfied. I thought and think that S. 214 is a very bad idea. 

I thought that Senator Feinstein’s reaction, while understandable, 

was not finely enough drawn. And certainly returning to the previous method of appointments serially of Interim United States Attorneys is vastly superior to what was being proposed, which was 

taking the executive branch out of an executive function. But that 

battle now has been won. 

I urge you, though, to have hearings on it because it—the idea 

of including the judiciary at all is not without problems. Different 

from Ms. Levenson, I actually know of and have experienced some 

cases where judicial intervention has proved ill-advised and badly 

directed. 

But at the end of the day, I came here to speak for the Constitution, and I think the Constitution has gotten a good break out of 

the day. We function best when the Executive does things that are 

committed to the executive branch, the legislature does things that 

are committed to the legislative branch, and the judiciary fulfills a 

judicial function, and that those roles, when stuck to, create the 

right kind of dynamic tension that the Framers had in mind and 

which has made our written Constitution the oldest written Constitution in the world. 

There is a certain sense of deja vu in all of this. One of the reasons perhaps that I was invited is I probably superintended the 

most dismissals of United States Attorneys that anybody ever did, 

and I did it accidentally when force of circumstances—and Senator 

Schumer and Senator Specter remember my unusual circumstance—when I ended up as the long-term Acting Attorney 

General, and that had never happened in American history, where 

51

a President was saddled for more than a few days with an Attorney 

General of the other party. 

There is something to be said for that, by the way, and in this 

case, it was easy to support President Clinton’s decision to dismiss 

U.S. Attorneys, many of them on the same day, many of them that 

had served full terms, and many of them that were involved in ongoing investigations, because it was a presidential prerogative. And 

I would just note with some irony that I was accused by some of 

my colleagues of being involved in the termination of the United 

States Attorney in Arkansas who was in the midst of—actually, she 

had recused herself, but the office was in the midst of the Whitewater investigation, and that was alleged to have been a coverup 

on behalf of President Clinton. 

Of course, pressure then turned that occupation over to a judicially selected officer and created a situation where a prosecutor responsible to the judicial branch caused a great deal of discomfort, 

both to the President and to what is now the Democratic majority. 

And I urge everyone to remember that in looking at the role of the 

judiciary in a restored context to the one that Senator Schumer I 

think accurately described. The greatest value of the judiciary is it 

tells the others—not just the executive branch but the legislative 

branch to get on with their constitutional business and move on to 

permanent United States Attorneys with due speed. That is the 

value of the judicial part of it, not judges picking prosecutors, because that is an anomalous role for the judiciary. 

Let me also address one other point, and I am as great an admirer of Justice Jackson as anyone and have learned a lot about 

what the political branches should do and shouldn’t do from reading Justice Jackson. But I want to say a word on behalf of centralization and the proper role of politics. I have seen much of this 

before. I have dealt with problems between Senators and Presidents for many years. Senator Specter and I and Senator Heinz resolved an issue in the Reagan administration where there was a 

dispute over who should be the United States Attorney for the 

Eastern District of Pennsylvania. These disputes are old and oftentimes difficult. 

But it should be remembered that there are many valid reasons 

why the Main Justice component of the Justice Department ought 

to be able to exert its will over United States Attorney’s Offices in 

a prudent way and why, perhaps, it has not happened enough. I 

cite several instances of where I myself felt compelled to act and 

think that I did justice. I am of an age where some of the things 

I remember best perhaps did not happen, and I am informed that 

at least one of my examples may be flawed. Although what I stated 

is true, I attributed something to the then-U.S. Attorney for the 

Southern District of New York that perhaps I shouldn’t have. I 

apologize to him, and will personally, if I have contradicted his 

memory. But several cases immediately came to mind where I 

know that United States Attorneys were not adequately attending 

to national priorities. One was in the savings and loan crisis. It 

was very clear that a centrally directed civil system was vastly outperforming the dispersed, decentralized way that the criminal cases 

in the savings and loan area were being handled, and there were 

many U.S. Attorneys that did not do a good job. And it was not 

52

until Main Justice imposed task forces on them that that situation 

improved. 

And then I pointed out, last, a situation that I had where, if I 

had listened to the United States Attorney and, indeed, to the chief 

judge of the district in which the case was being tried, I would 

have been complicit in what I thought was an act of racial discrimination in jury selection, albeit involving a minority public official 

of the opposite party to me. I felt it important to impose my will 

on the United States Attorney. I think that justice was done. It did 

not matter to me that it was criticized. It was fairly illuminated 

in the public record, and that is all that really mattered. But it was 

certainly something that was warranted no matter how many people I displeased and no matter what an ill effect I might have had 

on the morale in the given office. 

I don’t know that morale generally in the United States Attorney’s Offices is being challenged. I haven’t seen it, and I do work 

that involves a lot of U.S. Attorneys. I subscribe to Mary Jo White’s 

analysis of what a United States Attorney’s Office ought to be. I 

hope that my career in retrospect will be reviewed and held as consistent with that tradition. I know that I got a great deal of support from Main Justice when I was a prosecutor of cases that were 

not generally popular, including the prosecution of a United States 

Senator, including being involved in one of the more controversial 

Watergate cases. And it was people like Henry Petersen, the legendary figure who was then the head of the Criminal Division, who 

provided a lot of support for what a rookie line Assistant U.S. Attorney thought needed to be done. And that tradition still is 

present. 

Somebody I got to know in my early days, the first time I was 

in the Justice Department, is Dave Margolis. You heard about him 

earlier, and I know he is a person who is familiar to you. It is not 

the practice of the Justice Department to throw career people to 

the winds of political judgments and political testimony, but he and 

so many other people are the folks who make this system go. They 

are there, whoever are United States Attorneys. Every office has 

them, and Ms. White and I have been honored, as has Ms. 

Levenson, to serve with people like that. 

So I happily conclude my remarks noting that what I came here 

to do was achieved when Senator Feinstein took her seat and announced what I think is a beneficial compromise. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Gerson appears as a submission 

for the record.] 

Senator SCHUMER. Thank you, Mr. Gerson. And we did say we 

would try to wrap up by 12:30, so I will keep my questions brief, 

and we may submit some others in writing. 

First, to Mary Jo White, what should be the standard for firing 

a presidentially appointed U.S. Attorney? What have you understood the historical standard to be? And is it ever wise or appropriate to fire a Senate-confirmed U.S. Attorney simply to give another person a chance? 

Ms. WHITE. Senator, in answer to that, clearly the President has 

the power to remove any U.S. Attorney for any reason or no reason. 

But as a matter of policy and as a matter of precedent as well, that 

53

in my experience during an administration has not been done, and 

I do not believe should be done, absent evidence of misconduct or 

other significant cause. And I think we have to be careful about the 

slippery slope of performance-related, because I don’t think a U.S. 

Attorney is like any other employee in the sense that it is a presidential appointee. It should be for serious significant cause. It does 

cause disruption. It does cause a tremendous appearance problem. 

It can disrupt cases. 

So I think the historical pattern has been, absent misconduct or 

significant cause, that you do not unseat a sitting U.S. Attorney. 

Senator SCHUMER. What you say makes a great deal of sense. 

Even assuming that some people were unhappy with the priorities, 

say, of Ms. Lam, the problems that this has created, I will bet the 

Justice Department wishes they had not done what they did. And 

we do not know the record. Maybe there is some smoking gun, but 

it is difficult to believe that given the external reports. 

Professor Levenson, I just want to ask you, since I read your testimony last night and heard it again here with care, did you find 

the statement—I will not call it an ‘‘admission’’—of Deputy Attorney General McNulty that they removed the Arkansas U.S. Attorney—well, I was going to say ‘‘troubling,’’ ‘‘shocking,’’ ‘‘unprecedented.’’ Would you disagree with any of those words? 

Ms. LEVENSON. No, I wouldn’t. I mean, in some ways it was refreshing to hear him say outwardly that he fired him—

Senator SCHUMER. You bet. 

Ms. LEVENSON.—not because he had done anything wrong, but 

because they wanted to give somebody else a political chance. That 

is precisely the problem. The job of U.S. Attorney should not be a 

political prize. There is too much at stake for the district and for 

the people who work in that office. 

Senator SCHUMER. Right. And, finally, to Mr. Gerson, in your 

time at the Justice Department, which is extensive, did you ever 

see a U.S. Attorney asked to resign for no reason other than to give 

someone else a shot? 

Mr. GERSON. Yes. 

Senator SCHUMER. Do you want to give us the example? 

Mr. GERSON. Well, I can’t give you a name, and I have tried to 

think back over this. It was certainly suggested to individuals during my time at the midterm that perhaps it was time to do something else. I can’t—

Senator SCHUMER. You mean the 2-year or the 4-year? 

Mr. GERSON. The 4-year. But I note that all—it would seem—I 

don’t want to be an apologist for anybody here, and I agree with 

you that the situation in San Diego is worth examining. I know the 

person who was deposed. I thought her to be a very fine lawyer, 

but I don’t know any of the circumstances. I dealt with her in 

health care cases, where she was quite vigorous, not in immigration cases that I have nothing to do with. But all of the individuals 

involved seemed to me to have served 4 years and were in a subsequent term, and I think that is worth knowing. They had been allowed to serve that time. 

I guess I am taking a contrarian view, which is I don’t want to 

adopt some categorical vision that there is anything inherently 

wrong with looking at an organization while it is healthy and makVerDate 0ct 09 2002 14:41 Jun 19, 2007 Jkt 035798 PO 00000 Frm 00057 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\35798.TXT SJUD1 PsN: CMORC
54

ing a change. I don’t carry any presumption that if someone is 

doing a good job, they are automatically entitled to continue. On 

the other hand, I am a conservative in most every way, and I believe in least action, and I generally try to do something for a reason. And I don’t conceive that I would have made a change without 

a reason to do so. 

Senator SCHUMER. A final question to you, sir. Given the fact 

that the replacement in the seven we talked about was probably 

contemplated before the day they were actually dismissed, isn’t 120 

days enough? 

Mr. GERSON. It should be. It should be, but it should be—let me 

make it clear. Senator Specter and I have argued with each other 

over almost three decades now on separation questions. I knew him 

when he was the DA, so I go back a ways. We were both very 

young. 

I think that it should be a notice both to the executive branch 

and to the legislature. I don’t think that we benefit from having interim anythings for a long period of time and that one ought to 

move expeditiously to having permanent people who, whether or 

not it is constitutionally required as a matter of constitutional custom, have their nominations submitted to the Senate and the Senate give advice and consent. 

Senator SCHUMER. Thank you. 

Senator Specter? 

Senator SPECTER. Thank you—I think—Mr. Chairman. I have 

not been in a situation like this—the Chairman wants to end this 

hearing at 12:30. It is now 12:29 and a half. 

Senator SCHUMER. You can speak as long as you wish. 

Senator SPECTER. I have not been in a situation like this since 

I was invited in 1993 to be the principal speaker at the commissioning of the ‘‘Gettysburg’’ in Maine. And when I looked at the 

speakers’ list, I was ninth. There was an Admiral from Washington. There was an Under Secretary of State. There was the Governor. There was Senator George Mitchell. There was Senator Bill 

Cohen. And I was called upon to speak at 4:32, and I was told as 

I walked to the podium that the commissioning had to be at 4:36 

because that is when the tide was right. So this brings back fond 

recollections to be called upon after all the time has expired. 

Senator SCHUMER. Well, I just want to remind my colleague, a 

rising tide lifts all boats. 

[Laughter.] 

Senator SPECTER. I only wish there were a rising tide in Washington. 

But we have the power in the Senate to change the clock. I was 

on the Senate floor one day when we had to finish activity by midnight, and we stopped the clock at 10 minutes to 12. 

Senator SCHUMER. I have heard about that. 

Senator SPECTER. Until we finished our work. But on to the serious questions at hand for no more than 3 minutes. 

Mr. Gerson, it has been a very important subject today as to 

what was a person’s best job. Now, you have testified that your 

wife thought being her husband was your best job. But it seems to 

me that begs the question. Did you think that was your best job? 

Mr. GERSON. I darn well better. 

55

Senator SPECTER. Well, that clears the air on that. 

In Morrison v. Olson, the appointment of a special prosecutor 

was up, and the special prosecutor statute provided that the appointing judge could not preside over any case in which the special 

prosecutor was involved. Ms. White, do you think we might bring 

that rule to bear so that if we have the chief judge make the appointment after 120 days, the prosecutor ought not to be able to appear before that judge? 

Ms. WHITE. I certainly think that is wise, particularly from an 

appearance point of view, whether dictated as a matter of constitutional law. And, again, I did not go into the subject of the best 

mechanism for appointing Interim U.S. Attorneys because I think 

the solution that seems to be on the table, not perfect, at least in 

my view, is probably the best one, achieving the best balance, not 

without its issues, though. 

Ms. LEVENSON. Professor Levenson, don’t you think it would be 

a good idea when there is a change of administration to at least 

make some sort of an inquiry as to whether the firing of all—there 

were only 92 U.S. Attorneys fired by Attorney General Gerson, as 

I understand it. I understand they kept Chertoff in Jersey at the 

request of Senator Bradley—not that that wasn’t political. But 

don’t you think there ought to be some inquiry as to what is happening and whether there is some politically sensitive matter so 

that you just don’t have a carte blanche rule? And—

Ms. LEVENSON. I do—

Senator SPECTER. Well, wait a minute. I haven’t finished my 

question. And don’t you think that Attorney General Gerson acted 

inappropriately in firing all those people when Clinton took office? 

After all, Ruckelshaus resigned and Richardson resigned; they 

wouldn’t fire Archibald Cox. Do you think that Gerson was the 

Bork of his era? 

[Laughter.] 

Ms. LEVENSON. I think the record speaks for itself, Senator. 

Senator SPECTER. He has already had his turn. I want an answer, Professor Levenson. 

Just kidding, just kidding. 

How about it, Mr. Gerson, former Attorney General Gerson? 

Mr. GERSON. Well, I don’t criticize Mr. Bork either. I mean, the 

buck had to stop at some point in order to have a Justice Department. But there is a difference. I also think that the process 

worked well even though it had a negative—

Senator SPECTER. It had to stop at some point to have justice, 

you say? 

Mr. GERSON. To have a Justice Department. Somebody has got 

to run the place. I don’t think anybody—

Senator SPECTER. What was wrong with Cox? 

Mr. GERSON. Well, I don’t think anything was wrong with Cox, 

and I think the upshot—I think the system worked. I mean, ultimately, the wrongdoing of that administration was exposed and the 

President resigned in the wake of a continuation of the special 

prosecutor’s function. You can’t escape it. And I think that is the 

point that good oversight makes and why, when all the political 

branches—both political branches do their job, justice will be 

served. 

56

Senator SPECTER. Well, I think this question has been very thoroughly aired. Very thoroughly aired. I can’t recall a 3-hour-and–36-

minute hearing under similar circumstances, and I await the day 

when Chairman Schumer is Chairman of the full Committee to see 

us progress in our work. 

Thank you all very much. 

Senator SCHUMER. Thank you, and I want to thank Senator 

Specter and all three witnesses for their excellent testimony. I 

think it has been an excellent hearing, and I have a closing statement that I will submit for the record. 

Thank you. 

[Whereupon, at 12:36 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.]

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