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33–809 PDF 2007

RESTORING CHECKS AND BALANCES IN THE CONFIRMATION PROCESS OF UNITED STATES ATTORNEYS

HEARING

BEFORE THE

SUBCOMMITTEE ON 

COMMERCIAL AND ADMINISTRATIVE LAW

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

ON

H.R. 580

MARCH 6, 2007

Serial No. 110–22

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://judiciary.house.gov 

(II)

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

[Vacant] 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio

PERRY APELBAUM, Staff Director and Chief Counsel 

JOSEPH GIBSON, Minority Chief Counsel 

SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW

LINDA T. SA ́ NCHEZ, California, Chairwoman 

JOHN CONYERS, JR., Michigan 

HANK JOHNSON, Georgia 

ZOE LOFGREN, California 

WILLIAM D. DELAHUNT, Massachusetts 

MELVIN L. WATT, North Carolina 

STEVE COHEN, Tennessee 

CHRIS CANNON, Utah 

JIM JORDAN, Ohio 

RIC KELLER, Florida 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona

MICHONE JOHNSON, Chief Counsel 

DANIEL FLORES, Minority Counsel 

(III)

C O N T E N T S 

MARCH 6, 2007

TEXT OF BILL 

Page 

H.R. 580, To amend chapter 35 of title 28, United States Code, to provide 

for a 120-day limit to the term of a United States attorney appointed 

on an interim basis by the Attorney General, and for other purposes ............ 3

OPENING STATEMENT 

The Honorable Linda T. Sa ́nchez, a Representative in Congress from the 

State of California, and Chairwoman, Subcommittee on Commercial and 

Administrative Law ............................................................................................. 1

The Honorable Chris Cannon, a Representative in Congress from the State 

of Utah, and Ranking Member, Subcommittee on Commercial and Administrative Law ........................................................................................................... 5

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Member, Subcommittee on Commercial and Administrative Law ........................................................................................................ 7

WITNESSES 

Mr. William E. Moschella, Principal Associate Deputy Attorney General, 

United States Department of Justice 

Oral Testimony ..................................................................................................... 10

Prepared Statement ............................................................................................. 12

Ms. Carol C. Lam, former United States Attorney for the Southern District 

of California 

Oral Testimony ..................................................................................................... 41

Joint Prepared Statement ................................................................................... 47

Mr. Daniel Bogden, former United States Attorney for the District of Nevada 

Oral Testimony ..................................................................................................... 43

Joint Prepared Statement ................................................................................... 47

Mr. David C. Iglesias, former United States Attorney for the District of 

New Mexico 

Oral Testimony ..................................................................................................... 44

Joint Prepared Statement ................................................................................... 47

Mr. Paul K. Charlton, former United States Attorney for the District of 

Arizona 

Oral Testimony ..................................................................................................... 44

Joint Prepared Statement ................................................................................... 47

Mr. H.E. (Bud) Cummins, former United States Attorney for the Eastern 

District of Arkansas 

Oral Testimony ..................................................................................................... 45

Joint Prepared Statement ................................................................................... 47

Mr. John McKay, former United States Attorney for the Western District 

of Washington 

Oral Testimony ..................................................................................................... 46

Joint Prepared Statement ................................................................................... 47

The Honorable Darrell E. Issa, a Representative in Congress from the State 

of California 

Oral Testimony ..................................................................................................... 84

Prepared Statement ............................................................................................. 105

Page

IV

The Honorable Asa Hutchinson, a former Representative in Congress from 

the State of Arkansas 

Oral Testimony ..................................................................................................... 108

Prepared Statement ............................................................................................. 110

Mr. John A. Smietanka, former United States Attorney for the Western 

District of Michigan 

Oral Testimony ..................................................................................................... 111

Prepared Statement ............................................................................................. 112

Mr. Atlee W. Wampler, III, President, The National Association of Former 

United States Attorneys 

Oral Testimony ..................................................................................................... 117

Prepared Statement ............................................................................................. 119

Mr. George J. Terwilliger, III, former Deputy Attorney General of the United 

States 

Oral Testimony ..................................................................................................... 124

Prepared Statement ............................................................................................. 126

Mr. T.J. Halstead, Legislative Attorney, American Law Division, Congressional Research Service 

Oral Testimony ..................................................................................................... 131

Prepared Statement ............................................................................................. 133

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Material submitted by the Honorable Zoe Lofgren, a Representative in Congress from the State of California, and Member, Subcommittee on Commercial and Administrative Law ............................................................................... 61

Material submitted by the Honorable Darrell E. Issa, a Representative in 

Congress from the State of California ................................................................ 86

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Steve Cohen, a Representative in Congress from the State of Tennessee, and Member, Subcommittee on Commercial and Administrative Law ............................................................................... 153

Letter from Richard A. Hertling, Acting Assistant Attorney General, providing personnel data on U.S. Attorneys ........................................................... 154

E-mail from H.E. Cummins to five other U.S. Attorneys regarding a phone 

call with Mike Elston, submitted by the Honorable Linda Sa ́nchez, a Representative in Congress from the State of California, and Chairwoman, 

Subcommittee on Commercial and Administrative Law .................................. 173

Copy of Medal of Merit presented to David C. Iglesias, submitted by Mr. 

David C. Iglesias, former United States Attorney for the District of New 

Mexico ................................................................................................................... 174

Letter from Michael A. Battle to David C. Iglesias, submitted by Mr. David 

C. Iglesias, former United States Attorney for the District of New Mexico .... 176

Letter submitted by Richard L. Delonis, President, National Association of 

Assistant United States Attorneys ..................................................................... 177

Answers to Post-Hearing Questions from John A. Smietanka, former United 

States Attorney for the Western District of Michigan ...................................... 179

Answers to Post-Hearing Questions from George J. Terwilliger, III, former 

Deputy Attorney General of the United States ................................................. 189

Answer to Post-Hearing Questions from Atlee W. Wampler, III, President, 

National Association of Former United States Attorneys ................................ 198

Answers to Post-Hearing Questions from Daniel Bogden, former United 

States Attorney for the District of Nevada ........................................................ 213

Letter from Christopher K. Barnes to Daniel Bogden transmitting the 2003 

E.A.R. report, submitted by Daniel Bogden, former United States Attorney 

for the District of Nevada .................................................................................... 228

Letter from Mary Beth Buchanan to Daniel Bogden, submitted by Daniel 

Bogden, former United States Attorney for the District of Nevada ................ 236

Letter from Michael A. Battle to Daniel Bogden, submitted by Daniel Bogden, 

former United States Attorney for the District of Nevada ............................... 238

Answers to Post-Hearing Questions from Carol C. Lam, former United States 

Attorney for the Southern District of California ............................................... 239

Page

V

Letter from Adele J. Fasano, Director, Field Operations, U.S. Customs and 

Border Protection, submitted by Carol C. Lam, former United States Attorney for the Southern District of California ........................................................ 252

Answers to Post-Hearing Questions from David C. Iglesias, former United 

States Attorney for the District of New Mexico ................................................ 255

Answers to Post-Hearing Questions from H.E. (Bud) Cummins, former United 

States Attorney for the Eastern District of Arkansas ....................................... 257

Answers to Post-Hearing Questions from Paul Charlton, former United States 

Attorney for the District of Arizona .................................................................... 268

E-mails from Justice Department officials regarding Paul Charlton, submitted 

by Paul Charlton, former United States Attorney for the District of Arizona 271

Letter from Michael C. Nicley, former Chief Patrol Agent, U.S. Border Patrol, 

submitted by Paul Charlton, former United States Attorney for the District 

of Arizona .............................................................................................................. 274

Answers to Post-Hearing Questions from John McKay, former United States 

Attorney for the Western District of Washington ............................................. 275

(1)

RESTORING CHECKS AND BALANCES IN THE 

CONFIRMATION PROCESS OF UNITED 

STATES ATTORNEYS 

TUESDAY, MARCH 6, 2007

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON COMMERCIAL

AND ADMINISTRATIVE LAW, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Subcommittee met, pursuant to notice, at 2:06 p.m., in Room 

2141, Rayburn House Office Building, the Honorable Linda 

Sa ́nchez (Chairwoman of the Subcommittee) presiding. 

Ms. SA ́ NCHEZ. This hearing of the Committee on the Judiciary, 

Subcommittee on Commercial and Administrative Law, will now 

come to order. 

I will now recognize myself for a short statement. 

In the wake of the Watergate scandal, a constitutional crisis that 

demonstrated the lengths to which our system of justice can be manipulated to achieve a political agenda, our Nation made the decision that our law enforcement system should be free from the influence of politics. We decided that ideological partisanship has no 

place in the dispatch of justice. 

Recently, we have seen troubling signs that this line is again 

being crossed. The question we are here to answer today is: Are important decisions about our justice system being made for political 

reasons? 

We recognize that U.S. attorneys serve at the pleasure of the 

President. However, in the past few months it appears that the 

Bush administration has exploited the change in interim appointment limits of U.S. attorneys by purging high-performing U.S. attorneys and replacing them with political cronies and inexperienced 

lawyers. 

This purge is one more example of the Administration’s concerted 

effort to promote partisan politics over sound management. Time 

and time again, we have seen this President undermine the legal 

foundations of our constitutional system of Government, particularly by seeking political advantage in areas that have traditionally 

transcended politics. 

Congress must determine if, once again, competency in upholding 

the law is being sacrificed for political ideology. For example, Arkansas U.S. Attorney Bud Cummins was replaced with Timothy 

Griffin at the insistence of former White House counsel Harriet 

Miers. Mr. Griffin is a long-time Republican operative who has a 

2

thin legal record but substantial connections to the RNC and Karl 

Rove. I hope to learn today why the Administration replaced an experienced and highly competent U.S. attorney with a partisan loyalist. 

We also need to determine if the Administration is making a systematic effort to curtail ongoing political corruption investigations. 

Former San Diego U.S. Attorney Carol Lam led the investigation 

of former California Representative Randy ‘‘Duke’’ Cunningham 

and his coconspirators, discovered pervasive and widespread political corruption and secured a guilty plea from Mr. Cunningham. 

Despite announcements of two related indictments just days before 

her departure, she was replaced with an interim appointee with almost no criminal law experience. 

We must investigate whether U.S. attorneys are being retaliated 

against for their role in investigations of corruption. Last week we 

learned that shortly before the November 2006 elections, two congressional Republican Members contacted former New Mexico Attorney David Iglesias regarding a corruption probe of a local Democratic elected official. I am deeply concerned that an ethical violation has occurred here. 

I am also concerned that John McKay, a former Seattle U.S. attorney, may have been fired to appease Washington-state Republicans who were angry over his failure to convene a Federal grand 

jury to investigation allegations of voter fraud in the 2004 governor’s race. And I have similar concerns that Paul Charlton, 

former U.S. attorney for Arizona, and Daniel Bogden, former U.S. 

attorney for Nevada, faced retribution for their roles in political 

corruption investigations. 

Specifically, it has been alleged that Paul Charlton was dismissed because he was investigating charges involving land deals 

and influence peddling by sitting Republican congressmen, and 

there is speculation that Daniel Bogden was ousted for investigating Governor Jim Gibbons’ receipt of unreported gifts and payments in exchange for his help as a Member of the House Intelligence and Armed Services Committees. 

We have also convened this hearing to consider H.R. 580, legislation authored by my friend and colleague from California, Representative Howard Berman. This legislation would restore the 

necessary legislative response to restore checks and balances in the 

U.S. attorney appointment process. The Berman bill would reverse 

a new provision in the USA PATRIOT Act, allowing the attorney 

general to indefinitely appoint Federal prosecutors through the end 

of the Bush administration without Senate confirmation. 

[The bill, H.R. 580, follows:]

3


I580A.eps
4


I580B.eps
5

Ms. SA ́ NCHEZ. To help shed some light on these issues, we have 

with us today a truly notable witness panel. We are pleased to 

have the six recently replaced former U.S. attorneys, William 

Moschella, principal associate deputy attorney general, Representative Darrell Issa, former Representative Asa Hutchinson and 

former Deputy Attorney General George Terwilliger. We also have 

two additional former U.S. attorneys, including the president of the 

National Association of Former United States Attorneys. 

Finally, we are joined by an attorney from the Congressional Research Service who will discuss the CRS report that concludes that 

these mass firings in the middle of an Administration are unprecedented in recent history. Accordingly, I very much look forward to 

hearing the testimony. 

I would now like to recognize my colleague, Mr. Cannon, the distinguished Ranking Member of my Subcommittee, for his opening 

remarks. 

Mr. CANNON. Thank you, Madam Chairman. 

This hearing is frankly two hearings rolled into one. The first 

hearing, the one the majority doesn’t want to have, is entitled H.R. 

580, ‘‘Restoring Checks and Balances in the Confirmation Process 

of U.S. Attorneys.’’ If the majority were serious about this hearing, 

we would be receiving testimony about whether it is wise to return 

to a policy that allows judges to make interim appointments of 

prosecutors that practice before them. 

We could ask whether such practices raise ethical, constitutional 

or prudential concerns. We could discuss past instances when 

judges either refused to exercise their authority to appoint interim 

U.S. attorneys or abused the authority by appointing someone that 

was not qualified to serve in that position. 

But the majority doesn’t want to have that hearing. Instead, they 

want a show trial of recently-dismissed U.S. attorneys claiming disingenuously that the dismissals have something to do with the first 

hearing. 

U.S. attorneys serve at the President’s pleasure, now and always. 

The President can dismiss a U.S. attorney for any reason or for no 

reason at all. How do we know this? President Clinton dismissed 

93 U.S. attorneys in his first months in office, a purge that makes 

the dismissal of 8 U.S. attorneys look like a rounding error. But 

were those dismissals inappropriate? No. Under article 2 of the 

Constitution, it is the President’s responsibility to see that the laws 

are faithfully executed. U.S. attorneys are at the heart of his leadership team, making sure the laws are enforced, consistent with his 

policies and priorities in each judicial district in the country. The 

President is entitled to have who he thinks will best do that job 

at all times. He deserves it and the Nation deserves it. 

Second, the President’s explanations for the dismissals at issue 

today, though not required, are reasonable. The Department of Justice has explained to this Committee the reasons for these dismissals. In every case, the President had a legitimate reason to believe 

that an infusion of fresh leadership would serve the country. 

Each of these U.S. attorneys had served the full 4-year term to 

which they are appointed. Some had served more. Some of them 

had, in one area or another, for one reason or another, parted 

paths with the President in implementing one or more of his enVerDate 0ct 09 2002 11:16 Aug 09, 2007 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6601 H:\WORK\COMM\030607\33809.000 HJUD1 PsN: DOUGA
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forcement priorities. Others had presented other issues that 

prompted the President to want to try someone new. And in at 

least one case, the President just wanted to provide another qualified individual the opportunity to serve as a U.S. attorney. 

These U.S. attorneys are entitled to their opinions, and those 

whose practices or positions differed from national policy may have 

had their reasons. But they were obliged to implement the President’s priorities fully and to carry out their duties as the President 

saw fit. They were not entitled to their jobs. It is the President’s 

responsibility to see that the laws are enforced. If he determines 

that he needs new leadership to fully achieve his priorities, he has 

a responsibility to obtain it. 

Again, U.S. attorneys serve at the President’s pleasure, not at 

their own. These U.S. attorneys do not debate this. Mr. Cummins 

has stated that the President can remove a U.S. attorney for any 

reason or no reason or even an idiotic reason. I hope that wasn’t 

in reference to the President, but we have had lots of Presidents 

who have released lots of U.S. attorneys. 

Mr. Iglesias has been quoted in the press as saying that even if 

he was ‘‘moved out strictly for political reasons, I am okay with 

that.’’ Speaking for the group as a whole, Mr. Iglesias has said that 

‘‘we are not disgruntled employees.’’ They recognize the President’s 

prerogatives, and so should we. 

Third, the record backs the President up. The Department of 

Justice has shown in briefings and other communications with the 

Congress that the President had legitimate reasons to opt for new 

leadership in these districts. Again, this is not to say that the sitting U.S. attorneys were all necessarily doing bad jobs, or any of 

them were doing bad jobs, but that the President has backed up 

his reasonable explanations with evidence for his belief that he 

could do better in achieving his priorities and that it was time for 

a change. Not a shred of hard evidence brought before me or this 

Subcommittee has done anything to disprove that. 

Loose accusations of political retaliation and favoritism have 

been recklessly bandied about without substantiation. Not a single 

public corruption prosecution or investigation has been slowed or 

halted because of these personnel decisions. On the contrary, ongoing prosecutions and investigations in these districts have moved 

forward regardless of the transition of leadership. It is simply a 

commitment to bring more new cases in the President’s priority enforcement areas that has prompted the department to seek a 

change. This is laudable, it is appropriate and it should be respected. 

What has been the response of the majority? To ignore the President’s prerogatives, to ignore his sound explanations to turn these 

former public servants into political footballs and to run after the 

phantom notion that the President must have engaged in retaliatory hardball politics. The conclusion is clear. The President was 

entitled to make these changes in his leadership team. Even if we 

were to disagree with his reasons, he was entitled to make them. 

And in any event, his reasons were entirely reasonable. Accusations that these dismissals were motivated by the politics of retribution are false and do a disservice to the public. 

7

Likewise, accusations that these dismissals were made to clear 

the way, to avoid Senate confirmation of U.S. attorneys are far 

from the mark. The only political maneuvering occurring here is 

that the majority, which is willfully disregarding the department’s 

reasonable explanations to stir up a groundless partisan controversy and attempt to reverse some legislation that benefits the 

American people. 

The Republican Members of this Subcommittee encourage the 

majority to avoid the temptation of political headlines and instead 

work to address the real problems the country needs to face. We 

stand ready, willing and able to work to achieve bipartisan results 

that will benefit the American people. It is time to pick up the 

work and stop loosing precious time on false issues and refusals to 

believe the truth. 

And I yield back, Madam Chairman. 

Ms. SA ́ NCHEZ. I thank the gentleman for his statement. 

I would now like to recognize Mr. Conyers, a distinguished Member of the Subcommittee and the Chairman of the Committee on 

the Judiciary. 

Mr. CONYERS. Thank you, Madam Chairman. 

I am happy to see all of us here today, including the very distinguished witnesses that are going to soon occupy the witness table. 

I want our friend, the Ranking Member of the Subcommittee, 

Chris Cannon, to understand that this is not immaterial or irrelevant activities. It has been in the headlines, on TV, in the newspapers. The country is flooded with this. It has even been in the 

Senate Judiciary Committee. 

Look, this is not——

Mr. CANNON. Would the gentleman yield? 

Mr. CONYERS. This is not unimportant activity. And, yes, I will 

yield. 

Mr. CANNON. The fact that the press needs something to make 

a big issue out of does not mean it should drive our deliberations 

and our processes because it is easy to report wild and vast allegations and yet as I think you will see in this hearing, as we saw certainly in the Senate hearing, the substance is modest but it will 

still make the headlines. 

Mr. CONYERS. I accept and receive the gentleman’s admonitions. 

Now I want him to rest more comfortably in his chair, because 

we are here to hear the measure that is before us. H.R. 580, introduced by the gentleman from California, Mr. Berman and myself, 

and we have afforded you three witnesses for that purpose. I presume that you chose the witnesses or at least had something to do 

with it. 

So don’t think that we are not here for the legislative business 

which we have published and I hope that these hearings can address several important issues. 

The first is, what is the impact of these unprecedented series of 

forced resignations have had on our criminal justice system. The 94 

United States attorneys’ offices are the heart and soul of our Federal law enforcement system and in many respects the crown jewel 

of the Justice Department. 

The lawyers who work in these offices are the very best and 

brightest of our lawyers. It is absolutely critical that the U.S. attorVerDate 0ct 09 2002 11:16 Aug 09, 2007 Jkt 000000 PO 00000 Frm 00013 Fmt 6633 Sfmt 6601 H:\WORK\COMM\030607\33809.000 HJUD1 PsN: DOUGA
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neys who supervise them, whether chosen by Democrats or Republicans, it doesn’t matter, be of unquestionable integrity and independence. 

I have to question what sort of impact these firings have not only 

on the officers involved but every law enforcement official in the 

Nation. How does this impact the continuity of our ongoing investigations? How does it impact the enforcement of our immigration 

laws, our gun laws, our drug laws, not to mention our public corruption laws? Can we really afford on-the-job training of law enforcement novices when the lives and safety of American citizens 

are so clearly at stake? 

What can we learn about the real reasons these prosecutors were 

fired? I am troubled when the justifications put forth for these 

firings change by the day in reaction to the latest revelation. What 

started out as performance-related firings quickly switched to failure to follow policy priorities. Yet as of today, nearly 3 months 

after these discharges, we have yet to learn of any documented evidence identifying any specific concerns that were raised with any 

of these prosecutors before they were discharged. That is no way 

to run an office, let alone a legal office responsible for life and 

death decisions. 

What do these mass firings and the way that they were handled 

say about our present Administration? Good and honest prosecutors appear to have had their reputations unjustly besmirched and 

they may have been threatened for telling the truth. They have 

been courageous to come before us and they have said that they 

were being fired for poor performance when the exact opposite 

seems to be true. 

Ladies and gentlemen, for the purposes of honoring the 5-minute 

rule, I will submit the rest of my statement. 

And I thank the Subcommittee Chairwoman. 

Ms. SA ́ NCHEZ. I thank the gentleman for his statement. 

And without objection, other Members’ opening statements will 

be included in the record. 

Without objection, the Chair will be authorized to declare a recess of the hearing. 

Before we call Mr. Moschella to the table to testify, I would ask 

the former U.S. attorneys we have subpoenaed to come to the table 

briefly. 

I want you to know that we are going to ask Mr. Moschella to 

tell us what he knows about the reasons for your terminations, including what may have been said in various conversations and 

what may have been written in various reports. Mr. Moschella may 

be hesitant to discuss some of this information based on privacy or 

confidentiality interests ascribed to each of you. 

On Wednesday, February 28, and Monday, March 5, I was 

briefed by the department concerning the alleged performance-related reasons for your termination. Today we are going to ask Mr. 

Moschella if he would repeat those reasons for us. However, for 

him to do so today, you would need to agree to waive any privacy 

or confidentiality interests to the statements made to me on February 28 and March 5 in that briefing. 

Are you willing to give such a limited waiver of your privacy and 

confidentiality interests? 

9

And I also want to emphasize that this is totally voluntary. If 

any of you have reservations, we will respect that. We would not, 

of course, ask Mr. Moschella to improperly disclose grand jury or 

other investigative information of a sensitive nature in open session. And any of you who wish will have an opportunity to respond 

to Mr. Moschella. 

Do we have your permission to have a limited waiver of those 

rights so that Mr. Moschella can repeat statements that were made 

in briefings to this Subcommittee Chair? 

Let the Chair indicate that all of the witnesses have assented by 

head nodding and verbal yeses. 

Thank you. We will have you up to the table to testify in just 

a little while. 

I am now pleased to introduce the witness on our first panel for 

today’s hearing. William Moschella is the principal associate deputy attorney general for the Department of Justice. Prior to that 

appointment, he served as assistant attorney general for DOJ’s office of legislative affairs. He was also chief legislative counsel and 

parliamentarian to the House Committee on the Judiciary. 

Thank you for your willingness to participate at today’s hearing. 

Mr. Moschella, given the gravity of the issues we are discussing 

today and your role in these hearings and so there is no misunderstanding, we would appreciate it if you would take an oath before 

you begin your testimony. Do you object to doing so? 

Please stand and raise your right hand. 

[Witness sworn.] 

Without objection, your written statement will be placed into the 

record and we would ask that you limit your oral remarks to 5 

minutes. You will note that we have a lighting system that starts 

with a green light. At 4 minutes, it turns yellow, and then red at 

5 minutes. 

After the witness has presented his testimony, Subcommittee 

Members will be permitted to ask one round of questions subject 

to the 5-minute limit. 

Thank you, Mr. Moschella. Will you now proceed with your testimony? 

Mr. CANNON. Madam Chairman, before Mr. Moschella proceeds, 

may I just clarify the scope of the commitment here? 

My understanding is that Mr. Moschella, under questioning, can 

answer questions about the office and activity within the office as 

it relates to performance of the U.S. attorneys, but not about cases 

if any were—did you discuss any cases with the Congresswoman at 

all? 

How careful is Mr. Moschella going to have to be in answering? 

Ms. SA ́ NCHEZ. He may not discuss any pending cases. 

Mr. CANNON. Did he discuss pending cases with you in that 

meeting? 

Ms. SA ́ NCHEZ. I don’t believe that he did. 

Mr. CANNON. So, what he is going to be talking about under your 

questioning, apparently, is going to be statements he made to you 

in a meeting about the qualifications, the activities and the performance of these U.S. attorneys? 

Ms. SA ́ NCHEZ. Correct. It will be statements that were made in 

the two briefings of Members of this Subcommittee as to the soVerDate 0ct 09 2002 11:16 Aug 09, 2007 Jkt 000000 PO 00000 Frm 00015 Fmt 6633 Sfmt 6601 H:\WORK\COMM\030607\33809.000 HJUD1 PsN: DOUGA
10

called performance-related excuses or reasons that they gave for requesting the resignation of the U.S. attorneys who will be testifying 

here. 

Mr. CANNON. Thank you. 

TESTIMONY OF WILLIAM E. MOSCHELLA, PRINCIPAL ASSOCIATE DEPUTY ATTORNEY GENERAL, UNITED STATES DEPARTMENT OF JUSTICE 

Mr. MOSCHELLA. Madam Chairman, just before I begin my opening testimony, I just want to make clear, I am not sure about the 

previous exercise that we just went through. The Privacy Act has 

a specific exception in it with regard to a presentation before the 

Congress. And so to the extent that that was meant to be a Privacy 

Act labor, it is unnecessary in this context. 

Ms. SA ́ NCHEZ. It doesn’t hurt to have a backup plan, Mr. 

Moschella. 

Mr. MOSCHELLA. Madam Chairman, Mr. Cannon, Members of 

the Subcommittee, I appreciate the opportunity to testify today. 

Let me begin by stating clearly that the Department of Justice 

appreciates the public service that was rendered by the seven 

United States attorneys who were asked to resign last December. 

Each is a talented lawyer who served as U.S. attorney for more 

than 4 years and we have no doubt they will achieve success in 

their future endeavors, just like the 40 or so U.S. attorneys who 

have resigned for various reasons over the last 6 years. 

Let me also stress that one of the attorney general’s most important responsibilities is to manage the Department of Justice. Part 

of managing the department is ensuring that the Administration’s 

priorities and policies are carried out consistently and uniformly. 

Individuals who have the high privilege of serving as presidential 

appointees have an obligation to carry out the Administration’s priorities and policies. 

United States attorneys in the field as well as assistant attorneys general here in Washington are duty-bound not to make prosecutorial decisions but also to implement and further the Administration and department’s priority and policy decisions. In carrying 

out these responsibilities, they serve at the pleasure of the President and report to the attorney general. If a judgment is made that 

they are not executing their responsibilities in a manner that furthers the management and policy goals of departmental leadership, 

then it is appropriate that they be asked to resign so that they can 

be replaced by other individuals who will. 

To be clear, it was for reasons related to policy, priorities and 

management, what has been referred to broadly as performance-related reasons, that these United States attorneys were asked to resign. 

I want to emphasize that the department, out of respect for the 

United States attorneys at issue, would have preferred not to talk 

about those reasons, but disclosures in the press and requests for 

information from Congress altered those best laid plans. In hindsight, perhaps this situation could have been handled better. These 

U.S. attorneys could have been informed at the time they were 

asked to resign about the reasons for the decisions. 

11

Unfortunately, our failure to provide reasons to these individual 

United States attorneys has only served to fuel wild and inaccurate 

speculation about our motives. And that is unfortunate, because 

faith and competence in our justice system is more important than 

any one individual. That said, the department stands by the decisions. It is clear that after closed-door briefings with House and 

Senate Members and staff, some agree with the reasons that form 

the basis for our decisions and some disagree. Such is the nature 

of subjective judgments. 

Just because you might disagree with a decision does not mean 

it was made for improper political reasons. There were appropriate 

reasons for each decision. 

One troubling allegation is that certain of these United States attorneys were asked to resign because of actions they took or didn’t 

take relating to public corruption cases. These charges are dangerous, baseless and irresponsible. This Administration has never 

removed a United States attorney to retaliate against them or 

interfere with or inappropriately influence a public corruption case. 

Not once. 

The attorney general and the director of the FBI have made public corruption a high priority. Integrity in government and trust in 

our public officials and institutions is paramount. Without question, the department’s record is one of great accomplishment that 

is unmatched in recent memory. The department has not pulled 

any punches or shown any political favoritism. Public corruption 

investigations are neither rushed nor delayed for improper purposes. Some, particularly in the other body, claim that the department’s reasons for asking these United States attorneys to resign 

was to make way for pre-selected Republican lawyers to be appointed and circumvent Senate confirmation. The facts, however, 

prove otherwise. 

After the seven United States attorneys were asked to resign last 

December, the Administration immediately began consulting with 

home State Senators and other home State political leaders about 

possible candidates for nomination. Indeed, the facts are that since 

March 9, 2006, the date the attorney general’s new appointment 

authority went into effect, the Administration has nominated 16 individuals to serve as United States attorney and 12 have been confirmed. 

Furthermore, 18 vacancies have arisen since March 9, 2006. Of 

those 18 vacancies, the Administration: one, has nominated candidates for six of them, and of those six, the Senate has confirmed 

three; two, has interviewed candidates for eight of them; three, is 

working to identify candidates for the remaining four. 

Ms. SA ́ NCHEZ. Mr. Moschella, your time has expired. If you could 

just briefly conclude. 

Mr. MOSCHELLA. Let me repeat what has been said many times 

before and what the record reflects. The Administration is committed to having a Senate-confirmed United States attorney in 

every single Federal district. 

In conclusion, let me make three points. First, although the department stands by the decision to ask these United States attorneys to resign, it would have been much better to have addressed 

the relevant issues up front with each of them. Second, the departVerDate 0ct 09 2002 11:16 Aug 09, 2007 Jkt 000000 PO 00000 Frm 00017 Fmt 6633 Sfmt 6601 H:\WORK\COMM\030607\33809.000 HJUD1 PsN: DOUGA
12

ment has not asked anyone to resign to influence any public corruption case and would never do so. Third, the Administration at 

no time intended to circumvent the confirmation process. 

I would be happy to take your questions. 

[The prepared statement of Mr. Moschella follows:]

PREPARED STATEMENT OF WILL MOSCHELLA


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Ms. SA ́ NCHEZ. Thank you for your testimony. 

I would now like to recognize myself for the first round of questioning. 

Mr. Moschella, we have had now two briefings regarding the purported reasons for the requested resignations of the six U.S. attorneys that are behind you. 

Could you please summarize for the Subcommittee the particular 

reasons with respect to each individual, Ms. Lam, Mr. McKay, Mr. 

Cummins, Mr. Bogden, Mr. Iglesias and Mr. Charlton, why they 

were asked to resign? 

Mr. MOSCHELLA. I will, and I will try to do so quickly. 

Ms. SA ́ NCHEZ. You have about 4 minutes to do so. 

Mr. MOSCHELLA. I notice that two individuals are not here, and 

those individuals would have been in the management category——

Ms. SA ́ NCHEZ. We are interested solely in the individuals sitting 

behind you. 

Mr. MOSCHELLA [continuing]. Just so the record is clear. 

With regard to Carol Lam, a distinguished prosecutor and someone who did fulfill more than her 4-year term, there were two basic 

issues. It has been a priority of the Department of Justice and this 

Administration, both in violent crime and in immigration. In violent crime, Project Safe Neighborhoods, which is our landmark 

anti-gun program, has been talked about by the President, by the 

attorney general, in conferences, at U.S. attorneys meetings. And 

quite frankly, her gun prosecution numbers are at the bottom of 

the list. She only beat out Guam and the Virgin Islands in that 

area. 

On immigration, it has been reported in the press after our briefings with the Senate Judiciary Committee that her numbers for a 

border district just didn’t stack up. The President of the United 

States, this Administration, has made immigration reform a priority and those on the border, in these border districts, have a responsibility there and to the rest of the country to vigorously enforce those laws. 

Ms. SA ́ NCHEZ. Mr. McKay? 

Mr. MOSCHELLA. With regard to Mr. McKay, the department 

really had policy differences and were concerned with the manner 

in which he went about advocating particular policies and we will 

get into the details of information sharing, but he spent quite a 

considerable amount of time advocating for a particular system, basically advocating that the Justice Department give our good 

housekeeping seal of approval for this particular system, but we decided, because various jurisdictions around the country have different systems, that we would plug our pipe—one DOJ pipe in 

which we share with State and local governments—to those systems. 

Ms. SA ́ NCHEZ. Mr. Cummins? 

Mr. MOSCHELLA. I think Mr. Cummins’ situation has been welldocumented. His was not for performance-based reasons. I will just 

refer to, in the interest of time, the deputy attorney general’s testimony a couple of weeks ago in the Senate. 

Ms. SA ́ NCHEZ. We would like to get the information on the record 

here, if you don’t mind. 

20

Mr. MOSCHELLA. It may take a little bit longer than the minute 

and 35 seconds that I have, but Mr. Cummins was—the Administration asked Mr. Cummins to move on only after we knew that—

you know, he had indicated he was not going to serve out the remainder of his term—a qualified individual who had served both 

as a prosecutor at main Justice and in his district, was coming 

back from Iraq after serving his country for a year in Mosul, not 

in the green zone, and prosecuting over 40 JAG-related cases there, 

was interested in a U.S. attorney position. 

Mr. Griffin was considered for the other district in Arkansas earlier in his tenure, was interviewed. He had gone all the way 

through the process and likely would have been the candidate. He 

would have but for the fact that he took another position, he probably would have been the U.S. attorney in that other district. So 

it was clear that he was interested in a position and given the 

knowledge that Mr. Cummins was not likely to serve out the remainder of his term, because there had been at least one press report that I am aware of where that was indicated. 

Ms. SA ́ NCHEZ. Okay. Mr. Bogden? I am sorry to hurry you along, 

but we have limited time here. If you could please get through the 

final three as briefly as you can. Mr. Bogden? 

Mr. MOSCHELLA. Sure. 

The general sense in the department about Mr. Bogden is that 

given the importance of the district in Las Vegas, there was no particular deficiency. There was an interest in seeing new energy and 

renewed vigor in that office, really taking it to the next level. 

It is important to note that the reason why this process was undertaken was really to ensure that in the last 2 years of this Administration we were fielding the best team possible, and that is 

what the attorney general was doing when we—as we reviewed 

these. 

Ms. SA ́ NCHEZ. Okay. Mr. Iglesias? 

Mr. CANNON. Pardon me, Madam Chairman. We are going to 

have a large number of witnesses and many people here who want 

to participate. I don’t mean to be a skunk to the party, but if we 

do the 5-minute rule, we are probably going to get through more 

quickly. 

Ms. SA ́ NCHEZ. Okay. 

Mr. WATT. Madam Chair, I would be delighted to yield the 

gentlelady my time for questioning and pass, because I think we 

need this information in the record. 

Ms. SA ́ NCHEZ. I appreciate that, Mr. Watt. I understand that. 

Mr. WATT. I yield the gentlelady my 5 minutes. 

Ms. SA ́ NCHEZ. Okay. Thank you, Mr. Watt. 

Mr. Moschella, please, as briefly as you can, Mr. Iglesias? 

Mr. MOSCHELLA. Sure. And it is difficult to do it in such a short 

time frame. As you know, our briefing took about 40 or 50 minutes. 

Ms. SA ́ NCHEZ. Right. I think you can distill that, though, to the 

heart of the matter fairly quickly. 

Mr. MOSCHELLA. I will. 

Ms. SA ́ NCHEZ. It is usually a one or two sentence reason. 

Mr. MOSCHELLA. There was a general sense with regard to this 

district, again, Mr. Iglesias had served, as they all did, the entire 

4-year term, that the district was in need of greater leadership. We 

21

have had a discussion about the EARS Report, and the EARS Report does pick up some management issues and Mr. Iglesias had 

delegated to his first assistant the overall running of the office. 

And, quite frankly, U.S. attorneys are hired to run the office, not 

their first assistants. 

Ms. SA ́ NCHEZ. Okay. And Mr. Charlton? 

Mr. MOSCHELLA. I would put Mr. Charlton more in the policy 

category. Mr. Charlton had undertaken in his district a policy with 

regard to the taping of FBI interviews and set a policy in place 

there that had national ramifications. It did not go through the 

whole policy process. It has implications for prosecutions, for law 

enforcement agencies, the bureau’s sister agencies at ATF, DEA, 

Marshals, ICE, CBP and the like, and that was just completely 

contrary to the way policy development occurs in the Department 

of Justice. 

Furthermore, on the death penalty, we have a process in the Department of Justice. It is the one area that is non-delegable by the 

attorney general. And Mr. Charlton, in a particular case, was told 

and was authorized to seek in a particular case. He chose instead 

to continue to litigate after that long and exhaustive process, going 

from his career people to him to the criminal division, the Capital 

Case Unit, which comes to the recommendation of the deputy attorney general’s office, and then the attorney general. 

Ms. SA ́ NCHEZ. Thank you, Mr. Moschella. 

I am going to reserve the balance of Mr. Watt’s time and turn 

to my Ranking Member, Mr. Cannon, for questions. 

Mr. CANNON. I don’t think that you can reserve time. I think 

that Mr. Watt has to use it. You can return it to Mr. Watt and he 

can ask questions or yield back. 

Mr. WATT. I would be happy to take it back and at an appropriate time re-yield it to you if that——

Mr. CANNON. I don’t think that you can hold time. We may go 

a second round, which is perfectly appropriate. 

I don’t mean to be a stickler here, but we have lots of folks that 

have lots of questions and lots of witnesses. 

Mr. WATT. When my turn comes, I can take it. I don’t know that 

there is anything in the rules that prohibits me from taking the 

rest of my time. 

Mr. CANNON. I think that the normal procedure would have been 

for me to take time. If you wanted to give——

Mr. WATT. If you had objected to my yielding it to the Chair at 

that moment, she might have had to take it in my time slot, but 

you didn’t object. 

Mr. CANNON. No, that is correct. I did not object because of our 

personal relationship, but once your time is granted, I think you 

lose that time for the round. 

Mr. WATT. I don’t think so. 

Mr. CANNON. So if you want to take time—I think that is the 

rule. But this is—I don’t mean to be a stickler here. If you want 

to take the time, fine. But I would like to——

Mr. WATT. Well, why are we talking about this if you don’t mean 

to be a stickler? 

Ms. SA ́ NCHEZ. We will take that issue—excuse me. We will take 

that issue under advisement. 

22

In the meantime, Mr. Cannon, you will be recognized for your 5 

minutes to ask questions. 

Mr. CANNON. Thank you very much. 

Thank you, Mr. Moschella, for being here. 

I am one of your great admirers. I appreciated working with you 

here on the Committee where you served as parliamentarian and 

legal counsel to the Committee for several years. In fact, how long 

did you serve on this Committee? 

Mr. MOSCHELLA. Since 1998 to 2003. 

Mr. CANNON. Thank you. 

Great service. We appreciate it on the Committee. And we appreciate your being back here. And I want to thank you for your very 

thoughtful statement in a difficult environment and give you a 

chance, first of all, to add anything that you would like in particular. 

I know that you were a little bit rushed, but you did mention 

Lam’s prosecution or low-end number of prosecutions on the firearms issues. Can you elaborate on that a little bit, please? 

Mr. MOSCHELLA. Well, when the President ran for election, one 

of the cornerstone priorities that he had was preventing violent 

crime. We do so through our Project Safe Neighborhoods Program. 

Congress has appropriated millions and millions of dollars for this 

program over the last several years. 

Our firearms prosecutions have gone up I believe over 70 percent 

over the time of this Administration and we expect the U.S. attorneys to follow in those priorities. The U.S. attorneys hear about 

those priorities at conferences, PSN conferences, at U.S. attorneys 

conferences, through memos and other forums. Indeed, at one of 

the PSN conferences, President Bush gave a videotaped presentation about the importance of prosecuting violent criminals. 

Mr. CANNON. And how did Ms. Lam’s district rank in terms of 

number of prosecutions during the relevant period? 

Mr. MOSCHELLA. I don’t have the numbers committed to memory, 

but she was 91st out of 93 districts. 

Mr. CANNON. And the other districts were—do you recall what 92 

and 93 were? 

Mr. MOSCHELLA. Guam and the Virgin Islands. 

Mr. CANNON. Places that don’t have the kind of significant crime 

that we have in Southern California. 

Mr. MOSCHELLA. And certainly don’t have the significant resources of the Southern District of California. 

Let me say, I think every U.S. attorney will say, ‘‘I have resource 

problems.’’ And it is true. Congress in the past several years has 

not funded the President’s request and we actually got a pretty 

good appropriation out of the joint resolution. So there are strains, 

and we have set specific priorities. 

That said, these are high Administration priorities and we expect 

that those priorities be fulfilled. 

Mr. CANNON. What happened to prosecutions of people smuggling people or drugs across the border in Ms. Lam’s district? 

Mr. MOSCHELLA. Well, at about the 2004, 2005 time frame, just 

at the time, coincidentally, that the Administration is really gearing up to make its case on the Hill for comprehensive immigration 

reform, the numbers in that district dropped precipitously, and it 

23

was because of a policy instituted to focus on, and I know Ms. Lam 

will say, on higher priority prosecutions. 

The truth is, on the border we need to prosecute these cases before they become interior problems. And I understand prioritizing, 

but we have made this a priority for the border, and to have both 

components of comprehensive immigration reform work, the guest 

worker program and enforcement, you need them both, and the 

Congress has put a lot of resources toward this effort. We have put 

more resources on the border. We can always use more, but the 

other border districts did substantially more. 

Mr. CANNON. Since time is limited, let me just clarify. You are 

speaking in terms of Ms. Lam’s priorities and what she thought 

was higher priority, and then you went on to talk about what we 

needed. When you talk about what we needed, you are talking 

about what the President has directed, what the attorney general 

has directed and what the Department of Justice was telling Ms. 

Lam to do. Is that not correct? 

Mr. MOSCHELLA. That is right. And quite frankly, Members of 

Congress, some from the House, some from—at least one in the 

Senate, Senator Feinstein, wrote specifically about this issue, the 

concern that the San Diego area, which is an extremely important 

sector and port of entry, that it not become kind of a magnet for 

these coyotes and other smugglers. 

Mr. CANNON. And did it become a magnet? 

I see my time has expired. 

Mr. CANNON. And I will just let the witness answer the question. 

Ms. SA ́ NCHEZ. Will you please restate the question, Mr. Canno? 

Mr. MOSCHELLA. Did it become a magnet? 

Mr. CANNON. In other words, was there change in the patterns 

at the border? 

Mr. MOSCHELLA. Well, I know that the border patrol and others 

in that area were very concerned about the numbers of apprehensions made and the number of prosecutions that were declined. So 

I don’t have a specific figure for you. But when you lower the prosecutions, the deterrence level certainly will go down. 

Ms. SA ́ NCHEZ. The time of the gentleman has expired. 

The Chair now recognizes the gentleman from Michigan, Mr. 

Conyers, for 5 minutes. 

Mr. CONYERS. Thank you. 

This is a little bit astounding. Here we have the greatest corruption prosecution in the end of the 20th century and 21st century 

by Ms. Lam, and you say she rates so poorly that we are going to 

have to improve her office by replacing her. 

This past Sunday, Mr. Moschella, on interviews with the Justice 

Department officials, the New York Times reported that discussions began in October about removing U.S. attorneys and that 

after a list was identified, it was presented to Attorney General 

Gonzales and Deputy Attorney General McNulty. Is that correct? 

Mr. MOSCHELLA. That is generally correct. There was a process, 

starting in October——

Mr. CONYERS. I don’t need the details, but I think that your answer is basically yes. 

Who inside the department was involved in the discussions to 

identify the U.S. attorneys to be removed? 

24

Mr. MOSCHELLA. Well, the discussion occurred in really a collaborative way between the attorney general’s office——

Mr. CONYERS. Yourself? 

Mr. MOSCHELLA. No. I joined the deputy’s office in October, on 

October 3, just about when this process began. 

Mr. CONYERS. Kyle Sampson, chief of staff to the attorney general? 

Mr. MOSCHELLA. The chief of staff was involved. 

Mr. CONYERS. Yes. Mike Elston, chief of staff to Mr. McNulty? 

Mr. MOSCHELLA. That is correct. 

Mr. CONYERS. Monica Goodling, in the office of the attorney general? 

Mr. MOSCHELLA. Yes, sir. 

Mr. CONYERS. And who else? 

Mr. MOSCHELLA. I would say that was probably the core group, 

and then at certain stages other folks——

Mr. CONYERS. What about Michael Battle? 

Mr. MOSCHELLA. As I was saying, some may have been consulted 

to obtain either information or——

Mr. CONYERS. Yes. What about Michael Battle? 

Mr. MOSCHELLA. Yes, he was consulted. 

Mr. CONYERS. Okay. And he has since resigned as head of the 

executive office of the U.S. attorneys? 

Mr. MOSCHELLA. I think he has another couple weeks on the job. 

But to the extent that the question somehow implies that he is 

being forced out, nothing could be further from the truth. 

Mr. CONYERS. Well, I haven’t implied anything. 

Mr. MOSCHELLA. Not you. But it is implied. We have received 

many——

Mr. CONYERS. Look, we are not reviewing the media right now. 

I just am trying within this limited time to get some responses 

from you. 

You were involved subsequently, though, in these discussions. 

Am I right? 

Mr. MOSCHELLA. That is right. I was involved in the discussions. 

Mr. CONYERS. Did you consult former DOJ officials, like James 

Comey? 

Mr. MOSCHELLA. I don’t believe Mr. Comey was consulted. 

Mr. CONYERS. Well, was anyone at the White House consulted or 

did they offer any input in compiling the list of U.S. attorneys to 

be terminated, to the best of your knowledge? 

Mr. MOSCHELLA. The list was complied at the Department of 

Justice. 

Mr. CONYERS. Was the White House consulted? 

Mr. MOSCHELLA. Well, eventually, because these are political appointees——

Mr. CONYERS. Sure. 

Mr. MOSCHELLA [continuing]. Which is unremarkable, send a list 

to the White House, let them know——

Mr. CONYERS. I understand. 

Mr. MOSCHELLA [continuing]. Our proposal and whether they 

agreed with it. 

Mr. CONYERS. The answer is yes. Your answer is yes? 

Mr. MOSCHELLA. Yes. 

25

Mr. CONYERS. All right. I believe that is ordinary process. 

Now, who did it go to in the White House? 

Mr. MOSCHELLA. Our contact is the counsel’s office. 

Mr. CONYERS. Who is that? 

Mr. MOSCHELLA. Specifically who in the counsel’s office? 

Mr. CONYERS. Well, is it true that it was the White House that 

asked that you find a position for Mr. Rove’s former deputy, Mr. 

Timothy Griffin? 

Mr. MOSCHELLA. If you mean you as in me, personally——

Mr. CONYERS. You, as in Mr. Moschella. 

Mr. MOSCHELLA. No. 

Mr. CONYERS. But what about the department? 

Mr. MOSCHELLA. There was a point in time when, before Mr. 

Griffin had come back from Iraq, and knowing that he would be returning from his service in Iraq, that the counsel to the President 

communicated and asked is there——

Mr. CONYERS. So your answer is yes——

Ms. SA ́ NCHEZ. The time of the Chairman has expired. 

Were you finished with the answer to that question, Mr. 

Moschella? 

Mr. MOSCHELLA. I don’t know if we got it all. There was a communication about whether or not there was a place for Mr. Griffin 

and, obviously, he had already been considered for the other district in Arkansas, so there is an interest in allowing him to continue to serve his country in that capacity. 

Mr. CONYERS. Thank you, Mr. Moschella. 

Ms. SA ́ NCHEZ. Thank you, Mr. Conyers. 

The Chair now recognizes the gentleman from Ohio, Mr. Jordan, 

for 5 minutes. 

Mr. JORDAN. Thank you, Madam Chair. 

Thank you, Mr. Moschella, for joining us today. 

Before or after the department determined to dismiss this group 

of attorneys, did the department ever interfere with one of their 

districts’ public corruptions cases? 

Mr. MOSCHELLA. Absolutely not. 

Mr. JORDAN. Never asked to speed any up? Never asked to dismiss a case? 

Mr. MOSCHELLA. No. 

Mr. JORDAN. Before or after the department determined to dismiss this group of attorneys, did the department support the attorneys’ investigations and prosecutions of public corruption cases, 

whether against Republicans or Democrats or whomever? 

Mr. MOSCHELLA. Absolutely. I mean, the attorney general, as I 

said, the attorney general and the director of the FBI have made 

this area a priority. Who else other than the FBI and the Justice 

Department can root out the kind of corruption that we want to see 

rooted out? And I think that the record—and Mr. Conyers mentioned Ms. Lam. I didn’t say that Ms. Lam’s performance in the 

things that she was doing was poor. The Cunningham case is something, as I said, we applaud, we herald, and if public officials are 

engaged in that kind of activity, they need to be brought to justice. 

All I pointed out with regard to that district is that in the other 

priority areas, they were not being as vigorously pursued as we 

would have liked. 

26

Mr. JORDAN. You had mentioned in your earlier testimony and 

you just referenced it right there, about Ms. Lam, that she was 

91st out of 93 or 92nd out of 94 districts. For the other five attorneys, can you give me a summary of where they may have ranked 

in specific areas of prosecution cases relative to that, you know, to 

the 94 districts across the country? 

Mr. MOSCHELLA. Well, in the other districts, we didn’t have this 

same sort of difference on prosecution. We certainly had these 

other policy differences. For example, as I mentioned for Mr. 

Charlton, on death penalty or FBI taping and the like. 

We certainly were aware, those who are considering these things, 

we certainly were aware that in Mr. McKay’s district, that the sentencing—within—he had one of the—maybe one other district was 

lower, but one of the lowest within guidelines sentencing ranges, 

and we had—Deputy Attorney General Comey had sent out a 

memo I believe in 2004 to all U.S. attorneys indicating that we, the 

Justice Department, need to do our part to ensure that we get the 

maximum number of within guideline sentences. 

So that was a consideration, certainly, in that district. 

Mr. JORDAN. You also mentioned in your testimony relative to 

Mr. McKay, since you just brought him up there, that there were 

policy differences. Can you elaborate a little bit more on those policy differences? 

Mr. MOSCHELLA. He was a vigorous and strong proponent of a 

particular information sharing system called LInX. He did a lot to 

promote it around the country and within the department, but we 

had a difference, and the manner in which we——

Mr. JORDAN. And it was fair to say that you communicated the 

difference that the leadership in the Department of Justice had 

with him, and yet he continued to promote that? 

Mr. MOSCHELLA. Yes. He was always in contact, particularly on 

this issue, because the deputy attorney general’s office is really 

driving information sharing policy. So he clearly knew the position 

of the department in this regard. 

Mr. JORDAN. Appreciate it. 

Madam Chair, I yield back the balance of my time. 

Ms. SA ́ NCHEZ. Thank you. 

The gentlewoman from California, Ms. Lofgren, is recognized for 

5 minutes. 

Pardon me, I skipped over a colleague. 

The gentleman from Georgia, Mr. Johnson. My apologies. You 

are recognized for 5 minutes. 

Mr. JOHNSON. Thank you. 

Mr. Moschella, is it true—or I should say, isn’t it a fact that several of the individuals in the group that drew up the termination 

list have close associations with the White House, in particular 

Kyle Sampson, who worked at the White House until coming to 

DOJ in 2003 and one of Monica Goodling’s jobs at Department of 

Justice is to be a liaison to the White House. Is that correct? 

Mr. MOSCHELLA. That is correct. But that is her job. I would 

hope that the White House liaison within the department had a 

close working relationship with the White House. It is kind of in 

the job description. 

Mr. JOHNSON. Of course. 

27

Mr. MOSCHELLA. And Kyle Sampson is the chief of staff to the 

attorney general. I assume that the chief of staff to the attorney 

general has some relationship. 

Mr. JOHNSON. Is it possible, Mr. Moschella, that there are conversations that they or others had with you or had—that they had 

or other had—that you don’t know about? Isn’t that correct? There 

are possibilities that they had conversations that you don’t know 

about? Isn’t that correct? 

Mr. MOSCHELLA. Well, Congressman, in preparation for this 

hearing, I did what I think is the appropriate amount of due diligence to collect the facts and so while anything is possible, I believe 

I know——

Mr. JOHNSON. It is possible, and you answered the question. 

Were there meetings of the group within the Justice Department 

that compiled the termination list? 

Mr. MOSCHELLA. Meetings? There were meetings. 

Mr. JOHNSON. And were there memoranda or record of these 

meetings or e-mails or other communications on the subject that 

were generated? 

Mr. MOSCHELLA. I don’t know of any memoranda that was created. At some point, names were put on a list, but I don’t know 

about the specific records. 

Mr. JOHNSON. Who would have control of that list? Who would 

maintain control of that list? 

Mr. MOSCHELLA. Well, if folks have a list in their——

Mr. JOHNSON. Specifically who? 

Mr. MOSCHELLA. I don’t know what information is in anyone’s 

files. The information could be in any number of places. 

Mr. JOHNSON. All right. 

At some point, recommendations were made to Deputy Attorney 

General McNulty and Attorney General Gonzales about which U.S. 

attorneys to terminate. Did they agree with those that your group 

recommended or were there any changes to the list that they 

made? 

Mr. MOSCHELLA. I wouldn’t put it exactly the way you did, sir. 

This was not kind of a working group that made a recommendation 

to the DAG and the AG. It was more a collaborative process between——

Mr. JOHNSON. So they were involved, along with your group, in 

making this list? 

Mr. MOSCHELLA. And there was a consultation process, and as 

they were looking at——

Mr. JOHNSON. They came to a consensus kind of agreement, is 

that what it was? 

Mr. MOSCHELLA. That is right. It came to a consensus. 

Mr. JOHNSON. All right, well, let me ask you this question then. 

Is there anything that evidences the agreement? Any written 

memoranda, any documentation that evidences that consensus 

agreement? Or is it just in someone’s head? 

Mr. MOSCHELLA. I don’t have a specific document in mind, 

but——

Mr. JOHNSON. Well, are there some documents that you can identify for us that evidence the consensus agreement? 

28

Mr. MOSCHELLA. No, but I assume that there is—that the names 

were on a piece of paper at some point. And the names are the 

seven that——

Mr. JOHNSON. Did you make a list of the names? 

Mr. MOSCHELLA. I did not. 

Mr. JOHNSON. Did you see anyone else make a list? 

Mr. MOSCHELLA. I did not see anyone make a list. 

Mr. JOHNSON. How many times did this group meet along with 

McNulty and Gonzales about this list? 

Mr. MOSCHELLA. I don’t know a specific number of times that the 

group met. 

Mr. JOHNSON. Do you recall the dates that you all met? 

Mr. MOSCHELLA. No. And as I said, I may have been involved in 

some of the meetings. I did not have a basis upon which to add 

substantively to the record of the U.S. attorney. So I may not have 

been in any meetings. 

Prior to serving as the Pay DAG, I was the assistant attorney 

general for legislative affairs for three and a half years and so——

Mr. JOHNSON. Mr. Moschella, I am getting ready to run out of 

time and I want to ask you this question. 

The Committee is very interested in further inquiry into this 

matter. Can I have your assurance that you will make available to 

the Committee the individuals I have asked you about and all 

memoranda, e-mails and other documents on this subject as was 

asked by myself and previous questioners? Can I get your commitment on that? 

Mr. MOSCHELLA. Congressman, we have done everything we can 

to cooperate, including providing documents to the Committee, having the briefings. We will continue to work with you. 

Mr. JOHNSON. Thank you, sir. 

Ms. SA ́ NCHEZ. The time of the gentleman has expired. 

The Chair now recognizes that gentleman from Florida, Mr. Keller, for 5 minutes. 

Mr. KELLER. Thank you, Madam Chairman. 

Mr. Moschella, do U.S. attorneys serve at the pleasure of the 

President? 

Mr. MOSCHELLA. Yes, sir. 

Mr. KELLER. Because I only have 5 minutes, I am going to limit 

my questions to Ms. Lam’s situation. That has been brought up 

quite a bit. 

Did the Department of Justice headquarters ever discourage Ms. 

Lam from bringing the case against Duke Cunningham? 

Mr. MOSCHELLA. No. In fact, I know that there was discussion 

about which district to send it to, and her district was favored over 

another district. 

Mr. KELLER. Did the Department of Justice actually assist Ms. 

Lam in trying to help her obtain documents from Congress relating 

to the Duke Cunningham case? 

Mr. MOSCHELLA. Yes, assistance has been provided in that regard. 

Mr. KELLER. Let me be crystal clear. Did Ms. Lam’s role in prosecuting Duke Cunningham have anything whatsoever with her 

being asked to resign? 

Mr. MOSCHELLA. No, sir. 

29

Mr. KELLER. Now, it is my understanding from your earlier testimony, the concerns that the attorney general had with her related 

to the prosecution of gun crimes and immigration enforcement. Is 

that correct? 

Mr. MOSCHELLA. Yes, sir. 

Mr. KELLER. Okay. And those concerns, in fact, actually predated 

the Duke Cunningham scandal coming to light. Isn’t that correct? 

Mr. MOSCHELLA. Yes. Well, I don’t know exactly when Duke 

Cunningham——

Mr. KELLER. I will refresh your recollection. This is the story 

that broke the Duke Cunningham story wide open, published by 

San Diego Union Tribune June 12, 2005: ‘‘Lawmakers’ Home Questioned.’’ This was the beginning of the end, appropriately, for Mr. 

Cunningham. 

I have letters here, letter after letter, over a year before that. 

February 2, 2004, Congressman Darrell Issa writing to Ms. Lam, 

complaining that she is not prosecuting alien smugglers. March 15, 

2004, Ms. Lam responds to Congressman Issa. May 24, 2004, Will 

Moschella, on behalf of DOJ, responding to Mr. Issa, raising concerns about an illegal alien smuggler, Antonio Imparo Lopez not 

being prosecuted. 

Does that refresh your recollection? 

Mr. MOSCHELLA. It does. 

Mr. KELLER. So, in fact, the concerns that were being raised, 

which ultimately led to her dismissal, were raised before we even 

knew about the Duke Cunningham scandal. Is that right? 

Mr. MOSCHELLA. Well, I don’t want to get——

Mr. KELLER. Before the public knew about it. 

Mr. MOSCHELLA. Yes, those concerns existed. As I testified in the 

2004-2005 time frame, when she specifically changed policy in the 

department, there was a precipitous drop in the number of immigration cases. 

Mr. KELLER. Let me cut you off, because I have got to go with 

some more questions. 

Did the Department of Justice ever share its concerns before asking her to resign, about the problem with gun violence prosecution 

and immigration enforcement prosecution? 

Mr. MOSCHELLA. On the gun side, yes. I believe she had a conversation about it with Deputy Attorney General Comey. On the 

immigration side, I don’t know specifically what was communicated. I know there was back and forth with regard to what was 

going on in her district. 

But, that said, again, United States attorneys know what the priorities are and should be executing on those priorities. 

Mr. KELLER. Let me again refresh your recollection. On April 6, 

2006, Attorney General Gonzales testified before the full House Judiciary Committee, and I relayed to him some concerns I heard 

from border patrol agents, having spent a week with the border patrol in San Diego, about their complaints about there not being any 

prosecution of people who are smuggling aliens unless they commit 

a violent act against someone or bring 12 people with them. 

And this specifically was my question to Attorney General 

Gonzales: ‘‘What if anything will you do to see that the U.S. attorVerDate 0ct 09 2002 11:16 Aug 09, 2007 Jkt 000000 PO 00000 Frm 00035 Fmt 6633 Sfmt 6601 H:\WORK\COMM\030607\33809.000 HJUD1 PsN: DOUGA
30

ney in San Diego prosecutes those alien smugglers, at least those 

who have been repeatedly arrested by border patrol agents?’’

Answer, by Gonzales: ‘‘I am aware of what you are talking about 

with respect to the San Diego situation, and we are looking into it. 

We are asking all U.S. attorneys, particularly those on our southern borders, to do more, quite frankly. We need to be doing more, 

and we are looking at the situation in San Diego, and we are directing that our U.S. attorneys do more, because you are right, if 

people are coming across the border repeatedly, particularly those 

who are coyotes and they are smugglers, whether criminals or felons, they ought to be prosecuted.’’

Now, that little dialogue between myself and the attorney general took place on national TV, on CSPAN. 

Mr. MOSCHELLA. I was sitting behind him. 

Mr. KELLER. You were sitting behind him. After that, did the attorney general or anyone from DOJ share with Ms. Lam the concerns that he had raised at the hearing relating to the prosecution 

of alien smugglers? 

Mr. MOSCHELLA. I can’t tell you if a transcript or something like 

that was sent to her. I don’t know. 

Mr. KELLER. You don’t know? Okay. 

Thank you. I will yield back the balance of my time. 

Ms. SA ́ NCHEZ. Thank you. 

The gentlewoman from California is recognized, Ms. Lofgren, for 

5 minutes. 

Ms. LOFGREN. Thank you, Madam Chairwoman. 

The Department of Justice has praised the Cunningham corruption probe as really a lynchpin in the growing pursuit of public corruption cases and I believe at the time that former U.S. Attorney 

Carol Lam left the office, that probe had led to at least two more 

indictments and I think was still ongoing, based on press accounts. 

I am concerned about the state of those investigations. The top 

FBI official in San Diego, according to the San Diego Union Tribune, was quoted as saying that Ms. Lam’s dismissal would undermine multiple continuing investigations. And I realize that mid-last 

month several Members of Congress wrote to the department, suggesting that Ms. Lam be retained as outside counsel so that those 

corruption investigations would not be disrupted and would be 

completed. 

Is the department intending to take that course of action? 

Mr. MOSCHELLA. No. We see no reason to have outside counsel 

on this case. And let me say, I would be surprised if it were Ms. 

Lam’s opinion that the prosecutors on the case were not able to fulfill the——

Ms. LOFGREN. Reclaiming my time, I am just quoting the top FBI 

official who expressed the concern that these investigations would 

be disrupted. 

Mr. MOSCHELLA. I can say—let me say that that individual also 

used a very inflammatory word in one of the press articles and said 

that the decision was politics, and there is absolutely, positively no 

basis for it. No one is——

Ms. LOFGREN. I don’t know the individual. I do know the FBI, 

and they tend not to be very political people. They are tough cops. 

Mr. MOSCHELLA. My brother is an FBI agent. I respect their——

31

Ms. LOFGREN. And they are not tough cops? 

Mr. MOSCHELLA. And they are. But let me tell you, that comment 

was absolutely irresponsible. 

Ms. LOFGREN. Well, you can imagine, if you will, Mr. Moschella, 

that the impact of these firings has led to concern about the role 

of politics across the country. 

Let me ask you this, and we will hear from the fired U.S. attorneys shortly on the alleged reasons for their termination, but would 

you agree with me and the CRS that although U.S. attorneys have 

in fact sometimes been dismissed in the past, the discharge of this 

many U.S. attorneys, I think it is eight so far, in this short a period 

of time is unprecedented? 

Mr. MOSCHELLA. I don’t know if it is unprecedented. But as I 

said before, what was going on at the department was a process 

to look at what we can do in the last 2 years of the Administration 

to push the policies and priorities of the department. Nothing more, 

nothing less. 

In January, the attorney general directed that he get briefed on 

his policy and priority areas. He had set specific goals, specific 

metrics that we measure ourselves by, and we intend to fulfill our 

own goals in this regard. 

Ms. LOFGREN. Let me ask you this. Is it true that at least with 

respect to the six U.S. attorneys that are here with us today, all 

received favorable performance reviews or EARS evaluations? 

Mr. MOSCHELLA. No. And let me just say that has been talked 

about. EARS reports are not reviews of the U.S. attorneys themselves. The U.S. attorneys have two supervisors, the attorney general and the deputy attorney general. Neither——

Ms. LOFGREN. Have these reports been provided to the Committee? 

Mr. MOSCHELLA. I believe they have. 

Ms. LOFGREN. All right. Then I will review them in some detail. 

We learned just today that Mr. Battle has apparently submitted 

his resignation sometime ago. Have you provided a copy of his resignation letter to the Committee or record of his resignation decision to his Committee? 

Mr. MOSCHELLA. No. 

Ms. LOFGREN. Could you do so? 

Mr. MOSCHELLA. I will get back to the Committee, but let me 

just say, I saw Mike Battle yesterday and had a good laugh over 

this. Mike Battle had indicated to folks in the department that he 

was looking last year and folks have known about this for quite 

sometime. 

Ms. LOFGREN. Well, if we could just get the documents, that 

would be very good. 

Now, we are interested in the nature and extent of communications between the department and Members of Congress concerning any of the terminated U.S. attorneys. Can you provide us 

with communications from Members of Congress, on both sides of 

the aisle, in advance of the terminations of the U.S. attorneys? 

Mr. MOSCHELLA. We will go back and see what—the only letters, 

really, that I know of, are the ones by Senator Feinstein and the 

ones referenced by Mr. Keller. 

32

Ms. LOFGREN. Verbal communication would also be included, if 

you could. 

Ms. SA ́ NCHEZ. The time of the gentlewoman has expired. 

The Chair now recognizes the gentleman from Florida, Mr. 

Feeney, for 5 minutes. 

Mr. FEENEY. Thank you, Madam Chairman. 

Mr. Moschella, thanks for being back with us. 

There is one statement in your testimony that probably isn’t 

technically correct. You say, like other high-ranking officials in the 

executive branch, you are referring to U.S. State attorneys, ‘‘They 

may be removed for any reason or no reason at all.’’ That probably 

isn’t exactly accurate, that you couldn’t fire somebody because, for 

example, of their race or ethnicity. You couldn’t fire somebody to 

obstruct justice. 

Would it be correct that you can’t fire even high-level officials for 

any reason whatsoever? 

Mr. MOSCHELLA. As we said, everyone—there was a reason, 

whether folks agree or disagree with these, there was a reason. 

Mr. FEENEY. I was just pointing out that, theoretically, there are 

certain——

Mr. MOSCHELLA. I have not done the article 2 analysis about 

whether or not there is any limitation on the President. I don’t believe so, but there are all reasons in this case. It wouldn’t be the 

right thing to do in the examples that you said. 

Mr. FEENEY. I think what you really intended or ought to have 

said there is that these are not lifetime appointments, they serve 

at the pleasure of the President. And within reason, he has the 

ability to, just as he does to hire them, to fire them for anything 

that would be a legal reason. 

Mr. MOSCHELLA. They are like the folks sitting behind you today. 

They are at-will employees. I sat there for almost 13 years. 

Mr. FEENEY. Aside from the performance issues on some specific 

benchmarks that you mentioned in the Southern California case, 

you also point out that these are not just prosecutors, that they 

have managerial and policy responsibilities. 

And so that, for example, you point out that the attorney general, 

at U.S. attorney conferences and through memos, even the President of the United States through a video, announces his priority 

policies and what can you do to State attorneys who are simply ignoring the attorney general and the President of the United States 

when it comes to management responsibilities and policy priorities? 

Other than firing, do you have any other discipline mechanisms? 

Mr. MOSCHELLA. No, there isn’t a way that you can garnish 

their—I don’t believe you can garnish their wages, or something 

like that. I mean, they are the presidential-appointed, Senate-confirmed leader of that office, and I don’t know how else we would 

communicate to them those priorities, other than the manner in 

which you state, the memos, conferences and the like. 

Mr. FEENEY. I remember a great deal of criticism of the former 

secretary of defense and criticism of the President for not asking 

him to step down earlier. There was even criticism after he did 

step down. Recently, we have had people with the U.S. Army resign because of a situation at Walter Reed. 

33

It seems as if the Administration is damned if they do and 

damned if they don’t when it comes to replacing people that are not 

putting priorities on their policies. I can tell you, I for one have 

been strongly critical, not just of independent state of attorneys for 

lack of enforcement, for illegal immigration issues and violent 

crime, but of the Administration itself, and I am delighted to hear 

that no matter how successful in one area a State attorney is, that 

if they are not prosecuting illegal immigration offenses, and especially firearm offenses with respect to violence, that I personally 

am delighted that there is a signal sent to all State attorneys that 

these are priorities of the Administration and, personally, I want 

to congratulate you. 

By the way, one thing that we haven’t put formally in the record, 

Congressman Keller talked about his correspondence and Congressman Issa’s, but it wasn’t just Republicans complaining about 

lack of enforcement in Southern California. Senator Feinstein’s letter on June 15, 2006 made very clear that the U.S. attorney’s office 

for the Southern District of California may have some of the most 

restrictive prosecutorial guidelines nationwide for immigration 

cases, such that many border patrol agents end up not referring 

their cases. 

I also want to stress the importance of vigorously prosecuting 

these types of cases. And she goes on to say that she is concerned 

that lax prosecution can endanger the lives of border patrol agents. 

So Republicans and Democrats in Congress are urging the Administration to do a better job in Southern California. And as you 

said, you can’t garnish wages. You really only have one remedy 

available to you, and I personally applaud you for using it. I hope 

everybody else along the border gets the message. By the way, I 

hope they will quit——

Ms. SA ́ NCHEZ. The time of the gentleman has expired. 

Mr. FEENEY [continuing]. Prosecuting border patrol agents, if I 

can add my two cents on that, too. 

Ms. SA ́ NCHEZ. The gentleman from Massachusetts, Mr. Delahunt, 

is recognized for 5 minutes. 

Mr. DELAHUNT. Thank you, Madam Chair. 

Mr. Moschella, I am going to ask you to keep your responses as 

concise as possible because there is a series of questions I would 

like to pose to you. 

I found it interesting that you used the word authorized the U.S. 

attorney to seek the death penalty. Does that mean in terms of 

your policy that if main Justice makes a decision to authorize the 

U.S. attorney to seek the death penalty, that that U.S. attorney 

must comply with that authorization? Is there any discretion at 

all? 

Mr. MOSCHELLA. Yes. It is to seek. 

Mr. DELAHUNT. Then it is a decision made in Washington. It is 

not made in the local jurisdiction? 

Mr. MOSCHELLA. That is right. This is a non——

Mr. DELAHUNT. Thank you. 

You know, you referred in very cursory terms to a more expanded version of why many of these individuals had been terminated. Were they given that information prior to the termination? 

Mr. MOSCHELLA. No, sir. 

34

Mr. DELAHUNT. Wouldn’t it have been a better practice to extend 

that courtesy to them? 

Mr. MOSCHELLA. As I said, in hindsight, it absolutely would 

have. I think that——

Mr. DELAHUNT. Thank you. 

Mr. MOSCHELLA. Yes, sir. 

Mr. DELAHUNT. You know, you mentioned that in response to a 

question by Congresswoman Lofgren, that I don’t think that you 

really meant it, that it was unprecedented or that there had been 

precedents in terms of the eight dismissals within a matter of 

months. 

Mr. MOSCHELLA. My only point is I have not gone back in past 

Administrations and done a——

Mr. DELAHUNT. To be perfectly candid, Mr. Moschella, and I do 

have respect for you, you know that, this has been a matter that 

has been raised prior, too, and you haven’t gone back and done that 

kind of research? 

Mr. MOSCHELLA. I have not. 

Mr. DELAHUNT. There was a Senate hearing this morning. It is 

my understanding that during the course of that hearing, one of 

the individuals that is present here today, Mr. Cummins, testified 

before the Senate that he received a telephone call from Michael 

Alspin on or about February 20. Are you aware of that testimony? 

Mr. MOSCHELLA. I am generally aware of it. I don’t know that 

I caught it all. I caught some of it. 

Mr. DELAHUNT. Okay. Well, according to my information, the 

former U.S. attorney testified that Mr. Alspin explained that the 

public perceived the Department of Justice as being reluctant to 

disseminate specific information regarding the U.S. attorneys’ dismissals. But that if the dismissed U.S. attorneys continue to speak 

to the media, the Department of Justice would have to release information that would exacerbate the U.S. attorneys’ situation. 

Mr. Cummins further mentioned that Mr. Alspin suggested that 

it would be a bad idea for the dismissed U.S. attorneys to voluntarily testify in Congress. Are you familiar with that testimony by 

Mr. Cummins? 

Mr. MOSCHELLA. I am not sure that that is what he said. In fact, 

after questioning by Senator Specter, he said that whatever transpired, he said I wouldn’t make a good witness at a trial in this 

matter. He didn’t have a clear recollection of specific words, and 

that it was his opinion that whatever it was, was friendly advice. 

And that is a quote. He said it was friendly advice. 

Mr. DELAHUNT. Okay. Thank you, Mr. Moschella. 

Would you have——

Mr. MOSCHELLA. Can I just say——

Mr. DELAHUNT. I don’t have a lot of time. 

Mr. MOSCHELLA. I will be very brief. 

Mr. DELAHUNT. My time is very short. 

Let me just pose one additional question, then. Would the Department of Justice make Mr. Alspin available to this Committee 

for purposes of inquiry into this matter? 

Mr. MOSCHELLA. That is not a decision for me, but I will certainly take it back and get back to you as soon as we can. 

Mr. DELAHUNT. Who is the decision for? 

35

Mr. MOSCHELLA. I will consult with the new acting head of the 

Office of Legislative Affairs. 

Mr. DELAHUNT. Well, I think that you have an increase in your 

pay grade. Would your recommendation be favorable that this 

Committee would have an opportunity to inquire of Mr. Alspin? 

Mr. MOSCHELLA. I think Mr. Alspin would probably be happy to 

talk to you about that. 

Mr. DELAHUNT. I thank you, and I yield back. 

Ms. SA ́ NCHEZ. Thank you. Would——

Mr. MOSCHELLA. Madam Chairman, may I just—because I didn’t 

get an opportunity to just make one point in that questioning by 

Mr. Delahunt. 

I just want to say, as I said, we should have, in retrospect, told 

these U.S. attorneys the reasons. And the record is that we did not 

go out publicly and talk about these things. The record is that the 

press reported on it. There were inquiries by the Congress. We 

briefed the Senate. The deputy attorney general briefed the Senate 

in closed door sessions——

Ms. SA ́ NCHEZ. Mr. Moschella, will that be your policy in the future, moving forward, that you will explain to U.S. attorneys who 

you are asking to resign the reasons for their termination, prospectively? 

Mr. MOSCHELLA. It seems to me the prudent course. 

Ms. SA ́ NCHEZ. Thank you. 

We have been advised by the House parliamentarian that once 

Mr. Watt’s time began it could not be interrupted, and therefore 

that Mr. Watt’s time for this round of questions has expired. 

Is there any objection to Mr. Watt receiving 3 minutes of time 

now for questioning? 

Mr. CANNON. Madam Chair, reserving the right to object, I would 

be pleased if Mr. Watt had 5 minutes to question. 

Ms. SA ́ NCHEZ. Is there any objection to Mr. Watt being recognized for 5 minutes for this round of questioning? 

Hearing none, Mr. Watt is recognized for 5 minutes. 

Mr. WATT. I thank both the Chairman and the Ranking Member. 

Mr. Moschella, this morning’s New York Times published an article saying that former Federal prosecutor of Maryland, Thomas 

DiBiagio, was forced out in early 2005 because of political pressure 

stemming from public corruption investigations involving associates of the State governor, Mr. Ehrlich, our former colleague. 

First, are you aware of efforts made by any prominent Maryland 

Republicans to pressure Mr. DiBiagio to back away from the inquiries about the Ehrlich administration? 

Mr. MOSCHELLA. I am not. 

Mr. WATT. Are you aware of any complaints made to the FBI by 

Mr. DiBiagio about this incident? 

Mr. MOSCHELLA. I am not. 

Mr. WATT. Now, when you say you are not aware of it, does that 

mean it is not the case, or you just don’t have any personal knowledge of it? 

Mr. MOSCHELLA. I am saying that I don’t have personal knowledge. But——

Mr. WATT. Have you done anything to review these allegations? 

36

Mr. MOSCHELLA. I have, in the last several hours since the story 

broke this morning. 

Mr. WATT. And you haven’t found any impropriety there, is that 

what you are saying? 

Mr. MOSCHELLA. That is correct. And, in fact——

Mr. WATT. I am just trying to get to the bottom of this. 

Mr. MOSCHELLA. But let me——

Mr. WATT. Did Mr. DiBiagio’s investigation into whether associates of Governor Ehrlich had improperly funneled money from 

gambling interests to promote legalized slot machines in Maryland 

play any role in his dismissal? 

Mr. MOSCHELLA. Absolutely not. 

Mr. WATT. And you are saying that as a matter of fact, not just 

based on your personal knowledge? Were you involved in his dismissal? 

Mr. MOSCHELLA. No. As I said, I was not in the deputy’s office 

until October of last year. But I—what I want to——

Mr. WATT. Are you saying that is a statement of facts on behalf 

of the department, or are you saying it based on your knowledge? 

Mr. MOSCHELLA. No, I am, because I—and this is what I wanted 

to explain—I spoke to 42-year career veteran David Margolis who 

is the person in charge of ethics matters in the department under 

this Administration and the Clinton administration. And he walked 

me through what occurred then. 

Mr. WATT. Okay. Well, that is why I am just trying to make sure 

that there was no impropriety. Is it your testimony, then, that Mr. 

Ehrlich and no one else in his administration contacted the Department of Justice about Mr. DiBiagio’s performance as U.S. attorney? 

Mr. MOSCHELLA. In fact, I believe it is Mr. Margolis’ recollection 

that they supported him in the U.S. attorney position. 

Mr. WATT. Okay. And tell us, then—if you know, Mr. 

Moschella—what the circumstances under which Mr. DiBiagio was 

asked to leave. 

Mr. MOSCHELLA. Thank you, Congressman. 

As I said, I discussed this matter with David Margolis, who has 

the responsibility in the department for these matters. It came to 

his attention that there were inappropriate e-mails and a staff 

meeting initiated by Mr. DiBiagio in which he specifically called for 

public corruption cases within a specific time frame, indicating that 

he wanted to bring some prior to the election. 

This was so egregious that the deputy attorney general at the 

time, Jim Comey, had to write him a letter saying, ‘‘You will not 

bring any public corruption cases without running it by me first.’’

Mr. WATT. So wait a minute, now. This seems entirely inconsistent with your prior testimony that this was totally unrelated to 

any public corruption investigation. Am I missing something here? 

Didn’t you just testify that there was no connection? 

Mr. MOSCHELLA. His being asked to remove had nothing to do 

with any public corruption case. What I am saying is he sent several e-mails——

Mr. WATT. But wasn’t this before the election of Governor Ehrlich, and he was trying to get a prosecution done or charges 

brought before that election? And you are saying that an instrucVerDate 0ct 09 2002 11:16 Aug 09, 2007 Jkt 000000 PO 00000 Frm 00042 Fmt 6633 Sfmt 6601 H:\WORK\COMM\030607\33809.000 HJUD1 PsN: DOUGA
37

tion from the Department of Justice to him not to pursue an investigation and charges before the election is not related? 

Mr. MOSCHELLA. We didn’t tell him not to pursue any specific 

case. In fact, I am happy to provide the Committee with the agenda 

for the staff meeting that he called. 

And I just want to make this clear, after this just kind of outrageous kind of conduct occurred, David Margolis commissioned a 

specific review of him in which the evaluators found that the office 

was in disarray, poorly managed, had extremely poor morale. 

This is something that is kind of well known in——

Mr. WATT. All coincidentally right after he said——

Ms. SA ́ NCHEZ. The time of the gentleman——

Mr. WATT [continuing]. ‘‘I want to pursue a prosecution before an 

election involving the governor of Maryland.’’ That is all coincidental, I take it. 

Mr. MOSCHELLA. I don’t know. 

Ms. SA ́ NCHEZ. The time of the gentleman has expired. 

Mr. CONYERS. I would request unanimous consent that Mr. Watt 

be extended an additional 2 minutes so that he can explore with 

Mr. Moschella the circumstances in this particular situation. 

Ms. SA ́ NCHEZ. The request is for unanimous consent for Mr. Watt 

to continue with this line of questioning for 2 minutes. Is there any 

objection? 

Hearing none, Mr. Watt you may continue. 

Mr. WATT. I guess the question I am raising is, you have testified 

on the one hand that there is no connection, and then you have 

come right back around and testified that there is a connection because there was a specific letter that went out from the Justice Department saying you shall not put a time line on this, and then you 

say there is no connection? 

Mr. MOSCHELLA. No, no, no. 

Mr. WATT. It seems to me that the investigation should have 

been launched of the person who wrote that letter. 

Mr. MOSCHELLA. No, no. There is no ‘‘this,’’ as in a specific case. 

So, in other words, he was requesting from his staff, and I think 

that if you look at, the Baltimore Sun early examined this issue, 

the concern—and I can tell you that——

Mr. WATT. Was the e-mail related to this particular corruption 

investigation or it was a general e-mail? 

Mr. MOSCHELLA. It was general. 

Mr. WATT. Okay. And your response was a general response, related to no particular corruption investigation. Is that what you are 

saying? 

Mr. MOSCHELLA. That is right. 

Mr. WATT. Okay. 

I yield back the balance of my time. 

Ms. SA ́ NCHEZ. Thank you, Mr. Watt. 

The gentleman from Arizona, Mr. Franks, is recognized for 5 

minutes. 

Mr. FRANKS. Madam Chairman, I have no questions for this witness. Thank you. 

Ms. SA ́ NCHEZ. Mr. Moschella, thank you very much for your testimony. 

If you could please stick close in case there are further questions. 

38

We will now move to our second panel. Will the second panel of 

witnesses please be seated. 

Mr. COHEN. Thank you, Madam Chair. I had a bill I had to handle, first one, passed. 

But is there a chance Mr. Moschella could come back for just a 

minute? 

Ms. SA ́ NCHEZ. Is there any objection to recalling Mr. Moschella 

so that Mr. Cohen may question him? 

Hearing no objection, Mr. Moschella? 

And, Mr. Cohen, the gentleman from Tennessee, is recognized for 

5 minutes. 

Mr. COHEN. Thank you, Madam Chairman, and I appreciate the 

Committee. 

If these questions have been asked of you, sir, I apologize. But 

you have discussed Mr. Cummins, and at some point you had said 

that he had made it known that he wanted not to fill out his term. 

Did he make that known to you? 

Mr. MOSCHELLA. No, sir. 

Mr. COHEN. Did he make it known to anybody at the Department 

of Justice? 

Mr. MOSCHELLA. What I have been told is that both because of 

some press reporting and some comments made to colleagues, that 

it was generally known that he would be looking to move on at 

some point, not serving out the full, you know, the second term, the 

full second term. 

Mr. COHEN. What other situations does the Administration depend on press reports to take policy actions? Does the Administration regularly act on press reports or do they basically act on facts 

that they ascertain themselves? 

Mr. MOSCHELLA. I didn’t say that it was done solely on that. 

There was information that he had indicated, as I am told, by two 

colleagues, for example at the U.S. attorneys conference, that it 

wouldn’t be—because of whatever particulars to his situation, he 

wouldn’t be there for the entire second term. 

Mr. COHEN. Did anybody pick up the phone and ask him if he 

wanted to resign? 

Mr. MOSCHELLA. I don’t believe so. I haven’t been told that that 

happened. 

Mr. COHEN. You said that you hired Mr. Griffin, that he had obviously served this country nobly in Mosul, and that he wanted to 

serve this country in another capacity, and that is the reason you 

hired him. Is that correct? 

Mr. MOSCHELLA. Mr. Griffin had gone through the process for 

the other district in Arkansas and was one of four individuals considered, and as I think I have already testified, was most likely to 

be the person selected for that position. He had prosecutorial experience here in Washington and in Arkansas. He worked on the 

Project Safe Neighborhood Project for Mr. Cummins, but then he 

took another position, so he was not selected for the other district, 

and then after that served in Iraq. 

Mr. COHEN. And you said after he came back from Iraq you 

wanted to give him this opportunity. Is that not correct, sir? I believe I heard that before I left. 

Mr. MOSCHELLA. No, that is right. 

39

Mr. COHEN. What are the other Affirmative Action Iraqi veteran 

programs that you have in the Department of Justice? Was this the 

entire Affirmative Action Iraqi veteran Department of Justice program, or do you have other programs for people returning from 

Iraq? 

Mr. MOSCHELLA. Well, of course we have the veteran’s preference 

laws which we institute through our personnel system, but this is 

not a normal personnel matter. This is a presidential-appointed, 

Senate-confirmed position. 

Mr. COHEN. And if he had not been in Iraq, would you have still 

hired him? 

Mr. MOSCHELLA. Pardon me? 

Mr. COHEN. If he had not gone to Iraq, would you have still 

wanted him to be the U.S. attorney? 

Mr. MOSCHELLA. As I said, before he went to Iraq, he was considered for another position and would likely have been selected but 

for the fact that he took another position. 

Mr. COHEN. You are familiar with Deputy Attorney General 

Palm McNulty? 

Mr. MOSCHELLA. I am. 

Mr. COHEN. And isn’t it true that at a Senate hearing that Mr. 

McNulty admitted that Mr. Griffin was not the best possible person 

for the job? 

Mr. MOSCHELLA. I don’t recall that to be his testimony? 

Mr. COHEN. What do you recall as his testimony? Did he suggest 

anything about Mr. Cummins not being a good attorney general? 

Mr. MOSCHELLA. No. He didn’t suggest that Mr. Cummins would 

not——

Mr. COHEN. What did he say about Mr. Griffin? 

Mr. MOSCHELLA. That Mr. Griffin was well qualified. Mr. Griffin 

had as much—I think Mr. Cummins would tell you he had as much 

prosecutorial experience, if not more, than when Mr. Cummins 

started in his position as U.S. attorney. 

Mr. COHEN. And where was that prosecutorial experience? 

Mr. MOSCHELLA. It was both here in Washington, in the criminal 

division, in the U.S. attorney’s office, in Mr. Cummins’ office, as an 

assistant United States attorney and then as a JAG lawyer. 

Mr. COHEN. What role did Mr. Rove play in recommending him 

to the Department of Justice? 

Mr. MOSCHELLA. I don’t know that he played any role? 

Mr. COHEN. Do you know if there is any correspondence or any 

e-mails from the White House or any person, Ms. Miers, Mr. Rove 

or anybody else, to the Department of Justice concerning either replacing Mr. Cummins or replacing him with Mr. Griffin? 

Mr. MOSCHELLA. No. As I think the deputy attorney general 

briefed Members of the Senate, that there was a communication at 

some point from the counsel to the President to the department in 

anticipation of Mr. Griffin coming back from Iraq and seeing if 

there was a position within the department and that he had already been considered for a United States attorney position. 

Ms. SA ́ NCHEZ. The time of the gentleman has expired. 

Mr. COHEN. May I ask one last question? 

Ms. SA ́ NCHEZ. Does the gentleman ask unanimous consent for 

one last question? 

40

Mr. COHEN. Unanimous consent, yes. Yes, ma’am. 

Ms. SA ́ NCHEZ. Any objection? 

Hearing none——

Mr. COHEN. I believe you talked about Mr. Alspin’s memo and 

you said you didn’t think it was an enhanced—that possibly it was 

an enhancement, as Mr. Cummins said. Is that correct? That it 

possibly could be an enhancement? 

Mr. MOSCHELLA. What memo? I am confused. 

Mr. COHEN. An escalation. I think that was the term Mr. 

Cummins used, that there could be an escalation of charges. You 

said that wasn’t true. 

Mr. MOSCHELLA. That is certainly not Mr. Alspin’s recollection of 

the conversation. And before you got here, I testified in recalling 

Mr. Cummins’ response to Senator Specter that he took it as 

friendly advice, and then others testified that they took it as more 

threatening. What I would say to the panel is that the person who 

was on the other end of the line took it as friendly advice and those 

who were not a party to the conversation may have taken it as 

more threatening. 

Ms. SA ́ NCHEZ. The time of the gentleman has expired. 

Mr. COHEN. Thank you, Madam Chair. 

Ms. SA ́ NCHEZ. Thank you. 

Again, Mr. Moschella, we thank you for your testimony. If you 

could please stay close. 

At this time, I would like to ask the second panel of witnesses 

to please be seated. 

I am pleased to introduce our second panel of witnesses. 

Our first witness, Ms. Carol Lam, served as a U.S. attorney for 

the Southern District of California from 2002 until February of 

2007. She joined the United States Attorneys Office for the Southern District of California as an assistant U.S. attorney in 1986 

where she was chief of the major fraud section. In 2000, she was 

appointed to be a judge of the San Diego Superior Court. 

Our second witness, David Iglesias, was U.S. attorney for the 

District of New Mexico from October 2001 until the end of February 2007. Mr. Iglesias was a U.S. Navy JAG officer from 1985 

to 1988. After leaving active duty in 1988, Mr. Iglesias continued 

his career in public service by serving as State assistant attorney 

general special prosecution. He is also a reserve captain in the 

Navy where he serves as staff judge advocate for Readiness Command Southwest. 

Our third witness, Daniel G. Bogden, served as U.S. attorney for 

the District of Nevada from October 2001 to February 2007. Prior 

to that, he was chief of the Reno Division of the United States Attorneys Office, where he had worked since 1990. He also served on 

numerous task forces and Committees, including the Attorney General’s Advisory Committees on Violent and Organized Crimes and 

Native American Issues and the executive board of the Southern 

Nevada High Intensity Drug Trafficking Area. 

Our fourth witness, Paul Charlton, was U.S. attorney for the district of Arizona from 2001 to February of 2007. As U.S. attorney, 

Mr. Charlton served as chairman for the Border Subcommittee and 

chaired the Arizona Antiterrorism Advisory Committee. Prior to his 

41

presidential appointment, he worked since 1991 as an assistant 

U.S. attorney in the District of Arizona. 

Our fifth witness, H.E. ‘‘Bud’’ Cummins, was U.S. attorney for 

the Eastern District of Arkansas from 2001 until December of 

2006. Prior to that, he was chief legal counsel for Governor 

Huckabee. He clerked for U.S. Magistrate John F. Forster, Jr. in 

the Eastern District of Arkansas and later clerked for the then 

chief judge of that district, Stephen Reasoner. He is currently 

working as a consultant for a bio-fuels company. 

Our final witness on the panel, John McKay, served as a U.S. attorney for the Western District of Washington from October 2001 

until January 2007. Prior to that, he was aide to Congressman Joel 

Pritchard. He served as special assistant to the director of the FBI 

while he was a White House fellow in 1989–1990 and as president 

of the Legal Services Corporation from 1997 to 2001. He also received in 2001 the Washington State Bar Association’s Award of 

Merit, its highest honor. 

I would like to extend to each of the witnesses my warm regards 

and appreciation for your cooperation with our subpoenas and for 

your presence here today. 

Given the gravity of the issues that we are discussing today and 

your role in these hearings, and so there is no misunderstanding, 

we would like to ask each of you, as we did with Mr. Moschella, 

to take an oath before you begin your testimony. Does anybody object to doing so? 

Thank you. 

[Witnesses sworn.] 

Ms. Lam, will you please proceed with your testimony? 

TESTIMONY OF CAROL LAM, FORMER UNITED STATES 

ATTORNEY FOR THE SOUTHERN DISTRICT OF CALIFORNIA 

Ms. LAM. Thank you. 

Good afternoon, Madam Chair and Members of the Subcommittee. My name is Carol Lam, and until recently I was the 

United States Attorney for the Southern District of California. 

In the interest of conserving time, I will be making introductory 

remarks on behalf of all the former United States attorneys before 

you on the panel today, with whom I have had the great privilege 

of serving as a colleague. 

From the following districts: Bud Cummins, Eastern District of 

Arkansas; Paul Charlton, District of Arizona; Daniel Bogden, District of Nevada; David Iglesias, District of New Mexico; and John 

McKay, Western District of Washington. 

We thank the Committee and your Subcommittee for your courtesy in the manner in which we were subpoenaed to appear before 

you today and we will do our best to answer fully and completely 

any questions posed to us by Members. 

Each of us is very appreciative of the President and our home 

State Senators and Representatives who entrusted us 5 years ago 

with appointments as United States attorneys. The men and 

women in the United States Attorneys Office, based in 94 Federal 

judicial districts throughout the country, have the great distinction 

of representing the United States in criminal and civil cases in 

Federal court. 

42

They are public servants who carry voluminous caseloads and 

work tirelessly to protect the country from threats, both foreign 

and domestic. It was our privilege to lead them and to serve with 

our fellow United States attorneys around the country. 

As United States attorneys, our job was to provide leadership in 

each of our districts to coordinate Federal law enforcement and to 

support the work of assistant United States attorneys as they prosecuted a wide variety of criminals, including drug traffickers, violent offenders and white-collar defendants. 

As the first United States attorneys appointed after the terrible 

events of September 11, 2001, we took seriously the commitment 

of the President and the attorney general to lead our districts in 

the fight against terrorism. We not only prosecuted terrorism related cases but also led our law enforcement partners at the Federal, State and local levels in preventing and disrupting potential 

terrorist attacks. 

Like many of our United States attorney colleagues across this 

country, we focused our efforts on international and interstate 

crime, including the investigation and prosecution of drug traffickers, human traffickers, violent criminals and organized crime 

figures. We also prosecuted, among others, fraudulent corporations 

and their executives, criminal aliens, alien smugglers, tax cheats, 

computer hackers and child pornographers. 

Every United States attorney knows that he or she is a political 

appointee, but also recognizes that the importance of supporting 

and defending the Constitution in a fair and impartial manner is 

important and devoid of politics. Prosecutorial discretion is an important part of a United States attorney’s responsibilities. The 

prosecution of individual cases must be based on justice, fairness 

and compassion, not political ideology or partisan politics. We believe that the public we served and protected deserves nothing less. 

Toward that end, we also believe that within the many prosecutorial priorities established by the Department of Justice, we have 

the obligation to pursue those priorities by deploying our office resources in the manner that best and most efficiently addresses the 

needs of our districts. As presidential appointees in particular geographic districts, it was our responsibility to inform the Department of Justice about the unique characteristics of our districts. All 

of us were long-time if not lifelong residents of the districts in 

which we served. 

Some of us had had many years of experience as assistant U.S. 

attorneys and each of us knew the histories of our courts, our agencies and our offices. We viewed it as a part of our duties to engage 

in discussion about these priorities with our colleagues and superiors at the Justice Department. When we had new ideas or differing 

opinions, we assumed that such thoughts would always be welcomed by the Department and could be freely and openly debated 

within the halls of that great institution. 

Recently, each of us was asked by Department of Justice officials 

to resign our posts. Each of us was fully aware that we served at 

the pleasure of the President and that we could be removed for any 

or no reason. In most of our cases, we were given little or no information about the reason for the request for our resignations. 

43

This hearing is not a forum to engage in speculation and we decline to speculate about those reasons. We have every confidence 

that the excellent career attorneys in our offices will continue to 

serve as aggressive, independent advocates of the best interests of 

the people of the United States, and we continue to be grateful for 

having had the opportunity to serve and to have represented the 

United States during challenging and difficult times for our country. 

While the members of this panel all agree with the views that 

I have just expressed, we will be responding individually to the 

Committee’s questions and those answers will be based on our own 

individual situations and circumstances. The members of the panel 

regret the circumstances that have brought us here to testify today. 

We hope those circumstances do not in any way call into question 

the good work of the United States attorney’s offices we led and the 

independence of the career prosecutors who staff them. 

And while it is never easy to leave a position one cares deeply 

about, we leave with no regrets because we served well and upheld 

the best traditions of the Department of Justice. 

Thank you, and we welcome the questions of the Chair and 

Members of the Committee. 

Ms. SA ́ NCHEZ. Thank you, Ms. Lam. 

I know that no other U.S. attorney has prepared written testimony. However, if witnesses would like to take a few minutes to 

respond to Mr. Moschella’s testimony, you may do so now. 

If nobody wishes to have that opportunity, we can just move 

straight into questioning. Is there any interest in responding to Mr. 

Moschella’s testimony? 

Mr. Iglesias? 

Mr. IGLESIAS. May I have a minute to review my notes? 

Ms. SA ́ NCHEZ. Absolutely. 

Mr. Bogden? 

TESTIMONY OF DANIEL BOGDEN, FORMER UNITED STATES 

ATTORNEY FOR THE DISTRICT OF NEVADA 

Mr. BOGDEN. I thank the Committee, and I am also thankful for 

this subpoena, because after going through a very traumatic and 

emotional time for me since December 7 when I got the call concerning what was happening with my position, I finally today got 

an explanation as to why I was asked to step down. 

After 161⁄2 years in the Department of Justice, knowing full well 

that my career with the Department of Justice now is essentially 

over, I relish the 51⁄2 years I had as United States attorney, but 

it is not a whole lot of solace when I realize that the reason why 

I was asked to step down is so new blood could be put in my position. 

My only question and concern of the department is what happened to the old blood? Our district has achieved, I think I have 

been an outstanding leader for the district, and I think we have accomplished the things that we needed to accomplish. We followed 

through on what the attorney general wanted us to do as far as our 

priorities and our mission, and I have been very proud of the way 

that my staff and my office was able to achieve under some very, 

very difficult conditions. 

44

I know that as a presidential appointee, I serve at the pleasure 

of the President, and I have been asked to step down and I can accept that and I will have no regrets in that regard. 

Ms. SA ́ NCHEZ. Thank you. 

Mr. Iglesias? 

TESTIMONY OF DAVID IGLESIAS, FORMER UNITED STATES 

ATTORNEY FOR THE DISTRICT OF NEW MEXICO 

Mr. IGLESIAS. Yes. Madam Chair, I would like to just briefly—

I promise this will not take anywhere near 5 minutes. 

Leadership. 2001, my office prosecuted 5,508 criminal defendants. 2006, 6,212 for an increase of 13 percent. Immigration cases 

went from 2,146 in 2001 to 2006 3,825, for a 78 percent increase. 

Increase in FTEs was only 7 percent. Cases handled per assistant 

U.S. attorney went from 76 to 100 during that 5-year period. 

62 percent of what my office does is immigration related, 24 percent drugs, 4 percent firearms. We have a 95 percent conviction 

rate. 

These numbers show improvement. Improvement does not happen in a vacuum. I respectfully challenge Mr. Moschella’s characterization of my 5 years as somehow lacking in leadership. 

That is all I have. 

Ms. SA ́ NCHEZ. Thank you, Mr. Iglesias. 

Mr. Charlton? 

TESTIMONY OF PAUL CHARLTON, FORMER UNITED STATES 

ATTORNEY FOR THE DISTRICT OF ARIZONA 

Mr. CHARLTON. Thank you, Madam Chair, Mr. Conyers, Ranking 

Member. 

I would like to address very briefly the idea that Mr. Moschella 

spoke about relating to the FBI’s taping policy, because there is in 

my mind no small amount of irony in the Department of Justice 

having chosen that as the reason for my having been asked to resign. 

I would underscore that I understand full well that I serve at the 

pleasure of the President and am grateful for having had that opportunity. But as that is one of the reasons they discussed, I wish 

to make these points. 

First, the United States attorney, unlike many United States attorneys in the country, in Arizona, is responsible for prosecuting 

violent crime offenses that take place in Indian country, on the Indian reservations, Arizona’s 21 Indian reservations, in fact the 

largest Indian reservation in the Nation, the Navaho Indian Reservation, is in Arizona. That means we are essentially the district 

attorneys for those tribes. We prosecute murders, kidnappings, 

rapes, child molestation cases. 

In child molestation cases in particular, because I am a career 

prosecutor before I had to leave in January. In child molestation 

cases in particular, the best evidence that you often receive are the 

words that come from the molesters’ mouths, because there is often 

times very little if any physical evidence of the molestation. 

Now, with that as a general umbrella, it is important to know 

that the FBI has a policy that discourages the taping or recording 

of confessions. In the District of Arizona, we have lost, we will lose 

45

and continue to lose cases, have pled down, will plead down and 

will continue to plead down child molestation cases so long as that 

policy is in place. 

It is the responsibility of the chief law enforcement officer in 

every district to ask law enforcement agencies to provide the best 

evidence so that you can go forward with a reasonable likelihood 

of success of a conviction. I exercised that discretion when in February of 2006 I asked all Federal law enforcement agencies to, 

where appropriate, obtain taped statements of any confessions that 

were made by suspects so that in particular in Indian country we 

could better do our job in prosecuting those cases. 

After having issued that letter and asking Federal law enforcement to implement that program, in March of 2006 I received a call 

from the deputy attorney general’s office telling me that the deputy 

attorney general and the director of the FBI were displeased with 

that letter and that they wanted me to revoke that policy. 

I indicated that I felt so strongly about this matter, I referred 

them to the fact that we were losing cases or pleading down cases 

because of the inability to obtain taped confession. I told them that 

I would resign before I would withdraw this pleading—before I 

would withdraw this program. 

The deputy attorney general’s office asked me not to resign over 

this issue, but instead to submit a request for a pilot program citing examples of cases that had been pled down or lost because of 

the FBI’s failure to tape confessions, and in March of 2006, I did 

so. I was promised by the deputy attorney general’s office that 

there would be an expeditious review of this matter and that it 

would be reviewed favorably. 

I left the job with the United States attorney on January 30, 

2007. I have not received anything from the Department of Justice 

with regards to my request regarding that pilot program. 

That is all I have, Madam Chairman. 

Ms. SA ́ NCHEZ. Thank you, Mr. Charlton. 

Mr. Cummins? 

TESTIMONY OF H.E. (BUD) CUMMINS, FORMER UNITED 

STATES ATTORNEY FOR THE EASTERN DISTRICT OF ARKANSAS 

Mr. CUMMINS. Thank you, Madam Chairman. 

I would just echo what has been said. It was an honor for me 

to serve as a United States attorney. I am very appreciative of the 

President for giving me—for entrusting me with that responsibility. 

I served purely at the pleasure of the President and they were entitled to take that job back any time they wanted, and I frankly was 

not entitled to carp about it, and I didn’t and neither did any of 

my colleagues up here. 

I would just try to remind everyone, I have a sense that there 

are people sitting in certain circles, which happen to be the team 

I think I am on, that are saying ‘‘don’t these guys know that they 

serve at the pleasure of the President? Why are they complaining?’’ 

And the fact is, we didn’t complain. I don’t believe any of us complained. 

This became a dispute between Congress and the Administration, and the first time I thought we were entitled to speak was 

46

when, frankly, it became horribly mismanaged in the way that they 

defended their actions to Congress, because the statements that 

were made were just not consistent with the facts in my case at 

first, and after they—and I will say the deputy attorney general 

straightened the facts out in my case. And I could have walked 

away and maybe still be in the inner circle of my team. 

But only at that point did I start becoming aware of the circumstances surrounding these other individuals, and because I was 

pretty intimately familiar with what had gone on and the history 

of the thing, I frankly was very uncomfortable that they were being 

mistreated and that the statements that were being made were 

being offered up to explain other motivations. 

And I didn’t think that was fair to them, because I know these 

people as former colleagues to be very good at what they do. That 

is not to say they had a stranglehold on their job or that they 

thought they would be there forever or that they were going to, you 

know, whine if somebody decided to make a change. But they are 

entitled to not have somebody offer up pretextual reasons, if that 

was what occurred. 

I don’t know the truth about why these decisions were made in 

their cases. But, frankly, the only reason I continue to be involved 

in this or outspoken at all is, you know, a great concern on my 

part, and I think many of you share it, that people are suggesting 

that these people were doing something wrong that they were 

never told about and that is why their jobs were taken away, and 

they probably don’t deserve to be treated like that. 

Ms. SA ́ NCHEZ. Thank you, Mr. Cummins. I appreciate your testimony. 

Mr. McKay? 

TESTIMONY OF JOHN McKAY, FORMER UNITED STATES 

ATTORNEY FOR THE WESTERN DISTRICT OF WASHINGTON 

Mr. MCKAY. Thank you, Madam Chair. 

I did not seek this forum when I was asked to resign. I did resign. I resigned quietly. I didn’t speak out publicly until the department came forward in sworn testimony and declared that my service and by inference the work of the men and women whom I led 

in Seattle and in Tacoma suffered from performance-related problems. I felt it was my duty then to step forward and to contest that 

and I appear here of course under subpoena, along with the rest 

of the individuals before you. 

It was my privilege to serve as United States attorney. And I 

know that others can serve in that role and that they will serve 

at the pleasure of the President. I am very pleased to hear the department change its views regarding my service and the work of 

the men and women in my office and to indicate that it is no longer 

a performance issue but a difference in policy. That is a change 

from prior position of the Department of Justice. 

What Mr. Moschella just testified to regarding information sharing, I would simply say this: all of my work on the program called 

LInX was fully authorized by the deputy attorney general of the 

United States in a memorandum dated April 2004. At that time, 

the deputy attorney general declared the Seattle Washington State 

LInX program to be the pilot project of the Department of Justice. 

47

That memorandum remained in force and effect past the time 

that I was ordered to resign. I was appointed to chair a group of 

15 United States attorneys. By then, chairman of the AGAC, the 

Attorney General’s Advisory Committee, Paul McNulty, he chose 

me to lead the information-sharing work of the United States attorneys. 

Deputy Attorney General McNulty, while serving as United 

States attorney in Virginia, himself led a LInX information-sharing 

system of which there were five growing to seven and which will 

I believe continue to grow. 

The EARS evaluation, Madam Chairman, that was referenced by 

Mr. Moschella, in fact all of them relate, I believe, to the leadership 

of the individual United States attorneys and to their fulfillment 

or nonfulfillment of Department of Justice priorities. 

I know that in my case, it indicated that my leadership was outstanding in every way that I am aware of in that report. 

Finally, as to LInX, the department did leave out the fact that 

in January of this year, I was awarded the Department of the 

Navy’s highest civilian award, the Distinguished Public Service 

Award for Innovation in Law Enforcement Leadership. That award 

was given to me because of the LInX program. 

Thank you very much. 

[The joint prepared statement of former United States Attorneys 

follows:]

JOINT PREPARED STATEMENT OF FORMER UNITED STATES ATTORNEYS

Good afternoon Madame Chair, and members of the subcommittee. My name is 

Carol Lam. Until recently, I was the United States Attorney for the Southern District of California. In the interest of conserving time, I will be making introductory 

remarks on behalf of all the former United States Attorneys before you on the panel 

today, with whom I had the great privilege of serving as a colleague, from the following districts: Bud Cummins, Eastern District of Arkansas; Paul Charlton, District of Arizona; Daniel Bogden, District of Nevada; David Iglesias, District of New 

Mexico; and John McKay,Western District of Washington. We thank the Committee 

and the Subcommittee for your courtesy in the manner in which we were subpoenaed to appear before you today, and will do our best to answer fully and completely 

any questions posed to us by Members. 

Each of us is very appreciative of the President and our home state Senators and 

Representatives who entrusted us five years ago with appointments as United 

States Attorneys. The men and women in the United States Attorney’s Offices in 

94 federal judicial districts throughout the country have the great distinction of representing the United States in criminal and civil cases in federal court. They are 

public servants who carry voluminous case loads and work tirelessly to protect the 

country from threats both foreign and domestic. It was our privilege to lead them 

and to serve with our fellow United States Attorneys around the country. 

As United States Attorneys, our job was to provide leadership in each of our districts, to coordinate federal law enforcement, and to support the work of Assistant 

United States Attorneys as they prosecuted a wide variety of criminals, including 

drug traffickers, violent offenders and white collar defendants. We did that with 

great success. As the first United States Attorneys appointed after the terrible 

events of September 11, 2001, we took seriously the commitment of the President 

and the Attorney General to lead our districts in the fight against terrorism. We 

not only prosecuted terrorism-related cases, but also led our law enforcement partners at the federal, state and local levels in preventing and disrupting potential terrorist attacks. We did that with great success. 

Like many of our United States Attorney colleagues across this country, we focused our efforts on international and interstate crime, including the investigation 

and prosecution of drug traffickers, human traffickers, violent criminals and organized crime figures. We also prosecuted, among others, fraudulent corporations and 

their executives, criminal aliens, alien smugglers, tax cheats, computer hackers, and 

child pornographers. 

48

Every United States Attorney knows that he or she is a political appointee, but 

also recognizes the importance of supporting and defending the Constitution in a 

fair and impartial manner that is devoid of politics. Prosecutorial discretion is an 

important part of a United States Attorney’s responsibilities. The prosecution of individual cases must be based on justice, fairness, and compassion—not political ideology or partisan politics. We believed that the public we served and protected deserved nothing less. 

Toward that end, we also believed that within the many prosecutorial priorities 

established by the Department of Justice, we had the obligation to pursue those priorities by deploying our office resources in the manner that best and most efficiently 

addressed the needs of our districts. As Presidential appointees in particular geographic districts, it was our responsibility to inform the Department of Justice about 

the unique characteristics of our districts. All of us were longtime, if not lifelong, 

residents of the districts in which we served. Some of us had many years of experience as Assistant U.S. Attorneys, and each of us knew the histories of our courts, 

our agencies, and our offices. We viewed it as a part of our duties to engage in discussion about these priorities with our colleagues and superiors at the Justice Department. When we had new ideas or differing opinions, we assumed that such 

thoughts would always be welcomed by the Department and could be freely and 

openly debated within the halls of that great institution. 

Recently, each of us was asked by Department of Justice officials to resign our 

posts. Each of us was fully aware that we served at the pleasure of the President, 

and that we could be removed for any or no reason. In most of our cases, we were 

given little or no information about the reason for the request for our resignations. 

This hearing is not a forum to engage in speculation, and we decline to speculate 

about the reasons. We have every confidence that the excellent career attorneys in 

our offices will continue to serve as aggressive, independent advocates of the best 

interests of the people of the United States. We continue to be grateful for having 

had the opportunity to serve and to have represented the United States during challenging and difficult times for our country. 

While the members of this panel all agree with the views I have just expressed, 

we will be responding individually to the Committee’s questions, and those answers 

will be based on our own individual situations and circumstances. 

The members of the panel regret the circumstances that have brought us here to 

testify today. We hope those circumstances do not in any way call into question the 

good work of the United States Attorneys Offices we led and the independence of 

the career prosecutors who staff them. And while it is never easy to leave a position 

one cares deeply about, we leave with no regrets, because we served well and upheld 

the best traditions of the Department of Justice. 

We welcome the questions of the Chair and Members of the Committee. Thank 

you.

Daniel Bogden, Las Vegas, Nevada

David Iglesias, Albuquerque, New Mexico

Paul Charlton, Phoenix, Arizona

Carol Lam, San Diego, California

Bud Cummins, Little Rock, Arizona

John McKay, Seattle, Washington

Ms. SA ́ NCHEZ. Thank you, Mr. McKay. 

I have been advised that we have votes coming up on the House 

floor shortly. There will be two votes. We will begin the questioning—I will begin by recognizing myself first. But when in fact 

they do call votes, we will have to stop and take a short recess 

until Members reconvene and as quickly as we can get Members 

to return, we will continue. 

I would like to begin by recognizing myself for questioning. 

Mr. Iglesias, can you tell me briefly how you came to leave your 

position as a U.S. attorney? 

Mr. IGLESIAS. How much time do I have to answer that question? 

Ms. SA ́ NCHEZ. We have got about 5 minutes, sir. You are going 

to have to be very brief. 

Mr. IGLESIAS. Succinctly, until today I didn’t know what the official reason was. 

49

On the 7th of December last year, I was doing some Navy duty 

for a couple of days in Newport, Rhode Island. I was flying back. 

I took a call from Mike Battle, the director of the executive office. 

I hadn’t talked to Mike for a while and wondered why he was calling. I figured it would be a very good call or a very bad call. And 

my instincts were correct. 

He told me that the Administration wanted to go a different way 

and I was expected to tender my resignation by the end of January, 

and I said, ‘‘Mike,’’ because I considered Mike to be a friend, I still 

do. He is a decent guy. I said, ‘‘What is going on here? I have received absolutely no warning there was a problem. Is there a problem? What is going on?’’

He goes, ‘‘Look, Dave, I don’t think I want to know. All I know 

is this came from on high.’’

So I was stunned and I told him that I would probably have to 

ask for some more time. In fact, I asked Deputy Attorney General 

McNulty for a 1-month extension until I could find another job and 

he granted that request. 

Ms. SA ́ NCHEZ. I am just going to interrupt you and jump in 

quickly, because I would like to move along in the testimony. 

You have been quoted in the newspapers as expressing concern 

that your termination was political and that you were appalled by 

two phone calls you received from Members of Congress a few 

months before your dismissal. Can you briefly summarize for us 

those concerns? 

Mr. IGLESIAS. Yes, ma’am. 

On or about the 16th of October, while I was in Washington, 

D.C., on DOJ business, I received a call from Congresswoman 

Heather Wilson from New Mexico. I called her right back and she 

said she had heard lots about sealed indictments and she says, 

‘‘What can you tell me about these sealed indictments?’’

Well, asking a Federal prosecutor about sealed indictments is 

like asking a research physicist about nuclear drop codes or launch 

codes. It is verboten. So I did not answer her question. I was evasive, nonresponsive, and I told her we sometimes did it for juvenile 

cases or national security cases and I could tell that she was disappointed by my answer. And she says, ‘‘Well, I guess I will have 

to take your word for it.’’

Approximately 2 weeks later I received a call at home from Senator Pete Domenici. I had never received a call from Senator 

Domenici at home while I was a United States attorney. Initially 

it was his chief of staff, Steve Bell, who said, ‘‘Hey, Dave, the senator wants to talk to you. You know, we are receiving some complaints about you.’’

And I said, ‘‘Oh, okay.’’ And he goes, ‘‘Will you talk to the Senator?’’ I said, ‘‘Absolutely.’’

He handed the phone over to the senator and Senator Domenici 

wanted to talk to me about these corruption matters, corruption 

cases. These were widely reported in the local media. And he wanted to know if they would be filed before November. And I gave an 

answer to the effect I didn’t think so. And he said, ‘‘Well, I am very 

sorry to hear that,’’ and the line went dead. The telephone line 

went dead. 

50

So I thought to myself, did he just hang up on me? He didn’t call 

back, I didn’t call back, but I had a sick feeling in the pit of my 

stomach that something very bad had just happened. And within 

6 weeks, I got the phone call from Mike Battle indicating that it 

was time for me to move on. 

Ms. SA ́ NCHEZ. Why do you believe that the November deadline 

was important? What was your sense after receiving those two 

phone calls? What caused that sick feeling in the pit of your stomach? 

Mr. IGLESIAS. My sense was that they expected me to take action 

on these widely reported corruption matters and I needed to do it 

immediately. 

The public corruption—you have to understand that my office 

has successfully completed the most—the biggest corruption case in 

New Mexico history. We successfully convicted two State treasurers 

and a couple of other guys for public corruption. That retrial had 

ended in September, and the State was full of rumors that there 

were more pending matters and it became the focus of the attack 

ads from both Patricia Madrid, who was challenging Congresswoman Heather Wilson. 

I knew anything I said publicly could be used in an attack ad. 

I distinctly remembered John Ashcroft sitting me in his office in 

2001 and saying, ‘‘When you come to the Justice Department, politics stay at the front door. You do not engage in politics, David.’’

I said, ‘‘Yes, sir.’’

So after I got those two phone calls, one asking about sealed indictments, the other asking if I was going to file anything before 

November, and the unprecedented nature of getting those phone 

calls, I had the distinct impression that I was to take action before 

November. 

Ms. SA ́ NCHEZ. Thank you. 

Mr. Iglesias, just this past weekend, Senator Domenici sent out 

a press conference claiming that he had complained about the U.S. 

attorney’s office performance, particularly on immigration issues. 

What is your response to that, briefly? 

Mr. IGLESIAS. That is news to me. I had never heard from the 

Justice Department of any complaints by any Member of Congress. 

Ms. SA ́ NCHEZ. Thank you. 

I now would like to recognize the gentleman from Utah, Mr. Cannon, for 5 minutes. 

Mr. CANNON. Thank you, Madam Chair. 

Ms. Lam, I would like to let you know I watched your testimony 

in the Senate. I think you are very bright and very tough. I asked 

a number of questions to Mr. Moschella about your work, largely 

just to point out the differences between you. I don’t think there 

is any question but that there are differences. How those sort of 

sort themselves out on a national level is something else. 

But I just wanted to let you know that those are not questions 

to hurt your character or your reputation, which I think you have 

much enhanced in this process, although I did find it interesting 

that you pointed out in your testimony here that you decline to 

speculate as to the reason you—and the other U.S. attorneys declined to speculate as to the reasons for dismissal. And yet it seems 

to me that we have just heard Mr. Iglesias speculate, pardon me, 

51

ad nauseam, about what he guesses are the reasons for his dismissal. 

Let me read to all of you a statement from the U.S. attorney’s 

manual. All of this comes out of section 1 8.010. ‘‘All congressional 

staff or Member contacts with the USAO’s, including letters, phone 

calls or visits of any other means, must be reported promptly to the 

United States attorney. 

Ms. Lam, did you report the letters that you received from Representative Issa and Senator Feinstein? 

Ms. LAM. Well, in fact I think those letters actually were not directed to me in particular, but actually to the attorney general. 

And Senator Feinstein, I may have received a copy of one. But 

there may have been one letter early on that came to me and I did 

convey that to the department. 

Mr. CANNON. And Mr. McKay, did you report on your conversations with Mr. Hastings’s staff? 

Mr. MCKAY. Yes, I will. I received a telephone call from. 

Mr. CANNON. No, no, no. Did you report that conversation with 

Congressman Hastings’s staff? Did you report that to the U.S. attorney general’s office? 

Mr. MCKAY. To the main Justice? No, I did not. 

Mr. CANNON. Why not? Not important? 

Mr. MCKAY. No, it was important, but I called in my first assistant and criminal chief and reviewed the telephone call from Congressman Hastings’s chief of staff to me following the 2004 governor’s election. And we all three concluded that I had stopped the 

caller from crossing the line into lobbying or attempting to influence me. 

Mr. CANNON. So in other words, you mean you kept him from 

going across the boundary which would have made it important 

enough to report? 

Mr. MCKAY. That was our conclusion, yes. 

Mr. CANNON. Mr. Iglesias, did you report the contacts from Ms. 

Wilson or Mr. Domenici? 

Mr. IGLESIAS. No, sir. 

Mr. CANNON. Why not? Were they also unimportant, like Mr. 

McKay has just pointed out? 

Mr. IGLESIAS. They were very important. They were very important to my career. Mr. Domenici was a mentor and a friend. Heather Wilson was a friend. I campaigned with her in 1998. I felt terribly conflicted about having to report it. I eventually did. 

Mr. CANNON. When? 

Mr. IGLESIAS. In late February I reported it. Not to the Justice 

Department, but I made—I started talking to the media about 

being contacted by two Members of Congress. 

Mr. CANNON. Oh, wait a minute. No, no. You started talking to 

the media and you call that reporting? 

Mr. IGLESIAS. No, sir. That is what you just said. 

Mr. CANNON. What did you say? You said that you reported it 

later. When did you report it? 

Mr. IGLESIAS. I did not report it to the Justice Department. 

Mr. CANNON. But you said earlier that you reported it——

Mr. IGLESIAS. To the media. 

52

Mr. CANNON. You mean you reported it to the media, meaning 

you used that as your mechanism for communicating with the Department of Justice? 

Mr. IGLESIAS. That is correct. 

Mr. CANNON. Is that appropriate? 

Mr. IGLESIAS. I think that is your job, sir. 

Mr. CANNON. No, no, no. You were a U.S. attorney. Was that an 

appropriate action? 

Mr. IGLESIAS. Not anymore. 

Mr. CANNON. You are not a U.S. attorney anymore. 

Mr. IGLESIAS. I am a private citizen, sir. 

Mr. CANNON. Were you a U.S. attorney when you announced 

that? When you went to the press? 

Mr. IGLESIAS. No, sir. I said two Members of Congress. I did not 

identify them until, in public, today. 

Mr. CANNON. Were you a U.S. attorney when you said you had 

been contacted? 

Mr. IGLESIAS. Yes, sir. I was. 

Mr. CANNON. Did you in that press conference talk about upcoming or public corruption actions that would be coming soon? 

Mr. IGLESIAS. My last press conference was my last day on the 

job as a United States attorney and there were questions about 

pending corruption matters. I indicated that I expected there to be 

a public comment sometime soon. 

Mr. CANNON. Indicating that the public corruption case would be 

handed down? 

Mr. IGLESIAS. I can’t speculate as to what the local media 

thought about the comments. 

Mr. CANNON. Well, it got reported. The local media said, ‘‘As the 

investigation of the kickback scheme reportedly involving construction of Albuquerque’s Metro Court and several other buildings, a 

corruption case rumored to dwarf the Vigil and Montoya cases, 

Iglesias said he expected indictments to come up ‘‘very soon.’’

‘‘But as he prepared for a news conference today in which he is 

expected to focus on a defense of his tenure, Iglesias said those indictments would not come under his watch.’’

Did you make those two comments? 

Ms. SA ́ NCHEZ. The time of the gentleman has expired. 

Mr. CANNON. Madam Chair, I know we are going to votes, but 

are we going to have another set of questions, or at least maybe 

a couple of sets? 

Ms. SA ́ NCHEZ. We may have a second round of questions. 

Mr. CANNON. I think the rule allows me 5 minutes for each witness, so I will just waive that. 

Ms. SA ́ NCHEZ. Why don’t you go ahead and answer the last question and after that answer, we will take a short recess in order for 

Members to walk across the Capitol to vote. 

Mr. CANNON. And that question was, did you say those things 

that I have quoted to you to the press. 

Mr. IGLESIAS. I don’t recall using the word indictment. I did say 

that there would be some public announcements as to the questions 

involving the alleged corruption matters. 

And by the way it is Vigil, not Vigil. It is Vigil. 

Ms. SA ́ NCHEZ. Okay. Thank you. 

53

The Committee will stand in recess while Members go to the 

Capitol to vote. As soon as we can get Members to return here after 

the last vote, we will reconvene the hearing. 

[Recess.] 

Ms. SA ́ NCHEZ. The Subcommittee will be called to order. 

Before we left for votes, we had begun the first round of questioning. I believe Mr. Cannon from Utah had finished his questioning. 

And I will now recognize the gentleman from Michigan, Mr. Conyers, for 5 minutes. 

Mr. CONYERS. Thank you, Madam Subcommittee Chair. 

I would like to turn to Mr. McKay for just a moment. 

Mr. John McKay, I have been impressed listening to you today 

and this morning, as a steadfast and professional lawyer. Do you 

know of anything in your performance as U.S. attorney or were you 

advised of anything in your performance that would justify a performance-related termination? 

Mr. MCKAY. No, Mr. Chairman. 

Mr. CONYERS. And, of course, it goes without saying that, if nobody was told why they were being discharged to begin with, that 

leaves you totally up in the air. This is a colossal admission of maladministration on the part of the Department of Justice and just 

happening not to tell anybody why they were being terminated, because you serve at the President’s pleasure. That is quite inadequate to me. 

In fact, the New York Times reported on March 1st of this year 

that you received, Mr. McKay, a positive performance evaluation 

just 1 year ago, in which you were found to be an effective, wellregarded, and capable leader. Is that essentially what that article 

said? 

Mr. MCKAY. I believe that is correct, Mr. Chairman. I did receive, I think, the final evaluation, which are called EARS evaluations for our office, was finished on September 22nd of 2006. 

Mr. CONYERS. Now, referring to Mr. Moschella’s stated reason for 

your dismissal, I understand that you were praised by the FBI special agent-in-charge, Laura Laughlin, for your work in promoting 

information-sharing, and called it one of your greatest contributions to law enforcement. 

Do you remember that? And is it correct? 

Mr. MCKAY. I do, and it is correct. 

Mr. CONYERS. In addition, sir, I understand that the chief judge 

in your district, the Honorable Chief Judge Robert Lasnik, stated, 

‘‘This is unanimous among the judges: John McKay was a superb 

U.S. attorney. And for the Justice Department to suggest otherwise 

is just not fair. By every measure, the performance of his office improved during his tenure.’’

Had you been aware of those comments made about you? 

Mr. MCKAY. I read them in the paper, Mr. Chairman, and I was 

grateful on behalf of the hard-working men and women of my office 

who really earned those accolades. 

Mr. CONYERS. Now, particularly in light of the absence of any 

other reasonable explanation for your termination, I was disturbed 

by a report from the Seattle Times, dated February 16, 2000, which 

I will ask unanimous consent to enter into the record at this time. 

54

Ms. SA ́ NCHEZ. Without objection, so ordered. 

Mr. CONYERS. The report states, in part, ‘‘One of the most persistent rumors in Seattle legal circles is that the Justice Department forced McKay, a Republican, to resign to appease Washington 

State Republicans angry over the 2004 governor’s race. Some believe McKay’s dismissal was retribution for his failure to convene 

a Federal grand jury to investigate allegations of vote fraud in the 

race.’’

Now, is it correct that it was your determination, in your office, 

not to convene such a grand jury? 

Mr. MCKAY. Yes, that is correct. 

Mr. CONYERS. And what do you make of the Seattle Times story 

itself, in general? 

Mr. MCKAY. Well, I would say, Mr. Chairman, that it is very true 

that the controversy surrounding the 2004 governor’s election was 

one that had a lot of public debate. I was aware that I was receiving criticism for not proceeding with a criminal investigation. And, 

frankly, it didn’t matter to me what people thought. Like my colleagues, we work on evidence, and there was no evidence of voter 

fraud or election fraud. And, therefore, we took nothing to the 

grand jury. 

Mr. CONYERS. Thank you. This article went on to report that 

there were some in Washington State who were upset about that, 

including a lobbyist for the Building Industry Association of Washington, who said that he had urged President Bush to fire you as 

a result. 

I understand that, earlier today, you testified in the Senate 

about a call that you received from someone on behalf of a Congressman concerning the 2004 governor’s race. Who was that call 

from? 

Mr. MCKAY. That call was from the then-chief of staff of U.S. 

Representative Doc Hastings, Ed Cassidy. 

Mr. CONYERS. Please explain when that call was made to you 

and what transpired during the call, please. 

Mr. MCKAY. Mr. Chairman, I received a telephone call in the 

weeks following the 2004 governor’s election. It would have been in 

late 2004, early 2005. He telephoned me and asked for information 

about any action that my office was taking on the election, again, 

a very controversial matter. 

I related to him the information that was publicly available at 

the time, which was that the Seattle division of the Federal Bureau 

of Investigation was taking any information that any citizen had 

about election fraud or election crime and, in fact, that my office, 

in consultation with the voting rights section, had done the same, 

so that anyone with information should report it to the bureau. 

That was all I told him, and he then began to advance the conversation, and I cut him off. 

Ms. SA ́ NCHEZ. The time of the gentleman has expired. 

Mr. CONYERS. Thank you for your testimony. 

Ms. SA ́ NCHEZ. Thank you, Mr. Conyers. 

The Chair now recognizes the gentleman from Ohio, Mr. Jordan, 

for 5 minutes. 

Mr. JORDAN. Thank you. Thank you, Madam Chair. 

55

I want to direct my comments to Mr. McKay, who was just 

speaking. In the testimony that Ms. Lam read for all of you, she 

indicated that, you know, everyone understands you serve at the 

discretion of the President, his pleasure, that you can be removed 

for any reason. 

Of course, it would have been nice if you would have been given 

a reason. I think Mr. Moschella’s point was well-taken. When you 

think about how this was done, it could have certainly been handled better, and I do sympathize with you in that regard. 

Nevertheless, there were reasons given by the department and, 

in your case, specifically, too, I think they talked about sentencing 

guidelines and policy differences. 

I am just going to, in respect of the time we have, focus on the 

policy differences, because tell me if I am right. And maybe this is 

me reading too much into it, but it seems to me this scenario was 

something like this. You had an idea that you thought made sense. 

The folks at the main office didn’t maybe—weren’t as enthused 

about it, maybe the way to say it. And you advocated strongly for 

it, maybe even after they said that, you know, this was not a direction we were going to go. 

I can respect that; I think my time in the general assembly in 

Ohio, the governor of my same party and I differed on policy decisions all the time. I can remember specifically having him yell at 

me on the phone and hang up. Of course, the main difference is, 

the governor can’t get—he can’t get rid of me. Thank goodness. He 

would have if he could have, but he couldn’t. 

So I understand the situation. I appreciate people who advocate 

strongly for what they believe in. But is that a fair assessment of 

what took place in the policy differences reason that was given by 

the department for your being not—or for you being let go? 

Mr. MCKAY. Well, let me say, I never asked for an explanation——

Mr. JORDAN. I understand. 

Mr. MCKAY [continuing]. Of anyone from the Department of Justice. I came forward only when it was stated that there were performance issues in my office, which is now apparently not the position of the Department of Justice. 

On the issue of information-sharing, I was the chairman of the 

information-sharing committee of the United States attorneys. It 

was my job to speak out on information-sharing. And I did that. 

And, no, I was never advised that the Department of Justice 

wanted to go in a different direction until they told me that I was 

going in a different direction. 

Mr. JORDAN. Not at all? 

Mr. MCKAY. Not at all. 

Mr. JORDAN. Specifically with this, what is it called, this particular system, called the—did you call it the LInX system? I don’t 

remember. 

Mr. MCKAY. Yes, Law Enforcement Information Exchange, which 

was a Department of Justice-sanctioned pilot program in Washington State, of which I was the leader. 

Mr. JORDAN. Is that system still in place? Is it being used by the 

Department of Justice in certain jurisdictions around the country? 

56

Mr. MCKAY. It is being used at 160 police agencies in the State 

of Washington. 

Mr. JORDAN. Relative to the U.S. attorney’s district, is it being 

used——

Mr. MCKAY. Yes, sir. 

Mr. JORDAN. In how many of the 93 districts is it being used? 

Mr. MCKAY. I believe in five locations the pilot programs are still 

running, and it is being expanded to, I believe, seven, one in the 

Washington capital region, and one in the Los Angeles area. 

Mr. JORDAN. Well, then explain to me then why the department 

felt you were too—I mean, I guess I am not seeing the connection 

there. 

Mr. MCKAY. Well, I wouldn’t try to speculate on the connection, 

and I think you should ask the Department of Justice, because 

they never explained it to me, Congressman, and I am just being 

forthright about that. 

Mr. JORDAN. Talk to me, then, about the second one, the sentencing guidelines. You were not meeting those criteria that the department had specified that you needed to—you know, goals that 

you needed to get to. 

Mr. MCKAY. Thank you. You know, it is very interesting now, 

today, for the first time, hearing that their differences with me 

were policy reasons, but I would say, even as to policy reasons, one 

would expect that they would have raised that policy issue with me 

or my office. And this is the first time I have heard from anyone 

at the Department of Justice about issues regarding about 

sentencings and sentencing ranges. 

I would point out, Congressman, that what they are referring to 

is sentences imposed by United States district judges, which fall inside or outside of the sentencing ranges. That has nothing to do 

with the policy positions of my office. Those are sentences imposed 

by judges in the Western District of Washington. 

They had no differences with me, to my knowledge, on cases 

brought, the types of indictments brought by my office. In fact, I 

think the conclusion of their own evaluation team was exactly the 

opposite. 

Mr. JORDAN. And how many of those decisions that you referenced did you appeal? 

Mr. MCKAY. Congressman, we are only allowed to appeal with 

the approval of the Justice Department, and I couldn’t tell you the 

number that were appealed, but all appeals are approved by the solicitor general at Main Justice, not by our offices. 

Ms. SA ́ NCHEZ. The time of the gentleman has expired. 

The Chair now recognizes the gentleman from Georgia, Mr. 

Johnson, for 5 minutes. 

Mr. JOHNSON. Thank you, Madam Chair. 

Ms. Lam, when Mr. Moschella testified, he stated that there 

were three ways that equated to performance issues with U.S. attorneys that underlied their resignation request, and those were 

policy priorities and management. And he said, for you, that you 

failed in terms of your priorities. 

Specifically, he said, on immigration prosecutions, you come from 

a border district, and your numbers, in his words, don’t stack up. 

And your office came in 91 out of 93 districts, but isn’t it a fact 

57

that, during the last 2 months that data was available, which 

would be June and July of 2006, that the Southern California judicial district ranks second in the number of immigration prosecutions? Isn’t that a fact? 

Ms. LAM. I think that may be true, and that may be referring 

particularly to alien smuggling offenses. And we have to distinguish between criminal aliens and alien smuggling. 

Mr. JOHNSON. And isn’t it a fact that, in 2005, 97.7 percent of 

the immigration cases referred to the Southern California U.S. attorney’s office were prosecuted? 

Ms. LAM. I couldn’t tell you the figure. I am sorry. 

Mr. JOHNSON. Well, those are the figures that I have here, and 

I don’t think that there is any problem with the veracity of those 

figures. 

And he also cited that your priorities as to violent crime—he 

mentioned the anti-gun program and said that your prosecutions 

were at the bottom of the list. But isn’t it a fact that, in 2004, the 

last year that available data is available to us, that your office 

ranked ninth out of 94 judicial districts in the country in the percentage of ATF cases referred that were prosecuted? 

Ms. LAM. Again, I am not familiar with those particular statistics. I am sorry, Congressman, but I will say this: My concern was 

making sure that gun prosecutions in the Southern District of California were being handled responsibly. 

Project Safe Neighborhood is an important initiative. It was 

being handled responsibly, because it is a Federal and State initiative. And the gun prosecutions in our district were being handled 

extremely responsibly by the D.A.’s office. There was only one 

D.A.’s office in San Diego County, and they were handling those 

gun prosecutions very, very well. There were no complaints from 

State and local officials. 

Mr. JOHNSON. Okay, thank you. And now your office has been involved and gained notoriety, did it not, in the prosecution of former 

Congressman Randy ‘‘Duke’’ Cunningham? 

Ms. LAM. Yes, sir. 

Mr. JOHNSON. And he entered a plea of guilty and received a sentence equating to about 8 years——

Ms. LAM. That is correct. 

Mr. JOHNSON [continuing]. If I recall correctly, and then there 

was an ongoing investigation related to that corruption probe, is 

that correct? 

Ms. LAM. That is correct. 

Mr. JOHNSON. Do you surmise that your forced resignation would 

have anything to do with that investigation? 

Ms. LAM. Well, as I indicated in my opening statement, I am not 

here to surmise, Congressman. 

Mr. JOHNSON. Well, thank you. I appreciate your professionalism, 

and I guess it is up for someone up here on this panel to make the 

summarizations of what may have occurred. 

But the same thing seems to have happened, Mr. Charlton, in 

your situation, where they said Mr.—the gentleman who testified, 

Mr. Moschella, said that you fell down, in terms of policy. 

And he mentioned specifically the taping of the FBI interviews, 

and he said that that seemed to go against DOJ policy. And I guess 

58

he didn’t understand exactly why you felt like you needed taped 

interviews of confessions and admissions from suspects in child molestation, as well as other cases, so that you could help create a 

better track record, as far as your successful prosecutions go. 

But yet, at the same time, it appears that you were involved in 

a public corruption investigation, as well, having to do with an investigation of Congressman Rick Renzi of Arizona. Is that correct? 

Mr. CHARLTON. Congressman Johnson, were I still the United 

States attorney, my response would be, it is our policy to neither 

confirm nor deny where there is an ongoing investigation of any individual. And I think, with all due respect and intended respect, 

it is probably the most appropriate thing for me to do, is to respond 

in the same way to that question, sir. 

Mr. JOHNSON. Well, let me just——

Ms. SA ́ NCHEZ. The time of the gentleman has expired. 

Mr. JOHNSON. Thank you. 

Ms. SA ́ NCHEZ. Thank you. 

The Chair now recognizes Mr. Keller, the gentleman from Florida, for 5 minutes. 

Mr. KELLER. Thank you, Madam Chairwoman. 

And, Ms. Lam, let me ask you a few questions. You are a Bush 

appointee? 

Ms. LAM. Yes, sir. 

Mr. KELLER. And did you serve out your full 4-year term of your 

appointment as U.S. attorney? 

Ms. LAM. Yes, sir, the first 4-year term, yes. 

Mr. KELLER. And you serve at the pleasure of the President, and 

you can be removed for any reason or no reason at all, is that correct? 

Ms. LAM. Yes, sir. 

Mr. KELLER. Okay. Do you have any evidence whatsoever that 

your role in prosecuting Duke Cunningham is the reason you were 

asked to resign? 

Ms. LAM. I was not looking for evidence; I don’t have any indication one way or the other. 

Mr. KELLER. I know you weren’t looking for it, but do you have 

any evidence, that you have at all, that you were asked to resign——

Ms. LAM. No, sir. 

Mr. KELLER. Okay. 

Well, let me just say a few things, and I want to be fair to you. 

And your office is to be commended for successfully prosecuting 

that case. And you and the career prosecutors deserve a lot of credit for your work. If you never did anything the rest of your life, you 

will go down in the books as having a monumental achievement. 

Did the Department of Justice headquarters ever discourage you 

from bringing the case against Congressman Cunningham? 

Ms. LAM. No. 

Mr. KELLER. In fact, didn’t the Department of Justice assist your 

office in trying to attain documents from Congress in the 

Cunningham case? 

Ms. LAM. In the Cunningham case? I am not sure if that was 

true in the Cunningham case. It could be; I am not sure. 

59

Mr. KELLER. Okay. Now, in your testimony, you said you were 

given little or no information about the reason for the request for 

your resignation. Is that right? 

Ms. LAM. That is correct. 

Mr. KELLER. And I assume you got the same call that the others 

have referenced on December the 7th of 2006 from Mike Battle, 

telling you that you are going to be asked to resign? 

Ms. LAM. Yes. 

Mr. KELLER. And at that time, he gave you no reasons? 

Ms. LAM. That is right. 

Mr. KELLER. Okay. Did you ask him for any reasons? 

Ms. LAM. Yes. 

Mr. KELLER. And what did he say? 

Ms. LAM. He said, ‘‘I don’t know.’’

Mr. KELLER. Thank you. 

You heard earlier from Mr. Moschella that he believes the Department of Justice talked to you regarding concerns that they had 

relating to the prosecution for gun crimes. Did you recall ever 

speaking to anyone from the Department of Justice regarding any 

concerns they had relating to your prosecutions for gun-related 

crimes? 

Ms. LAM. I spoke to Jim Comey when he came out to visit our 

office, I believe in 2003. It may have been 2004, but I think it was 

2003. 

Mr. KELLER. Okay. Did you ever have any conversations with 

anyone from the Department of Justice regarding any concerns 

that they may have had relating to the need to have more prosecutions for alien smuggling? 

Ms. LAM. I had a conversation with the other southwest border 

U.S. attorneys and the current deputy attorney general about our 

need for more resources to prosecute immigration along the border. 

Mr. KELLER. Okay. Were you, in fact, aware prior to being asked 

to resign that Border Patrol agents, and Members of Congress from 

both parties, and the attorney general himself had raised concerns 

that, in their opinion, you weren’t doing enough to prosecute alien 

smugglers? 

Ms. LAM. I did not hear from the Department of Justice about 

the testimony you referenced today from the attorney general. I 

knew that there were concerns by the Border Patrol union, although I was in constant contact with Border Patrol management, 

which disagreed in large part with the union’s position. 

Mr. KELLER. Okay. You recall back in February 2nd of 2004 receiving a letter from Darrell Issa to you, concerning the need to 

prosecute more alien smugglers, particularly someone named Antonio Amparo-Lopez? 

Ms. LAM. Yes. 

Mr. KELLER. And then you replied to him a month later, on 

March 15, 2004, essentially saying that you have referred this matter to the Department of Justice? 

Ms. LAM. That is our requirement, yes. 

Mr. KELLER. Okay. Were you aware back in September 23 of 

2005 that 19 Members of Congress had sent a letter to President 

Bush regarding concerns they had relating to the need for more 

prosecutions in your area of alien smugglers? 

60

Ms. LAM. I was aware of that letter, yes. 

Mr. KELLER. Okay. I think you briefly mentioned this, but when 

I went to San Diego in January of 2006, I talked to Border Patrol 

agents who were concerned about the need for more prosecutions. 

And I brought that up with Attorney General Gonzales. You have 

already had my question and answer to him. 

Is your testimony that, after that hearing, when he gave that, 

nobody from DOJ followed up with you to talk about the need to 

step it up, in terms of prosecuting more? 

Ms. LAM. No. 

Mr. KELLER. Okay. One final thing, some folks on the other side 

have suggested that maybe you should be appointed as outside 

counsel to help with Cunningham-related cases or other corruption 

probe cases. And I understand you already have a pretty good job 

in the private sector. Are you seeking to be outside counsel for 

those cases? 

Ms. LAM. No, that request was made without my knowledge and 

without consultation with me. 

Ms. SA ́ NCHEZ. The time of the gentleman has expired. 

Mr. KELLER. Thank you. 

Ms. SA ́ NCHEZ. The Chair now recognizes the gentlewoman from 

California, Ms. Lofgren, for 5 minutes. 

Ms. LOFGREN. Thank you, Madam Chair. 

And before going into my questions, I would like to ask unanimous consent to insert in the record a letter from Senator Dianne 

Feinstein to the attorney general, along with the response that she 

received from Will Moschella, on behalf of the Department of Justice. 

Ms. SA ́ NCHEZ. Without objection, so ordered. 

[The material referred to follows:]

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Ms. LOFGREN [continuing]. Several people here today. 

Ms. Lam, Mr. Moschella and, earlier this week, the Department 

of Justice told Members that it was the low numbers of immigration and gun cases that really was the cause of your need to be replaced and that you should address the President’s priorities. 

Were you specifically ever told what was expected of you, what 

the priorities of the President were? 

Ms. LAM. I certainly knew what the priorities were. I was never 

specifically told that if I was not enforcing them it would cost me 

my job, no. 

Ms. LOFGREN. So no one ever came and said, ‘‘You need to do X, 

Y and Z, in terms of prosecution, or else we have got a big problem 

here’’? 

Ms. LAM. No. 

Ms. LOFGREN. And not about the immigration question, either? 

Ms. LAM. The immigration question—I have never made any secret of this, that, given the high numbers on the border, that my 

view is the way to tackle them—we can best tackle the problem is 

to attack the problem at its root, as close to the root as we can get, 

and that is going to be bigger prosecutions that are going to take 

more resources and result in lower filings. 

Ms. LOFGREN. Let me ask you this. It has been referenced, the 

letter sent by our colleague, Congressman Issa, along with thenRepresentative Cunningham and 12 other Republican members of 

the California delegation to the attorney general, then Ashcroft, 

asking him to require, as I understand it, a zero-tolerance stance 

against smuggling and a prosecution in every case. 

Did the attorney general implement such a policy in response to 

that letter? 

Ms. LAM. No. 

Ms. LOFGREN. If he had implemented a policy such as that, did 

your office have the resources to actually implement such a policy? 

Ms. LAM. It would be impossible. There are more than 180,000 

people arrested on the California border with Mexico every year. I 

know in Phoenix, it is almost 600,000 people. I don’t think any office in the country has ever prosecuted more than 5,000 or 6,000 

felonies a year. 

Ms. LOFGREN. No, prosecutors, like everyone in Government, 

have to make decisions about resource allocations. We all do, and 

we don’t have limitless resources. Since immigration is a focus of 

the department’s criticism of you today, can you explain to us how 

you went about prioritizing your immigration-related prosecutions 

in your district? 

What were you trying to achieve? Who did you prosecute? Why 

did you take the approach? 

Ms. LAM. Absolutely. When I first arrived in the office in 2002 

as the United States attorney, I noted that our filings were very 

high. However, a large percentage of our filings were being brought 

against low-level defendants, such as nannies who were returning 

to the country after going home for the weekend in Mexico and presenting false documents at the border. 

These people were being prosecuted as felons and then given 

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smugglers. It was a judicial revolving door, but no U.S. attorney 

wanted to be known as the U.S. attorney who lowered filings. 

The result was, the office was not able to handle any higher-level 

investigations and prosecutions. So I made the decision that an adjustment had to occur. We studied the problems very, very closely. 

It took a couple of years to implement. We are now seeing the 

fruits of it. 

And the letter you have just entered into the record, ma’am, was 

authored by Will Moschella, only 3 months before I received a 

phone call on December 7, to Senator Feinstein, defending our approach of seeking longer sentences against the worst offenders on 

the border. 

I think it is a legitimate, valid approach and one that I had every 

indication that the department was supporting. 

Ms. LOFGREN. I am just about out of time. So the department—

you saw the letter drafted by Mr. Moschella to Senator Feinstein, 

essentially endorsing the approach you were taking. And did you 

ever hear contrary to that letter, that he didn’t agree with the process you have just outlined? 

Ms. LAM. No, ma’am. 

Ms. LOFGREN. Has the department ever indicated concern to you 

that your district was suffering a higher crime rate than others 

and that your office and your prosecution policies were deficient? 

Ms. LAM. Congresswoman, in fact, in December of 2006, the department sent a team of people out to study why the city of San 

Diego had the lowest violent crime rate in 25 years. They had met 

with me, and with the police chief, and with the sheriff, and had 

a very good meeting, trying to figure out why we had such a successful, low rate of crime. 

Ms. LOFGREN. My time is up. I would just like to say how impressed I am by the professionalism of all the witnesses. Thank you 

very much. 

Ms. SA ́ NCHEZ. The time of the gentlelady has expired. 

The gentleman from Massachusetts, Mr. Delahunt, is recognized. 

Mr. DELAHUNT. Yes, I would like to just echo the statement by 

my colleague from California. I spent 22 years as the elected 

State’s attorney, district attorney in the greater Boston area, and 

I want to commend all of you for what is your obvious professionalism. 

I have to tell you, what really strikes me is the lack of consultation on the part of the leadership at the Department of Justice, 

with each and every one of you. If there were problems, I would 

submit that it was incumbent on that leadership to provide you 

guidance and to have the kind of face-to-face discussion that I believe just simply is reflective of good management. 

And in this case, this is a case study of mismanagement, poor 

management. You have been disrespected, and I think this is a 

very sad commentary on the operation of the Department of Justice. The longer I listen, the more outraged I become. 

But in any event, let me apologize—and I think I speak for most 

Members on this Committee, that your obvious professionalism is 

to be acknowledged. And let me, at least for myself, extend my 

gratitude for the contribution you have made to the United States 

of America. 

73

Having said that, there are some questions here that I will address to Mr. Charlton. And, Mr. Charlton, let me say, if they didn’t 

take your advice in the policy, in terms of taping confessions of 

child molesters, they ought to reconsider it. They ought to reconsider it. 

I think we can all agree that child molestation is a crime that 

is particularly offensive and totally—well, let me just let it sit 

there. 

But maybe we ought to have another hearing, Madam Chair, 

upon that policy and why, particularly what the problem with the 

Department of Justice is, in terms of adopting what makes common 

sense, I would dare say, to any prosecutor, to prosecutor, in terms 

of preserving evidence so that those who molest our children can 

be incarcerated. 

Mr. Charlton, isn’t it correct that, on December 7th, Michael Battle, director of the executive office for the United States attorneys, 

called to notify you that you had been fired. 

Mr. CHARLTON. Yes, sir. 

Mr. DELAHUNT. Is it further correct that Mr. Battle refused to 

tell you whether the firing was related to your performance or to 

the performance of the office? 

Mr. CHARLTON. Yes, sir. 

Mr. DELAHUNT. Did you then make several additional calls to 

senior Department of Justice officials to try to find an explanation 

for the termination? 

Mr. CHARLTON. Yes, sir. 

Mr. DELAHUNT. Did you finally reach a senior official who told 

you that your firing was not performance-related? 

Mr. CHARLTON. I reached a senior official who gave me a different explanation, yes, sir. 

Mr. DELAHUNT. Well, what did he say to you? 

Mr. CHARLTON. He told me that this was being done because I 

raised not only the fact that I had been asked to resign, but that 

others had been asked to resign. He indicated to me that this was 

being done so that other individuals would have the opportunity to 

‘‘touch base’’ as United States attorney before the end of the President’s term. 

Mr. DELAHUNT. Okay. And with whom did you speak? Who was 

that official? 

Mr. CHARLTON. With William Mercer, the acting associate attorney general. 

Mr. DELAHUNT. I thank you. And with that, I yield back my time. 

Ms. SA ́ NCHEZ. Thank you. 

The Chair now recognizes the gentleman from Arizona, Mr. 

Franks, for 5 minutes. 

Mr. FRANKS. Thank you, Madam Chair. Madam Chair, I would 

like to yield to the distinguished Ranking Member, Mr. Cannon. 

Mr. CANNON. I thank the gentleman. 

Ms. Lam, just one little detail I would like to follow up on. Is 

your office, the office you have left, competent to handle the prosecution of these two other indictments that were recently filed? Do 

you have any concerns about the competency? 

Ms. LAM. Under the current leadership, I have no concerns. 

Mr. CANNON. Thank you. 

74

And, Mr. McKay, we talked earlier about the phone call you had 

from the chief of staff for Mr. Hastings. And you indicated or 

agreed with me, I think, when I said that you thought it was not 

that important. But it occurred——

Mr. MCKAY. No, I did not say that. I am sorry, sir. 

Mr. CANNON. I think what you said was that—I said, so this just 

didn’t arrive at the level of importance to report it? 

Mr. MCKAY. That is correct, yes. 

Mr. CANNON. Okay, thank you. But as I thought about it later, 

I realized that, in the Senate, you—I think it was the Senate; 

maybe it was here—you said that it was a matter of concern such 

that you called your staff together. 

Mr. MCKAY. Yes, that is correct. 

Mr. CANNON. So it did raise some concerns with you. Did you 

talk about whether or not you should call DOJ and report it? 

Mr. MCKAY. Yes, I did. 

Mr. CANNON. And what did your staff suggest? 

Mr. MCKAY. We all three agreed that I had stopped Mr. Cassidy 

before he crossed the line, and that it was not necessary to report 

it, and that we would leave it where it was. 

Mr. CANNON. Great, thank you. And I think that was highly consistent with what you said earlier. 

Did you call Mr. Hastings and suggest to him that his chief of 

staff had gotten close to the line? 

Mr. MCKAY. No, Congressman, I did not. I believe I made that 

very clear to Mr. Cassidy. 

Mr. CANNON. That he was getting close to the line? 

Mr. MCKAY. Yes. 

Mr. CANNON. So I guess what I am going at here, you felt you 

communicated that what he was doing was getting close to being 

inappropriate, but you didn’t feel any need to suggest that Mr. 

Hastings had a problem that he needed to correct within his office? 

Mr. MCKAY. No, Congressman, if it had gotten to that level, I 

would have been calling the Department of Justice about the call. 

You see my point, his call was disconcerting to me, and it was 

enough of concern that I called my two senior advisers together. 

But, no, I think Mr. Cassidy was very capable of reporting it to 

his own boss, and I left it at that. 

Mr. CANNON. When people do embarrassing things sometimes, 

they don’t tell their bosses. Where is my staff? I will remind them. 

No, I am sorry. That is a little light, I suppose. 

The policy, though, doesn’t talk about whether it is important or 

not. It talks about any contact. I would just leave that with you on 

the record. 

But one of the issues—and, actually, I sort of missed this. I am 

sorry, but I am just following up on someone else’s question. How 

many sentencing appeals were you recommending that the department authorize? And this goes back to an earlier conversation, I 

think, with Mr. Jordan. 

Mr. MCKAY. I couldn’t give you the number of appeals that we 

recommended to the solicitor general. I can tell you one is one that 

I handled myself, which was the appeal of the sentence imposed on 

the millennium bomber, Ahmed Ressam, a matter which I personally handled. 

75

And I did recommend to the solicitor general that his sentence 

be appealed to the Ninth Circuit. 

Mr. CANNON. Then it is like an isolated case. Were you recommending that more sentences would be appealed, or was that an 

issue? 

Mr. MCKAY. Congressman, at some point it became the policy of 

the Department of Justice—and I believe it became law for us—to 

report to the department sentences imposed by district judges that 

fell outside the sentencing guidelines. And my office assiduously 

did that to Main Justice and to the solicitor general’s office. 

So I can’t tell you the number of appeals we recommended, but 

there were many appeals in my office. 

Mr. CANNON. Was that reporting essentially a recommendation 

to appeal, in your——

Mr. MCKAY. No, as I indicated earlier, of course, the sentences 

are imposed by the district judges, not by prosecutors. And so, 

many times, the judge may impose a sentence below the guideline 

range not recommended by us. And the procedure, which was followed by me and my office, was to report sentences outside the sentencing guidelines to Main Justice, which we did. 

Mr. CANNON. In that process, did you talk to anybody about 

whether or not you should affirmatively appeal those? Or did you 

take that report as sufficient? 

Mr. MCKAY. Well, I took the report as sufficient. But we did, on 

certain appeals, make recommendations that they would be appealed to the Ninth Circuit, including the Ressam case. 

Mr. CANNON. Okay, so you would make that recommendation, 

and then you would be authorized or directed by Main Justice to 

go ahead with an appeal? 

Mr. MCKAY. Yes, the solicitor general has complete authority 

over whether matters are appealed to the circuit courts by U.S. attorneys. 

Mr. CANNON. Great. Thank you. I see the time is about over, and 

I would certainly look forward to a second round. 

Ms. LAM. I am sure I am breaking some rule somewhere, but I 

did want to add something——

Mr. CANNON. It is my time. You are not breaking a rule. 

Ms. LAM. Very good. You asked whether my office could competently handle the continuing prosecutions, and I do believe they 

can. However, I do think it is important to emphasize that, in sensitive prosecutions, high-profile prosecutions, it is very helpful to 

have a confirmed United States attorney, because of the many 

interactions with the Department of Justice and the many sensitive 

issues involved. 

Ms. SA ́ NCHEZ. The time of the gentleman has expired. 

The gentleman from North Carolina, Mr. Watt, is recognized for 

5 minutes. 

Mr. WATT. Thank you, Madam Chair. 

Mr. McKay, let me just clarify one thing. Did the gentleman who 

called you from Representative Hastings’s office indicate where he 

was calling at the direction or on behalf of the Congressman, or did 

he indicate either way? 

76

Mr. MCKAY. He did not. I believe when I responded to him, I told 

him that I was certain that neither he nor the Congressman was 

in the process of lobbying me. 

Mr. WATT. Okay. 

Mr. Bogden, I think you got your call on December 7, 2006, from 

Michael Battle, the director of the executive office of the United 

States attorneys, telling you that your services were not going to 

be needed any longer, is that correct? 

Mr. BOGDEN. That is correct, sir. 

Mr. WATT. And did you get any explanation on that occasion as 

to whether this termination was related to your performance or to 

the performance of your office? 

Mr. BOGDEN. He just told me that the Administration wanted the 

office to go in another direction. When I asked him further what 

direction that was, he could give me no further details. I pressed 

him a little further, and he admitted that he wasn’t part of the decision process, but he had been given the marching orders to make 

the call. 

I asked him, since I wanted an explanation as to why I had received a call, who I could speak with that could give me some information, he said he thought about that himself, and if he had received such a call, he would reach out to the deputy attorney general, Paul McNulty. 

Mr. WATT. And did you subsequently talk to any senior Department of Justice officials to get any additional explanation? 

Mr. BOGDEN. Yes, I talked to a couple of them. I attempted to 

reach out to Deputy Attorney General McNulty. He hadn’t returned 

my call that day, so I reached out to the acting associate attorney 

general, Bill Mercer, and I had a conversation with Mr. Mercer. 

I let him know how disappointed I was and how upset I was, because I really felt that our office was going in the right direction 

and we were working very hard and achieving much. He then gave 

me an explanation. 

He said that the Administration has a very short 2-year window 

of opportunity, concerning the United States attorneys positions, 

and that this would be an opportunity to put others into those positions so they could build their resumes, get an experience as a 

United States attorney, so that, for future possibilities of being 

Federal judges or other political-type positions, they would be better enhanced to do so. 

Mr. WATT. So, in effect, you were told that you were being fired 

to make way for some other Republican Party loyalist or political 

up-and-comer who the Administration wanted to pad their resume? 

Mr. BOGDEN. That is what it seemed to me to be. 

Mr. WATT. And who was it that told you that? 

Mr. BOGDEN. That was the acting associate attorney general, 

William Mercer. 

Mr. WATT. Okay. Had you been engaged in an investigation of 

Governor Jim Gibbons at that point? 

Mr. BOGDEN. I just have to say, as having been a United States 

attorney, that matters concerning investigation, I don’t think it is 

appropriate for me to either confirm or deny that there was any 

such investigation. 

77

Mr. WATT. Okay. Can you tell us briefly what your EARS report, 

released in 2005, indicates about your performance? 

Mr. BOGDEN. Well, I had an EARS report. The evaluation was 

done March 3 to March 7, 2003. The EARS report, the final 

version, came out August 4, 2004. It was a very positive report. It 

was one of those—a good report, concerning our relationships with 

law enforcement, the things we were able to accomplish, things like 

that. 

I think also received another letter, June 2, 2005, which was another letter from the executive office, in this case, the director of 

EOUSA, at that time Mary Beth Buchanan. She had high praise 

for our office in a number of areas. Those areas included terrorism, 

white-collar crime, drug programs, our OCDETF program, what we 

were doing to combat gun violence. 

She noted that our district excelled in presenting the message of 

zero tolerance of official corruption, as was evidenced by our public 

corruption investigations. She also commented on our outstanding 

work in organized crime and crimes in Indian country. 

Mr. WATT. And is it true that, under your leadership, your office 

was one of the top offices in the country, in terms of numbers of 

immigration cases, drug cases, gang cases, child exploitation cases, 

and gun cases prosecuted? 

Mr. BOGDEN. And I think also identity theft there, sir, all——

Mr. WATT. Identity theft, also. 

Ms. SA ́ NCHEZ. The time of the gentleman has expired. 

Mr. WATT. Thank you, Madam Chair. 

Ms. SA ́ NCHEZ. Thank you, Mr. Watt. 

The gentleman from Tennessee, Mr. Cohen, is recognized for 5 

minutes. 

Mr. COHEN. Thank you, Madam Chairman. 

Mr. Bogden, I would just like to ask you one question, kind of 

an aside. I see that the Justice Department asserted you were fired 

because you resisted an obscenity task force. And I know what happens in Las Vegas stays in Las Vegas, what is obscenity in Nevada? 

Mr. BOGDEN. Sir, that is the first I have heard that that was any 

type of issue. That certainly wasn’t anything that was relayed to 

me by either EOUSA or the Department of Justice. 

As far as what we have been able to do, we put together a Child 

Exploitation and Obscenity Initiative back in July of 2005. When 

we put that initiative into effect, we have been able to increase our 

child exploitation prosecutions five-fold, so I am kind of surprised 

to hear that there would be anything contesting what we were 

doing in the areas of either child exploitation or obscenity. 

Mr. COHEN. Thank you, sir. 

I know a little bit more about the area around the Delta. And, 

Mr. Cummins, Congressman Berry speaks very highly of you, as to 

people throughout Memphis and the Delta. 

You were appointed in 2001 by President Bush, is that correct? 

Mr. CUMMINS. Yes, Congressman. And while we are talking 

about your neighboring districts, I would like to recognize that my 

home State, home district, Congressman Vic Snyder is in attendance and, I may be presumptuous, but I think he is mostly here 

78

because of our friendship and out of concern for what is happening 

to me and I would just like to publicly say that I appreciate him. 

We don’t happen to be in the same political party. In fact, I was 

his opponent in 1996 for Congress. But he works hard and represents our district honorably and I appreciate his attendance here 

today. 

Mr. COHEN. How did you make it—the gentleman said you made 

it known you didn’t want to finish up your term. 

Who in the Justice Department did you allegedly tell that to or 

did you not? 

Mr. CUMMINS. The short answer is I didn’t. I mean, honestly, 

Jody and I, my wife, had kind of decided that I had probably 

passed up some opportunities already during my time as United 

States attorney and if another one came along, we ought to give it 

serious consideration. 

A lot of our colleagues, maybe a third or more, had already 

moved on since 2001, when most of us started. And so I don’t think 

I made any secret of that. 

I didn’t know that you were supposed to keep all—anyway, I 

think what he is referring to are press reports that came out about 

comments I made after they had already called me and told me I 

was fired, when I did start kind of mentioning to the press that I 

might be moving on the future. 

But, frankly, that was part of kind of my attempt to be discreet 

and kind of conceal the fact that they had handled it like they had 

handled it. 

I chose to try to present a story like I would have expected them 

to handle it, which would have been more of a consultative process 

and treated me like I was a member of the team and called me and 

said, ‘‘Hey, we would like to put this other guy in your district,’’ 

and I am pretty sure I would have done whatever they had asked 

me to do. 

That isn’t what happened and I was trying to kind of soften it 

up so that it wouldn’t create a controversy. Obviously, I failed in 

that. 

But I didn’t know all these other dismissals were going to take 

place and had they not, it probably would have gone unnoticed. 

Mr. COHEN. Kind of like the Cardinals when they call somebody 

up from Little Rock, they bring them off the farm team. 

Mr. CUMMINS. That is right. 

Mr. COHEN. Let you know when you are being relieved. 

Mr. CUMMINS. That is right. It is a good analogy. The manager 

can take the pitcher off the mound anytime he wants. It is kind 

of nice if you get a pat on the rump and if you have been throwing 

strikes, they shouldn’t go to the press conferences and say you were 

throwing balls. But they can take you off the mound anytime they 

want. 

Mr. COHEN. On February 20, 2007, you received a letter, I believe, from Mr. Michael Elston. 

Mr. CUMMINS. I am not aware of a letter. 

Mr. COHEN. A call, excuse me, a call. 

Mr. CUMMINS. Yes, sir. 

Mr. COHEN. And what was the gist of that call? 

79

Mr. CUMMINS. Well, an article had appeared in the ‘‘Washington 

Post.’’ I mean, I think the call, in short, was stimulated by whatever was said in the article had touched some nerves and there 

were one or more people at the department at that were irritated 

that some of us were, at that point, responding to media inquiries, 

because at that point, they had put forward these explanations 

about the dismissals that we were concerned about and didn’t 

think were fair. 

And I had a conversation with him about it. It was pretty congenial. But at the end of the conversation, there was one part of that 

I felt like I really—I struggled with it, because I felt like it was 

a confidential conversation between Mr. Elston and I. 

But I also kind of thought he wanted me to tell the others, and 

so I passed that part. I conveyed to the people at this table that 

that conversation had taken place. 

Mr. COHEN. And you suggested it might be a major escalation of 

the conflict if they testified. Could it have been a surge? 

Mr. CUMMINS. I am not prepared to present my Iraq war plan 

today, but it was—I am reading from the e-mail I sent him and 

there was a part where I said that when the subject of testifying 

in Congress came up, that it was obvious that he viewed that as 

a major escalation in the controversy. 

What I was trying to convince him of was that nobody at this 

table was driving the controversy, that all of us had attempted to 

take our orders, whether we thought they were good orders or bad 

orders, and go off quietly, that really this was about Congress calling the department to task on the decisions they made and it was 

our reaction to the department’s position to try and defend these 

decisions. 

And, frankly, from our perspective, they could have told you all 

it was none of your business. You might not have liked that, but 

we probably would have been fine with that and we would have 

continued to go away quietly. 

It was only when they gave the explanations they gave that we—

and I was trying to convince them of that, that we weren’t trying 

to stir the controversy, that we turned down voluntary invitations 

to testify and that I didn’t really necessarily anticipate that there 

was going to be anymore motivation to stir the pot. 

But he made it clear that, in his view, that the department had 

been very restrained in their treatment of the issue and the disclosures they had made to defend their decisions and that if there was 

a perception that we were somehow trying to stir the pot, that it 

was likely that we would have to—we, and really I am talking 

about my colleagues more than me, because I had been separated 

out at that point—but that they might suffer some embarrassment 

because of additional disclosure that would be necessary to defend 

the department’s position. 

Some people have tried to characterize that as a threat. Mr. 

Moschella said I characterized it as ′′friendly.’’ But I said, ‘‘It could 

have been either. I am not going to characterize for you.’’

That was the nature of the discussion. It was pretty friendly, but 

I thought the point was there and I really felt like if I didn’t tell 

these other people that and then they went out and gave an interVerDate 0ct 09 2002 11:16 Aug 09, 2007 Jkt 000000 PO 00000 Frm 00085 Fmt 6633 Sfmt 6601 H:\WORK\COMM\030607\33809.000 HJUD1 PsN: DOUGA
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view the next day and the world fell in on them, that I would feel 

bad about that. 

So I felt like they needed to know this comment was made, go 

make your own decisions about what you do next, but you need to 

know the score and that is how I saw it. 

Mr. COHEN. Thank you. My time is up. I want to thank you for 

your comments. 

Mr. CUMMINS. I am sorry for the long answer. 

Mr. COHEN. That is fine. 

I would like to ask the Chairwoman if we couldn’t submit this, 

with unanimous consent, this copy of this e-mail, to make it part 

of the record. 

Ms. SA ́ NCHEZ. Without objection, so ordered. 

The Chair would also like unanimous consent to include in the 

record several commendations for the work that Mr. Iglesias did in 

his time as U.S. attorney in New Mexico. 

Without objection, so ordered. 

We had considered possibly doing a second round of questions. I 

understand this has probably been a very long day for you. 

We still have one other panel of witnesses to hear testimony and 

to question. 

Mr. CANNON. Madam Chair? 

Ms. SA ́ NCHEZ. Yes. 

Mr. CANNON. I think that I have a right to 5 minutes for each 

witness and I thought that we had an understanding that we 

would have a second round. 

I would ask unanimous consent that I be given 5 more minutes 

to question the witnesses and then if you would like to dismiss, I 

would not object to that. 

Ms. SA ́ NCHEZ. In light of the fact that you have been indulgent 

in granting our Members additional time, we will yield to you 5 additional minutes to ask any follow-up questions. 

After that, we will dismiss this panel and call up the third panel 

of witnesses. 

Mr. CANNON. Thank you, Madam Chair. It actually has been an 

extraordinarily long day. 

Ms. SA ́ NCHEZ. Without objection, it will be so ordered. 

Mr. Cannon is recognized for 5 minutes. 

Mr. CANNON. Thank you. And this has been an extraordinarily 

long day. 

Mr. Cummins, I just want to remind you that leadership changes 

in parties and we hope you don’t change parties. That is not a suggestion that you run against Mr. Snyder or anything like that. 

Mr. CUMMINS. I appreciate the friendship I have received from 

my Democrat friends, but I have no intention of changing parties 

at this time. 

Mr. CANNON. Good. Let me just say that you all have been put 

in a difficult position. Mr. Moschella I think apologized pretty profoundly for the difficulty. 

That said, I think things have been handled differently by different of you all individually. 

I just have to say I am a little astonished by some of the things 

that have been said and, unfortunately, whether you said in the 

81

Senate—I am sorry, in the other body, I think is the correct way 

to do it, if we are going to be rule oriented here. 

And so let me just ask, Mr. Iglesias, I think over in the other 

body, you talked about loyalty being a two-way street and said you 

were conflicted about calls from Mr. Domenici and Ms. Wilson and 

you didn’t report those calls. 

I think you said that here, as well. 

Mr. IGLESIAS. Yes, sir. 

Mr. CANNON. You mentioned, I think, there, I am not sure if you 

said here, that Senator Domenici hung up on you. Is that correct? 

Would you like to add to that? 

Mr. IGLESIAS. Sir, that is close. I think what I testified this 

morning was that the line went dead and I wasn’t sure if he hung 

up or what, but I took that as he hung up. 

Mr. CANNON. Great. And we talked earlier about how you didn’t 

report those contacts and you didn’t report them because you were 

conflicted, because you had some loyalty to these two people. 

I get the sense that perhaps Senator Domenici actually recommended you for the job. 

Mr. IGLESIAS. That is correct, sir. 

Mr. CANNON. And when you said that loyalty goes two ways, you 

felt that you were justified in lashing back because he had abandoned you. 

Mr. IGLESIAS. Well, as I ruminated during the month of December and January, I tried to piece together what had happened and 

I started hearing in Albuquerque that in early January, they were 

already asking for names for people to replace me. 

This is shortly after the December 7 call. 

Mr. CANNON. So you felt abandoned I think is the point, right? 

Mr. IGLESIAS. I think that is a good characterization. 

Mr. CANNON. Now, you heard Ms. Lam’s testimony when she 

spoke for all of you that you were not going to speculate. 

Did you agree with that statement by her that you are not going 

to speculate about the reasons for your being asked to resign? 

Mr. IGLESIAS. That is correct, sir, and there is no way that I 

could prove beyond a reasonable doubt what happened. 

Mr. CANNON. But you are speculating. You speculated in the 

Senate. You speculated here, right? 

Mr. IGLESIAS. Just putting forward facts that happened to me. 

Mr. CANNON. No, no, no, you are speculating about conclusions 

relating to those facts and I think you have characterized them as 

your conclusions, have you not? 

Mr. IGLESIAS. Sir, I really try not to speculate. 

Mr. CANNON. I think the term you used was ‘‘connecting the 

dots.’’ Doesn’t that mean speculation? 

You were the one that did the connection. Nobody came up to 

you and said, ‘‘I was talking to Senator Domenici and I am going 

to connect the dots for you, because you are not smart enough to 

figure it out yourself.’’

You did the connection, right? 

Mr. IGLESIAS. I attempted to reconstruct what had happened. 

Mr. CANNON. Which was speculative. 

Mr. IGLESIAS. Would you please define speculation? 

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Mr. CANNON. Well, Ms. Lam used speculation. I am suspecting 

that you agreed to Ms. Lam’s testimony, but you apparently have 

not been able to contain your concerns. 

I will tell you that I know Mr. Domenici. He is really smart and 

really tough and I just don’t believe your characterization of how 

the phone conversation happened. 

I don’t think he would have called you and done something that 

should have been reported to the Department of Justice, which you 

felt, now you say you felt should have been reported, but were conflicted and didn’t do it. 

You also conveyed yourself, I think, in the Senate, that this happening as like a Pearl Harbor. Is that fair? 

Mr. IGLESIAS. My telephone call was on Pearl Harbor Day, sir. 

Mr. CANNON. And did you feel like this was a Pearl Harbor Day 

or was it just the fact that it was——

Mr. IGLESIAS. On a microscopic level, yes, sir. 

Mr. CANNON. Well, I would suggest that it is microscopic. 

And then you need a month, you are running a big office, but you 

needed another month in the office to provide a transition in your 

life. I take it that is because you were not living providently. 

Mr. IGLESIAS. Sir, there are very few good legal jobs in Albuquerque, unlike Washington, D.C. 

Mr. CANNON. Let me just ask one final question. 

You announced an indictment in the press. Do you think that the 

lawyer for the defendant in that case should bring or can bring a 

motion based upon you prejudicing his case? 

Mr. IGLESIAS. I am not sure what a criminal defense attorney 

would do. It is debatable, sir. 

Mr. CANNON. But you violated policy that is intended to avoid 

that kind of outcome, is it not, the case? 

Mr. IGLESIAS. I am not willing to concede that, sir, no. 

Mr. CANNON. Well, you have got a few seconds left. Why don’t 

you tell me what it meant? 

Mr. IGLESIAS. I don’t understand your question, sir. 

Mr. CANNON. You announced an indictment in the press, something you characterized in the case of Ms. Wilson as being like a 

nuclear scientist being asked to divulge the secrets of a code for 

blowing up a bomb, and yet you announced it in the press. 

That doesn’t strike you as bad? 

Mr. IGLESIAS. No, sir, I didn’t. My last press conference, I avoided the use of the term ‘‘indictment.’’ I was talking about matters 

that were commonly reported in the Albuquerque market. 

Ms. SA ́ NCHEZ. The time of the gentleman has expired. 

Mr. CANNON. God bless you, you were the U.S. attorney and you 

talked to the press about it. 

I yield back. 

Mr. DELAHUNT. Madam Chair? 

Ms. SA ́ NCHEZ. Yes, Mr. Delahunt? 

Mr. DELAHUNT. I am going to ask unanimous consent for a 

minute. 

The inference that was drawn by the Ranking Member I think 

is an inaccurate one. 

Ms. SA ́ NCHEZ. Without objection, so ordered. 

83

Mr. DELAHUNT. I would like to address this to anyone on the 

panel, but my memory is that the attorney general of the United 

States, U.S. attorneys and district attorneys call press conferences 

to announce indictments. 

Am I missing something or is that the policy of the United States 

Government and the Department of Justice? 

Mr. CANNON. Would the gentleman yield? 

Mr. DELAHUNT. I yield. 

Mr. CANNON. Mr. Iglesias was the U.S. attorney at the time he 

called the press conference and he didn’t announce indictments. He 

announced that there were going to be indictments in the near future, a very different thing. 

Mr. DELAHUNT. Well, the statement that you made, Congressman, was regarding the announcement of an indictment. You didn’t 

explain that it was about indictments that would be forthcoming. 

But just so that there is no confusion, I think it is very important 

that we note for the record that it is good policy, sound public policy to announce indictments, whether it comes from a U.S. attorney’s office or from the Department of Justice or from a State prosecutor. 

Ms. SA ́ NCHEZ. The time of the gentleman has expired. 

Mr. KELLER. Madam Chairwoman, I ask unanimous consent for 

30 seconds. 

Ms. SA ́ NCHEZ. The gentleman is recognized for 30 seconds. 

And I will note this will be the last time that we recognize Members who have already had an opportunity to ask questions. 

Mr. KELLER. Thank you. 

I just want to wrap up this proceeding on behalf of all of us, I 

think, on both sides of the aisle and just let you know that we are 

very empathetic, because we realize that getting fired from your job 

is sort of the capital punishment of the workplace. 

You all have come together today and exposed yourself to a lot 

of criticism by waiving your privacy rights, and yet you have acted, 

all of you, very professionally and we appreciate that. 

And you probably did deserve a little better than an icy call on 

December 7, 2006 saying you are fired without given a reason and 

I am glad that you got——

Ms. SA ́ NCHEZ. The time of the gentleman has expired. 

Mr. KELLER [continuing]. That apology today from the Department of Justice and we wish you all the best in your future endeavors. 

Ms. SA ́ NCHEZ. I want to thank all of our witnesses. We know that 

it is taken you a considerable amount of effort to get here to Washington, D.C. to testify. 

We understand it has been a very long day. I think you have 

been very helpful in shedding some light on what happened factually in terms of your requested resignations. 

You have been professional in your answers and, again, I can’t 

thank you enough for being here today to testify. 

You are now excused. 

And very shortly we will call the third panel of witnesses. 

Thank you, again. 

At this time, I would ask our third panel of witnesses to please 

be seated. 

84

I am pleased to introduce our third panel of witnesses. 

Our first witness is Representative Darrell Issa, first elected to 

Congress in 2000. Congressman Issa represents the 49th District 

of California and currently serves on the House Committee on the 

Judiciary. He also serves on House Foreign Affairs Committee and 

the House Government Reform Committee. 

Our second witness, the honorable Asa Hutchinson, is a former 

U.S. attorney for the western district of Arkansas. He served as a 

U.S. Congressman for the 3rd District of Arkansas from 1996 to 

2001 and was a Member of the House Committee on the Judiciary. 

In 2001, he was appointed administrator of the Drug Enforcement Administration. In 2003, he was confirmed as the under secretary for border and transportation security for the Department of 

Homeland Security and served in that capacity until January of 

2005. 

Our third witness, John Smietanka, served as a U.S. attorney for 

the western district of Michigan and as the acting U.S. attorney for 

the northern district of Illinois. He also served as the principal associate deputy attorney general for the Department of Justice. He 

is currently in private practice in southwest Michigan. 

Our fourth witness, Atlee Wampler III, is a former U.S. attorney 

for the southern district of Florida. He also served as a special attorney for the Department of Justice, organized crime and racketeering section, and the attorney in charge of the Miami Strike 

Force, organized crime and racketeering section, for DOJ. He is 

currently the president of the National Association of Former U.S. 

Attorneys. 

Our fifth witness, George Terwilliger, is also a former U.S. attorney, having served in the district of Vermont. He also served as the 

deputy attorney general for the Department of Justice and as the 

acting attorney general of the United States. He is currently in private practice. 

Finally, our sixth witness, P.J. Halstead, has served as a legislative attorney in the American Law Division of the Congressional 

Research Service of the Library of Congress since 1998. In this capacity, Mr. Halstead is one of CRS’s primary analysts on constitutional law and Congressional oversight issues. 

I want to thank you all for your willingness to participate at today’s hearing. 

Now, it is my pleasure to ask my colleague, Congressman Issa, 

to proceed with his testimony. 

TESTIMONY OF THE HONORABLE DARRELL ISSA, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Mr. ISSA. Thank you, Madam Chair and Ranking Member. 

I will place my formal statement in the record and, hopefully, 

since I have such a group of knowledgeable people on the U.S. attorney’s office, I will limit my testimony to one U.S. attorney, the 

U.S. attorney for the southern district of California. 

As you have already heard here today, many, many Members of 

Congress, but, to a certain extent, led by my efforts, because I was 

one of the Members, I was the Member of the Judiciary closest to 

the border and in the district that she oversaw, had deep concerns 

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for a very long time about enforcement against human smugglers 

at the border. 

We voiced that in the appropriate ways that I believe this Committee needs to do it and this body, the U.S. House of Representatives needs to do it. 

We are, after all, the oversight over the administration of the 

laws we pass and the money that we appropriate. 

The President and the Vice President were the only two members of the Administration elected. They asked for and had confirmed a number of individuals, thousands of them, and they set 

policy and they ran for reelection on that policy. 

And there were two hallmarks of the policy. One was that, in 

fact, they said they would secure the border, before 9/11 and especially after 9/11. 

Secondly, President Bush has lobbied long and hard this body 

and particularly this Committee for a comprehensive guest worker 

program. In the period 2004–2005–2006, I and my colleagues sent 

numerous different letters and this Committee held hearings in 

which our concerns about the enforcement in the San Diego region 

was voiced. 

And I would ask unanimous consent that my records of those letters be included in the record. 

Mr. CONYERS. [Presiding.] Without objection, it will be included. 

[The material referred to follows:]

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Mr. ISSA. Thank you, Mr. Chairman. 

This was not something that was done in the dark of night. This 

was not done by whispers or political activities. This was done on 

a bipartisan basis. 

And already submitted to the record is Senator Feinstein’s request to get to the bottom of the questions of low enforcement, of 

one category, that of human traffickers, not the 180,000 who try to 

cross the border every year, but those who, in fact, profit from the 

trafficking of human beings, those who are known to leave human 

beings in the desert to die or in the back of trucks to die. 

My investigation and activity began when a 21-time offender, Mr. 

Lopez, who has been repeatedly mentioned here, was not prosecuted, 20 times caught with illegals, 20 times sent home, 20 times 

not prosecuted. On the 21st time, it was brought to my attention 

by the Border Patrol. 

And I would also include in the record just a little picture, this 

is what we call the ‘‘wall of shame’’ that the Border Patrol keeps 

along the border and they do so because these are people who they 

caught who were released and they were caught as traffickers, repeat offender traffickers. 

It is demoralizing to the Border Patrol and it flies in the face of 

what this Congress has spent billions of dollars trying to do, which 

is make America safe and selectively prosecute the worst of the 

worst, and people who traffic in human beings are the worst of the 

worst. 

Now, before September 11, we didn’t have the other component, 

which is if we can’t prosecute those who would traffic a human 

being, who might be from Mexico or New Zealand or Afghanistan 

or Iraq or Syria, then how do we separate those who simply, as was 

said earlier, are nannies coming back from a weekend home from 

those who, in fact, would do us harm? 

That is the reason that, in a very straightforward fashion, I lobbied to change the behavior of U.S. Attorney Carol Lam and I was 

disappointed repeatedly not to be able to do so. 

I would also include for the record the statement by—she has already left and I apologize for that—Ms. Lofgren, who, in fact, last 

summer, on July 5, the day after Independence Day, in fact, particularly wanted to know why this policy was in effect and how outrageous it was that we didn’t have, and I will paraphrase it, ‘‘a zero 

tolerance policy at the border.’’

She did so while we were overseeing the border with the border 

chief and a day on which Mr. Sensenbrenner and I had met with 

the U.S. attorney and she was concerned. 

Now, that was before the election. It is now after the election, 

but nothing has changed. 

This Committee has a lot of things to look at. The story of Carol 

Lam is, in fact, that this is an incredibly talented U.S. attorney, 

a gifted prosecutor, who ran an office that did a lot of big things 

well. 

But I would ask this Committee to put into perspective, not all 

seven people who were terminated, but Carol Lam, she had a border region. She was repeatedly asked by this Committee and by our 

Senator to do better on the prosecutions of those who traffic in 

human beings. 

105

She didn’t do so and my only question for this Committee is not 

why was she let go, but why did she last that long? 

[The prepared statement of Mr. Issa follows:]

PREPARED STATEMENT OF THE HONORABLE DARRELL ISSA, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF CALIFORNIA

Chairwoman Sa ́nchez, Ranking Member Cannon, thank you for allowing me to 

join you today to share with you some of my experiences surrounding this hearing. 

I recognize that this hearing is about the removal of seven U.S. Attorneys, and 

the concerns of some members that President Bush will use an appointment process 

stipulated within the Patriot Act reauthorization. In my view, my colleagues with 

such concerns are putting the cart before the horse, because we have little reason 

to believe the President will abuse this temporary appointment procedure. To the 

contrary, the Administration has given me assurances that it plans to work with 

the Senate to fill the U.S. Attorney positions recently vacated. 

Beyond the legislation at hand, it seems the other key issues are whether or not 

U.S. Attorneys serve at the pleasure of the President, and beyond this point, whether or not any foundation existed for their removal. To the first issue, U.S. Attorneys 

absolutely serve at the pleasure of the President. The President and the Vice President are the only elected officials within the Administration, and every political appointee is an at-will employee. Period. Significantly, the U.S. Attorneys’ testimony 

states this point quite clearly. I will focus my testimony on the second issue, whether or not any foundation for removal existed, in my experience and knowledge of 

the US Attorney whose jurisdiction covered my congressional district. 

First of all, I would like to recognize Carol Lam for the many positive achievements during her service as U.S. Attorney for the Southern District of California. 

It would be difficult to overstate the importance of her successful prosecution of 

Congressman Randy ‘‘Duke’’ Cunningham and other corrupt public officials in San 

Diego. 

U.S. Attorneys, however, are given a myriad of responsibilities, and are expected 

to prosecute many different criminal activities. People have taken notice of U.S. Attorney Lam’s prosecution of corrupt officials, and hopefully this has scared straight 

any would be profiteers of the public trust. That being said, I am afraid that criminal cartels that traffic in human beings are taking notice that they are less likely 

to be prosecuted in the San Diego Sector than other areas along the Southwest border. 

Last June, Senator Feinstein wrote to Attorney General Gonzales to share her 

similar concern that Carol Lam’s failure to prosecute most alien smugglers would 

endanger the lives of Border Patrol agents and bring even more violent smuggling 

syndicates to the California border region. 

I first wrote to Carol Lam about border crimes more than three years ago after 

learning from a reporter that her office had declined to prosecute an alien smuggler 

apprehended while transporting a car loaded with undocumented immigrants near 

Temecula, California, in my district. The smuggler, Antonio Amparo-Lopez, had attempted to escape the arresting Border Patrol agents and, upon capture, the Border 

Patrol learned that the smuggler had 21 known aliases and had been arrested and 

deported more than 20 times without ever having been prosecuted. 

I sought information from sources in the Border Patrol, and others in the law enforcement community, about what was really happening with border prosecutions. 

Border Patrol agents were forced to accept a reality in which smugglers knew what 

they could get away with. A smuggler knew he could drive a van full of illegal immigrants across the border without fear of any consequence other than being sent back 

to Mexico to try again. Smugglers who were American citizens faced no consequences at all. 

Border Patrol agents and others within the Department of Homeland Security 

would privately bring my office information about the problems with prosecutorial 

guidelines put into effect by U.S. Attorney Carol Lam created in their efforts to secure the border near San Diego from organized smuggling cartels. In May 2006, my 

office released to the press a memo prepared by a senior source within the Border 

Patrol that detailed how Carol Lam’s policies adversely affected efforts to stop 

smuggling syndicates. According to the memo, only 6 percent of 289 smuggling suspects caught by Border Patrol agents from the El Cajon station east of San Diego 

in the 12 months ending in September 2004 were prosecuted. 

In August of 2006, former Judiciary Committee Chairman Jim Sensenbrenner and 

I had consecutive meetings with the Border Patrol’s San Diego Sector Chief Darryl 

Griffen and Carol Lam about this subject. While we attempted to persuade the U.S. 

106

Attorney to focus more resources in a way advocated by Federal law enforcement 

officers charged with securing the border, we left the meeting unconvinced that U.S. 

Attorney Lam was prepared to direct more resources toward the prosecution of actual foot soldiers for the smuggling cartels. 

For three years, I and other members of Congress wrote Ms. Lam, the U.S. Attorney General, and the President asking that more be done to prosecute those who 

traffic in human beings. Only someone who believes that trafficking human beings 

isn’t a serious crime could look at Carol Lam’s record and see an area that does 

not deserve legitimate criticism. 

My efforts to bring accountability and justice to the foot soldiers of smuggling organizations has not been limited to sending letters to the Administration. I have 

successfully secured both funding authorizations and appropriations to bring more 

prosecutorial resources to focus on alien smugglers. Last summer, these efforts 

began to pay dividends as the Department of Justice announced the addition of 35 

new prosecutors to border region offices such as San Diego who will focus exclusively on alien smuggling and other border crimes. 

I fully intend to continue my work, on a bipartisan basis, with California’s senators and my colleagues in the House of Representatives to ensure that our next 

U.S. attorney focuses on both border crimes and other critical cases here in the San 

Diego area.

Mr. CONYERS. The time of the gentleman has expired. 

And we now greet a former colleague, Asa Hutchinson. We welcome you to the Judiciary Committee panel. 

Mr. CANNON. Mr. Chairman, before Mr. Hutchinson begins, I 

know that Mr. Issa has been here all day. I understand he is willing to answer questions. 

Could we poll the panel to see if anybody has questions for Mr. 

Issa? Otherwise, I think it is typical to let a Congressman leave if 

there are no questions for him. 

Mr. CONYERS. We do have some that would wish to question him, 

but I would be willing to excuse Darrell Issa anyway if he has a 

sufficiently urgent reason to leave, and I would be willing to do it 

without——

Mr. ISSA. Mr. Chairman, although I took a redeye to get back 

here, I am willing to stay as long as necessary to meet the requirements of the Committee. 

If there is a short group of questions that I could answer quickly, 

great. Otherwise, I certainly would understand and move with regular order. 

Mr. CONYERS. If I could break order, then why don’t I just recognize the gentleman from Georgia for the questions he would like 

to put to you know. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

Congressman, you have focused a lot on this alleged smuggler, 

Mr. Antonio Amparo-Lopez, who you say had been arrested and deported 20 times without ever having been prosecuted. 

When did those arrests and deportations occur? 

Mr. ISSA. They occurred over, I believe, a 7-year period prior to 

the first complaint, which was in 2004. 

Although whether or not he committed other crimes, there is no 

question that he was not eligible to be where he was and he was 

deported 20 times before that. 

Mr. JOHNSON. When you say deported, do you mean that there 

were actually some deportation proceedings begun by the INS? 

Mr. ISSA. No. We have a procedure when you are not entitled to 

be in the U.S., when you are an illegal, and the gentlemen to my 

left can do a much better job of answering the details. 

107

You can voluntarily, you can waive the claim of various rights. 

Mr. JOHNSON. So in short, there was no prosecution of the gentleman because he was deported administratively, is that correct? 

Mr. ISSA. That is correct. Twenty times he was in the U.S. illegally and was let go back to his home country. 

Mr. JOHNSON. And that was administrative, not a decision that 

was made by the U.S. attorney’s office, isn’t that correct? 

Mr. ISSA. It was correct that—no, no, I take that back. No, he 

had been put up for prosecution. Prosecution had been refused previously and he was let go. 

The Border Patrol doesn’t make a decision on prosecution. 

Mr. JOHNSON. And how many times had the U.S. attorney’s office 

in the San Diego district refused to prosecute Mr. Lopez. 

Mr. ISSA. I don’t have that figure today. I have to be quite candid, the 21st time was when the Border Patrol had him on the top 

of the wall of shame and asked me if we could do something before 

he left the country again. 

Mr. JOHNSON. So pretty much after 20 times of being administratively deported, a complaint was made that the U.S. attorney’s office should commence criminal prosecution against this gentleman. 

Mr. ISSA. That is correct. 

Mr. JOHNSON. All right, thank you. 

Ms. SA ́ NCHEZ. [Presiding.] Mr. Keller is recognized. 

Mr. KELLER. Thank you. 

Mr. Issa, you were here today. I want to start with the alleged 

Duke Cunningham connection. 

You saw that I asked Will Moschella from DOJ a question and 

he testified under oath that Ms. Lam’s dismissal had absolutely 

nothing to do with her pursuing Duke Cunningham. 

When I asked Ms. Lam, under oath, if she had any evidence 

whatsoever that her dismissal was really in her prosecution of 

Duke Cunningham, she said, under oath, ‘‘No.’’

I just want to point out a timeline, based on letters that you sent 

that totally confirms that. The Duke Cunningham scandal was broken by your local paper, ‘‘San Diego Union Tribune,’’ on June 12, 

2005, and yet we have a series of letters from you 14 months before 

that date, calling the attention of the problem to Ms. Lam that she 

was not prosecuting certain alien smugglers who had been arrested 

repeatedly. 

In fact, your first letter is February 2, 2004. Is that correct? 

Mr. ISSA. That is correct. 

Mr. KELLER. And it makes common sense, but you obviously had 

no idea on February 2, 2004 that your colleague, who had just been 

reelected over and over again, 14 months from now, was going to 

be involved in some big scandal. Is that correct? 

Mr. ISSA. I am quite certain none of us here or on the dais had 

any idea. 

Mr. KELLER. And you aren’t the only one to raise those concerns. 

There were 19 Republicans that signed a letter, but there were also 

a couple of Democrats who raised the same concerns you did. 

Would you talk about that for a little bit? 

Mr. ISSA. Senator Feinstein has been an excellent Senator for 

California and she has shown an interest in an immigration reform 

policy, but at the same time, an assurance that we should make 

108

our borders secure, and she had written a letter that almost mimicked the exact same concerns I had and perhaps even generated 

by the other part of the enforcement process, the Border Patrol, 

being frustrated. 

Mr. KELLER. Let me just say, in closing, that I thought Ms. Lam 

today was very professional and handled herself well. She deserves 

a lot of credit for the Duke Cunningham prosecution and will go 

down in the books for that outstanding prosecution. 

But you, too, deserve a lot of credit, Darrell. I went to San Diego 

myself and spent a week in January of 2006, riding around with 

Border Patrol agents, and they reported to me the same frustrations that you had first been calling to the attention of everyone 

for 2 years, that they had arrested the same exact people 20 different times, that these people were bringing over about 10 illegal 

aliens per shot at 1,500 bucks a pop, making 15 grand a week, 

bring them in 10 times a year. 

Next thing you know, that is 150 grand and they were not being 

prosecuted at all and they were so frustrated because they were 

risking their lives to arrest folks and they may be shot and then 

they would turn them over and not be prosecuted. 

So I just want to commend you. You were ahead of the curve on 

that and I can just say, from having been there firsthand, you 

knew what you were talking about. 

Mr. ISSA. Thank you, Mr. Keller. And I think you point out the 

one great flaw that we tried to get changed in the southern district 

and that was that the U.S. attorney’s policy of less than dozen, no 

prosecution, had become known. 

So it created a guaranteed get-out-of-jail free or never go to jail 

and that, of course, enhanced a particular type of smuggling. 

I want to say one other thing, which is that I happen to believe 

that Carol Lam is a terrific prosecutor and when it came to big 

cases, she did extremely well. 

It really is a question of balance. Our office felt that we needed 

to have a little more balance on human smuggling and we endeavored to do so and we really regret that we didn’t get that during 

the period of time in which it might have helped in Federal policy, 

including a guest worker program and a national reform which this 

President lobbied for. 

Mr. KELLER. I thank you for your leadership. 

Madam Chairman, yield back the balance of my time. 

Ms. SA ́ NCHEZ. Thank you. 

If there are no further questions for Mr. Issa, you may be excused. 

And we will now move on to Mr. Hutchinson. 

Mr. Hutchinson, would you please proceed with your testimony? 

TESTIMONY OF THE HONORABLE ASA HUTCHINSON, A 

FORMER REPRESENTATIVE IN CONGRESS FROM THE STATE 

OF ARKANSAS 

Mr. HUTCHINSON. Thank you, Madam Chairman, Ranking Member Cannon, Mr. Chairman of the full Committee, Chairman Conyers, colleagues, former colleagues, I should say. 

It is good to be back in the home of the Judiciary Committee, 

where I served 1997 to 2001. I have enormous respect for this ComVerDate 0ct 09 2002 11:16 Aug 09, 2007 Jkt 000000 PO 00000 Frm 00114 Fmt 6633 Sfmt 6601 H:\WORK\COMM\030607\33809.000 HJUD1 PsN: DOUGA
109

mittee, the work of the Members of this Committee and for its history, as well. 

I am here today testifying as a former United States attorney 

and I have served in that capacity in the 1980’s under former 

President Ronald Reagan, but I have also worked with the United 

States attorneys both as administrator of the Drug Enforcement 

Administration, including the current batch of U.S. attorneys, as 

well as in homeland security, looking at drug enforcement, working 

with them on immigration enforcement and customs enforcement, 

as well. 

And the purpose of my testimony is, obviously, to answer any 

questions, but also to talk about the importance of the U.S. attorney and serving at the pleasure of the President in terms of carrying out the President’s mission and I certainly support that totally. 

The U.S. attorneys who have previously testified, I worked with 

most of those while I was head of the DEA and at Homeland Security and I have the greatest respect for them. 

But I also understand the issue here today is not necessarily the 

performance as simply the question that they serve at the pleasure 

of the President of the United States and whenever you serve in 

that discretionary role, the President can ask for a U.S. attorney’s 

resignation, as has happened many times during the course of history. 

But I would just make a couple points before I turn the microphone back. 

First, except for the U.S. attorney, except for the U.S. attorney, 

the Federal prosecutors are career attorneys who are not necessarily committed to the priorities of the Administration. And 

without the full support of the U.S. attorney, the President, 

through the attorney general, would have little impact on the strategic priorities of the Federal justice system. 

Any new Administration could choose from a laundry list of priorities that range from environmental enforcement to Federal gun 

laws to fighting terrorism and the priorities change with the necessity of the time and with the goals of the Administration. 

With limited resources, the U.S. attorney sets the prosecutorial 

guidelines, among a long list of Federal agencies, and they invariably change with different Presidents, but they cannot change 

without the commitment of the presidentially-appointed United 

States attorney. 

So it is essentially that the U.S. attorneys serve at the pleasure 

of the President and any U.S. attorney enjoys being able to say, as 

a mark of his or her authority, ‘‘I serve at the pleasure of the President of the United States.’’ And as a necessary part of that power 

and authority goes with the logical inference that the President can 

request that individual’s resignation. 

And it would be unacceptable for a U.S. attorney to refuse to enforce Federal immigration laws, drug laws, or to seek the death 

penalty merely because of disagreement with the Administration’s 

views. 

If you disagree with that statement, then it would appear to me 

that the President’s prerogative should be preserved and protected. 

110

With regard to the issue of the appointment of interim United 

States attorneys, it is my view that the attorney general should 

have the authority to name interim U.S. attorneys until the presidentially-appointed successor is named, confirmed and takes office. 

And while this is not perfect, it is consistent with the objective 

of the President having the ability to influence Federal enforcement priorities through the attorney general and the United States 

attorneys. 

The role of the U.S. attorney has always been critical to effective 

enforcement of our Federal criminal laws, but it has been substantially increased since the terrorist attacks of 9/11. 

The U.S. attorney not only sets enforcement priorities within the 

district, but also serves as a unique coordinator of the Federal law 

enforcement. 

In fighting terrorism, it is essential that the U.S. attorney be in 

synch with the attorney general and properly coordinate with the 

Department of Justice. 

For this reason, the current authority of the attorney general to 

name interim appointments makes sense and, in my judgment, 

should be continued. 

And with that, I will yield my time and I thank the Committee 

for its indulgence. 

[The prepared statement of Mr. Hutchinson follows:]

PREPARED STATEMENT OF THE HONORABLE ASA HUTCHINSON

Good afternoon. My name is Asa Hutchinson, and it was my privilege to serve 

on the House Committee on the Judiciary from 1997–2001 before being confirmed 

to serve as Administrator of the United States Drug Enforcement Administration. 

It is good to be back, and I am privileged to be testifying on a subject of great interest to me and to anyone who appreciates the importance of United States Attorneys 

to the administration of justice at the federal level in this nation. I was honored 

to have served as United States Attorney for the Western District of Arkansas from 

l982 until l985 during the administration of former President Ronald Reagan. 

It is from a number of perspectives that I have learned the critical role that a 

United States Attorney serves our nation and the priorities of the Administration. 

I have interacted with United States Attorneys as a defense lawyer; as a member 

of Congress; as head of the DEA; and as our nation’s first Under Secretary for Border and Transportation Security of the Department of Homeland Security. In the 

latter role, I worked with our federal law enforcement officials on customs, immigration and drug enforcement issues. The dedication, commitment and discretion of 

U.S. Attorneys is essential if the President’s administration is to be successful with 

its priorities in enforcing federal criminal law. That is why I fully support the President’s discretion in naming U.S. Attorneys who support the President’s priorities 

and who are committed to carrying out the president’s initiatives and enforcement 

goals. Let me elaborate on this main point:

1. Except for the U.S. Attorney, the federal prosecutors are career attorneys 

who are not necessarily committed to the priorities of the Administration. 

Without the full support of the U.S. Attorney, the President, through the Attorney General, would have little practical impact on the strategic priorities 

of the federal justice system. Any new administration could choose from a 

laundry list of priorities that range from environmental enforcement to federal gun laws to fighting terrorism. The priorities change with the necessity 

of the time and with the goals of the Administration. With limited resources 

the United States Attorney sets the prosecutorial guidelines for a long list 

of federal agencies, and those priorities invariably change with different 

presidents, but they could not change without the commitment of the presidentially appointed United States Attorney.

2. It is essential that the United States Attorneys serve at the pleasure of the 

President. It logically follows that the President may ask for the resignation 

of his or her appointee, with or without cause. A caution is necessary at this 

point. If a President exercises the power to fire a United States Attorney, 

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then that action is entitled to receive close scrutiny by those with oversight 

responsibility. I say this because we all recall the Saturday night massacre 

when the Nixon White House fired a number of federal appointees with investigative and prosecutorial power in the Watergate investigation. The actions of the President on that occasion received broad criticism and ultimately backfired with the appointment of Leon Jaworski who pursued the 

investigation with vigor and success. While that action was an extreme 

abuse of presidential power, the lessons of history illustrate that the presidential appointment power over U.S. Attorneys has been largely used to positively influence federal enforcement priorities. For example, it would be unacceptable for the U.S. Attorney to refuse to enforce federal immigration 

laws, drug laws, or seek the death penalty merely because of a disagreement 

with the Administration’s views. If you agree with that statement ,then it 

would appear to me that the presidential prerogative should be preserved 

and protected.

3. With regard to the appointment of interim United States Attorneys, it is my 

view that the Attorney General should have the authority to name interim 

U.S. Attorneys until the presidentially appointed successor is named, confirmed and takes office. While this is not perfect, it is consistent with the 

objective of a President having the ability to influence federal enforcement 

priorities through the Attorney General and the U.S. Attorneys.

The role of U.S. Attorneys has always been critical to effective enforcement of our 

federal laws, but their role has increased substantially since the terrorist attacks 

of 9/11. The U.S. Attorney not only sets federal enforcement priorities within the 

district but also serves as a unique coordinator of the federal law enforcement effort. 

In fighting terrorism, it is essential that the U.S. Attorney be in sync with the Attorney General and properly coordinate with the Department of Justice. For this 

reason the current authority of the Attorney General to name interim appointments 

makes sense and should be continued. 

I would be happy to respond to any questions.

Ms. SA ́ NCHEZ. Thank you, Mr. Hutchinson. 

Mr. Smietanka? 

TESTIMONY OF JOHN A. SMIETANKA, FORMER UNITED 

STATES ATTORNEY FOR THE WESTERN DISTRICT OF MICHIGAN 

Mr. SMIETANKA. I am electronically challenged and I found the 

button. 

Madam Chairman, Mr. Chairman, Mr. Ranking Member, my 

name is John Smietanka. I practice law in the western area of 

Michigan, with Smietanka, Buckleitner, Stephenson & Guzon. I 

have been in private practice now for about 13 years. 

For 25 years before that, I was a prosecuting attorney, 12 in the 

prosecutor’s office in Berrien County in the southwestern corner of 

the State with Congressman Conyers. 

For 12 years, I was a United States attorney for the western district of Michigan. I am a recovering politician, elected county prosecutor three times, and ran unsuccessfully for Michigan attorney 

general twice. 

I love and respect the office of the United States attorney and 

the U.S. Department of Justice very much. I know many former 

U.S. attorneys sitting in this panel, colleagues of mine, who equally 

love the department, love the position of U.S. attorney and is a 

part of our family and we don’t like it when our family is attacked. 

I also respect politics and politicians, because I was one, and I 

admire those people who have the guts to go out and run for office 

and practice what Aristotle called the art of government. 

The primary issue that I was asked to testify about was how to 

deal with the appointment of temporary replacement United States 

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attorneys when the presidentially appointed incumbent leaves office. 

And I jump to the conclusion and I say that I would endorse the 

Berman bill, because it is essentially what we came to at the recommendation of Attorney General Meese back in 1986 and served 

in decent stead until 2006. 

That policy, that legislation was a modification of what had been 

going on for decades before that. In fact, I believe Abraham Lincoln 

and 26 of his successors found that appointment by judges was not 

constitutionally offensive and was a fine way to deal with what 

should be an interim position, and I want to emphasize interim position. 

The President has the absolute right under the Constitution, 

under the Judiciary Act of 1789 to name and to replace United 

States attorneys. They have been under the direction of the attorney general since the 1870’s. They are at-will employees or, rather, 

inferior officers, the technical term. 

I suggest when you are talking about now the replacement of a 

U.S. attorney, an interim U.S. attorney, I would just highlight 

eight points and I will be finished. 

The position of the United States attorney has always been and 

should a political or policy non-career position. It is a very powerful 

position. With that should come great accountability. 

The appointment of temporary successors to the presidentiallyappointed United States attorneys under any legislative and/or executive scheme has dangers that have arisen in the past and will 

do so in the future. 

The appropriate work of the United States attorney’s office must 

go on without improper or undue interference from within or without. As I said, the President has a right to qualified political appointees in her or his Administration who will promote good Government and the Administration’s policy priorities. 

The Congress, courts, media and the public have parallel rights 

to scrutinize the work of those political appointees. The removal of 

a United States attorney by fiat or requested resignation should be 

approached carefully and may have consequences in how that office 

and the department functions. 

To make temporary replacement appointments of unqualified 

people would be to make a plaything of the office and extremely demeaning to a very critical office. 

And, finally, the appropriate way, as I said before, of appointing 

interim U.S. attorneys is the process that prevailed from 1986 to 

2006, essentially the Berman bill. Whether it is 120 days or some 

other figure is up to the legislature. 

Thank you, Madam Chairman. 

[The prepared statement of Mr. Smietanka follows:]

PREPARED STATEMENT OF JOHN A. SMIETANKA

My name is John Smietanka. I currently practice law in Western Michigan in the 

firm of Smietanka, Buckleitner, Steffes and Gezon. While the majority of our practice is in civil work, federal and state, we also handle a substantial number of federal and state criminal cases. 

113

MY BACKGROUND

I am admitted to practice law in the States of Michigan and Illinois, as well as 

the federal courts of those two states, the United States Sixth Circuit Court of Appeals and the United States Supreme Court. 

Berrien County, Michigan Prosecutor 

For 25 years of my career I was a prosecutor, first as an assistant county prosecutor in Berrien County, Michigan for 4 years, and then as Berrien County Prosecuting Attorney for almost 8 years. I was also President of the Prosecuting Attorneys Association of Michigan. During my time as county prosecutor, I was also involved in politics as a member of the Republican Party at both the local and state 

levels. I was elected 3 times as Prosecuting Attorney by the people of Berrien County. 

United States Attorney for the Western District of Michigan 

In 1981, the presidentially-appointed United States Attorney for Western Michigan (appointed by President Carter) James Brady, resigned to go into private practice, and, under the law as it existed at the time, the federal district judges in the 

Western District appointed Robert Greene as Interim United States Attorney. Bob 

had been an assistant United States Attorney in the office for many years. He 

served as the Interim United States Attorney until I was confirmed and commissioned in October 1981. 

Later in 1981 President Reagan nominated me and the United States Senate confirmed me as the United States Attorney for the Western District of Michigan. In 

1985, I was renominated and confirmed for a second four year term. When President 

George H.W. Bush was elected in 1988, I continued to serve as United States Attorney until January 1, 1994. 

I resigned effective on January 1, 1994, upon the confirmation of my successor, 

Michael Dettmer, the presidentially-appointed United States Attorney of former 

President Clinton. 

I served as U.S. Attorney for 3 Presidents (Reagan, Bush and Clinton) and 5 Attorney Generals (Smith, Meese, Thornburgh, Barr and Reno) and several acting Attorney Generals. 

The transitions of the United States Attorney’s Office in Western Michigan from 

the Carter to Reagan/Bush to Clinton United States Attorneys were almost seamless, with each of us cooperating completely and enthusiastically to ensure a smooth 

and effective transition. Jim Brady and Bob Greene remain good friends of mine. 

I mention this to emphasize two points.

• Transitions of an extremely sensitive and powerful political office such as 

United States Attorney can and should be as smooth as possible, with the 

goal that the work of the office continue as unaffected as possible.

• As every current and former United States Attorney that I have ever met 

(and that has been hundreds) has said, this is the best job any lawyer in 

America can have. We develop a loyalty to our office and the entire Department of Justice that borders on that given to one’s family. Like many others, 

I am a member of the National Association of Former United States Attorneys which is dedicated to ensuring that the Department of Justice continues 

to live up to its best traditions and goals. 

Principal Associate Deputy Attorney General 

I also had a unique honor in 1990. I was asked by then United States Deputy 

Attorney General William P. Barr to take a temporary detail to Main Justice as his 

Principal Associate. Later, when he became Attorney General in 1991, I was one of 

his Assistants in that office. In that role, I learned even more of how that department of many diverse divisions and offices, with 88,000 persons working there, functioned. My responsibilities included being the liaison between the Deputy and all 

of the departmental components (save for the Criminal Division and the Federal Bureau of Investigation, the responsibilities of later Deputy Attorney General George 

Terwilliger). My area of concern thus included all the United States Attorneys in 

the country. 

Occasionally I participated in the interview process for the candidates for United 

States Attorney positions, but was never a part of the selection process in the White 

House. 

United States Court of Appeals Nominee 

In 1992, President George H. W. Bush nominated me for a vacancy on the United 

States Sixth Circuit Court of Appeals. However, it was a presidential election year 

114

and over 60 nominees for judicial appointments did not get hearings before the Senate Judiciary Committee that year and our nominations died on the last day of that 

Congress. I was left with the consolation that it wasn’t personal, that very qualified 

people in our group (now Chief Justice of the United States Supreme Court John 

Roberts and former Governor of Oklahoma Frank Keating were with me) went on 

with their lives, and that, as John Roberts said, ‘‘We are now entitled to the acronym after our names: AJO: Almost Judge Once.’’. 

Candidate for Michigan Attorney General 

In 1994, and again in 1998, I ran unsuccessfully for the position of Michigan Attorney General as the Republican nominee. 

In our family we were taught to respect government, politics and politicians. A 

great aunt of mine once said of our family, ‘‘We were raised on politics, sports and 

cigar smoke.’’ Now, I confess, I am a recovering politician. 

With this background the Committee may appreciate a little how much I love the 

Department of Justice. It also may show that I have no grudge against politics and 

politicians. 

Therefore it troubles me when the word ‘‘politics’’ is sneered at, and is used as 

a dirty adjective in common speech. And it truly offends me when I hear prosecutors 

wrongfully tarred with that adjective when undeserved. Finally it causes me the 

most concern if there is any apparent basis in the actions of politicians, prosecutors 

or judges for their placing partisan or personal considerations above the honest and 

effective creation, execution and judging of the law. 

THE OFFICE OF UNITED STATES ATTORNEY

Let me briefly highlight the history of the United States Attorneys as part of our 

federal system of law. 

The position was first created in the Judiciary Act of 1789, one of the first laws 

of our country.

And there shall be appointed in each district a meet person learned in the law 

to act as attorney for the United States in such district, who shall be sworn or 

affirmed to the faithful execution of his office, whose duty it shall be to prosecute in such district all delinquents for crimes and offences, cognizable under 

the authority of the United States, and all civil actions in which the United 

States shall be concerned, except before the supreme court in the district in 

which that court shall be holden. And he shall receive as compensation for his 

services such fees as shall be taxed therefor in the respective courts before 

which the suits or prosecutions shall be....

Judiciary Act of 1789, Section 35. 

The same law created the position of Attorney General, but did not create a relationship between the two offices, rather assigning the majority of federal legal work 

to the United States Attorneys, and designating the Attorney General as legal advisor to the United States and its representative in the United States Supreme Court. 

In 1870 the Department of Justice was created by Congress and the folding of the 

United States Attorneys into it took place. 

While the process of filling the office of United States Attorney on a 4-year-term 

basis has been stable for over a century, the method of appointing temporary replacements has varied since my appointment in 1981. 

Appointment of Interim or Acting United States Attorneys 

For many decades, the appointing of United States Attorneys has been covered 

by 28 USC § 541.

• Prior to 1986, it was left to the federal district judges to select an ‘‘Interim’’ 

United States Attorney until a permanent presidentially-appointed person 

was fully-qualified.

• From 1986 to 2006, the Attorney General was given the first crack at an ‘‘interim’’ U.S. Attorney, and if a new person was not qualified within 120 days, 

the district court had the discretion to appoint such a person without time 

limitation (but only until a new presidentially-appointed person was qualified).

• In 2006, the section and the practice were changed to allow the Attorney General’s choice to remain in office until a successor was senatorially confirmed.

In addition there is another approach to filling the vacancy, the Vacancies Reform 

Act, 5 USC §§ 3345–3349d. This provides in the broadest terms for such person as 

115

the First Assistant United States Attorney then serving in the office where the vacancy occurs for a period of 210 days. 

PRACTICAL CONSIDERATIONS IN REVIEWING 28 USC § 546: 

The position of United States Attorney has always been and should continue to be a political position, that is, a ‘‘policy’’ or non-career appointment. 

It guarantees some sensitivity for the distinct culture and history of the people 

in the district when making discretionary legal decisions. 

Examples include:

• Working to achieve proper integration and cooperation between federal, state 

and local law enforcement authorities (Law Enforcement Coordinating Committees from the 1980s);

• Proper allocation of legal resources in a district that meets local needs (gun, 

obscenity, drug etc. cases);

• A proper sensitivity to how state and local governmental cultures can be 

checked for abuses of power (public corruption prosecutions);

• A presumed comfort with the public relations aspect of the United States Attorney’s job.

Furthermore, while I have the greatest respect for the career civil servants, we 

benefit by the responsiveness to the public and the accountability that goes with 

being a political officer. 

WITH GREAT POWER SHOULD GO GREAT ACCOUNTABILITY. 

We do need public scrutiny of the types of people that wield governmental authority, especially those who exercise the powerful investigative and prosecutorial tools 

that Congress has authorized and funded, and the Executive uses, to enforce federal 

laws.

• Although nomination by a President of suitable persons to be United States 

Attorneys has its own perils, it does at least cause administrations to be more 

careful that the persons that they ultimately choose are going to pass congressional and public scrutiny.

• While the current process of ‘‘advice and consent’’ by the United States Senate is not perfect (it can be brutally unfair and partisan, and has permanently 

negatively affected nominees’ lives), it does prepare them and others for the 

rough and tumble world of federal law enforcement.

• While both aspects of this process do in fact deter good and qualified people 

from subjecting themselves to it, for the most part it replicates the world of 

electoral politics where candidates voluntarily expose themselves to ‘‘the 

slings and arrows of outrageous fortune’’. Hopefully it develops in the survivors a thick skin covering a humbled ego with a certain empathy to the 

staffs and Assistant United States Attorneys they supervise, the agents and 

courts they work with, the victims and defendants they must protect, the 

media they are examined by and the public they serve. 

The appointment of successors to the presidentially-appointed United 

States Attorneys under any legislative and/or executive scheme has dangers that have arisen in the past:

• Court appointment: When the courts were the sole appointers of Interim 

U.S. Attorneys, the danger was that the person so designated would have had 

a too-close relationship to the court and have allegiance to it rather than the 

policies and practices of the President, Attorney General or the Department 

of Justice.

• Delay by the President or Senate: When the Administration or the Senate 

unduly delayed the nomination of a successor, interim or ‘‘acting’’ United 

States Attorneys could stay in that category for years. (See the extraordinarily difficult situation in Puerto Rico from 1993 to 1999 described in 

the trial and appellate court decisions in United States v. Fermin Hilario, 83 

F. Supp. 2d 263 (D.P.R. 2000), and United States v. Del Rosario, 90 F. Supp. 

2d 171 (D.P.R. 2000). See also the First Circuit’s reversal of the trial court 

in United States v. Hilario, 219 F.3d 9 (2000). In those cases the acting or 

Interim United States Attorney was in place for 61⁄2 years. This problem has 

occurred during different administrations, as witness the years of successive 

acting/interim United States Attorneys in the Virgin Islands in the 1980s.

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• Temporary appointments for political favoritism: A danger arises also 

if a temporary appointment of the Attorney General is not followed by some 

action to identify and move a successor through the process. It is most of concern where a perception may exist that the Interim United States Attorney 

is put in place to accomplish a purely partisan political goal. Every administration in the past 30 years has published extensive criteria for identifying 

the most professionally qualified candidates for U.S. Attorney positions.

• Changes in the leadership of an organization send messages. Whenever and for whatever reason one United States Attorney leaves and another 

comes in, there is profound uncertainty in the career staff of assistants and 

staff. Sometimes that is good, as when poor management skills or criminality 

is attacked, or a complacent office needs new ideas and energy; sometimes it 

is bad, as when the competent office leader is removed without apparent good 

reason. But sudden and apparently arbitrary changes at the top cannot help 

but affect the troops. This danger is most apparent in mass actions, such as 

the approximately 86 same-day terminations of U.S. Attorneys during the 

Clinton administration, and to a lesser extent, perhaps only by numbers, in 

the current situation.

The appropriate work of a United States Attorneys’ Office must go on 

without improper or undue interference 

Sensitive investigations and prosecutions, most especially those of political or 

other public figures should never be improperly derailed by a change of administration in the United States Attorney of a district. The best way for that to occur is 

for the departmental leadership, including both those in Main Justice and the local 

office itself, to commit themselves to seamless transitions. Unnecessary jerking of 

the reins distract the most compliant horses. 

Judging the reasons for the replacement of a United States Attorney 

must be done with great care and circumspection 

This is the most difficult of all considerations to apply in real life. Resignations 

are often the method of resolution of conflict giving both the employer and employee 

a way of avoiding undue embarrassment. In addition it would do the work of no 

United States Attorney’s Office any good, in my judgment, to undergo the stress of 

a public airing of personality conflicts, odd personal traits or the management 

quirks of the boss or her or his workers. 

When the reason for a hasty departure is the potential criminal behavior of the 

incumbent, that is a different story. And sometimes non-criminal but tortious behavior occurs and can be fair game for the public and for reason for firings. 

In the case of the 7 resignations under scrutiny here, I have absolutely no knowledge of what led to them. I have, nor do I need for my policy comments, no reason 

to deal with the merits of any of these cases. These 7 resignations and the 86 in 

1993, are unique in my experience. 

The President has a right to qualified political appointees in her or his 

administration who will promote good government and the administration’s policy priorities 

A concomitant right is to dismiss or seek the resignation of those who do not want 

to follow the lawful directives of that administration’s leadership. Again I emphasize 

I do not know what caused these resignations. If a United States Attorney is 

charged with enforcing a policy or a decision to do something which is illegal or morally repugnant, that person has a right, or perhaps even a duty, to oppose it internally. If internal opposition is unavailing, the proper course would be to resign rather than to perform illegal or morally repugnant acts. 

On the other hand, the President and the Attorney General have the right to remove a United States Attorney who is not doing a good job. To take that power 

away from the Chief Executive would be of questionable constitutionality, and certainly very bad government. 

In any event, the Congress, the Judiciary, the media and the public have continually exercised their prerogatives to evaluate just how well the President appoints 

and removes. 

The appropriate way of appointing Interim United States Attorneys is the 

process that prevailed from 1986 to 2006

No way to handle this situation is perfect. Each approach has dangers of abuse, 

inefficiency, favoritism and treading on toes. However, it seems to me that the most 

effective way is to allow the Attorney General to appoint for a period of time (120 

days is a fair number, though not worthy of Mount Rushmore enshrinement), and, 

if the President fails to nominate or the Senate fails to confirm a candidate, the 

court could (though not required to) step in. The court could, if the appointee of the 

Attorney General is doing a good enough job, reappoint that person. The one thing 

117

that is certain is that if the Administration were to put in as Interim United States 

Attorney someone who was then to fail to be confirmed by the Senate, 28 USC 546 

would bar that person from holding the office later. This would militate against an 

Attorney General immediately putting in a controversial political person that could 

be forced out ignominiously and forever within 120 days. 

This checks-and-balances process would put a premium on the administration, the 

court, the Senate and the ‘‘recommenders’’ of potential new United States Attorneys 

working together to speed the process along. Such an approach would be the best 

guarantee of as little disturbance of the work of the office. 

Therefore I endorse the approach of the Berman bill now before this Committee, 

which restores the principle that:

• An interim U.S. Attorney may be appointed by the Attorney General for 120 

days; and

• If a senatorially confirmed U.S. Attorney is not commissioned by then, the 

district court may appoint an Interim U.S. Attorney.

I am grateful for the opportunity to address the Committee on this issue and am 

available to answer any questions that you might have.

Ms. SA ́ NCHEZ. Thank you for your testimony. 

Mr. Wampler, you are recognized for your testimony. 

TESTIMONY OF ATLEE WAMPLER, III, PRESIDENT, THE NATIONAL ASSOCIATION OF FORMER UNITED STATES ATTORNEYS 

Mr. WAMPLER. Madam Chairman, Members of Congress, I am 

Atlee W. Wampler, III. I am appearing here today as president of 

the National Association of Former United States Attorneys, and I 

have filed a position statement of the association with the House 

Committee on the Judiciary. 

The association’s membership includes former United States attorneys from every State in the union and every executive Administration back to President Kennedy. 

The association’s purpose, as stated in its mission statement, is 

to promote and defend and further the integrity and the preservation of the litigation authority and independence of the office of the 

United States attorney. 

And it is the preservation of integrity and independence of the 

U.S. attorney that I am here to stress today. This bipartisan association is very troubled with these recent press accounts concerning 

the termination of a sizeable number of well performing U.S. attorneys. 

And, yes, the U.S. attorney serves at the pleasure of the President and the President may fire him or her at any time. However, 

there is a reasoned tradition that U.S. attorneys serve out the 

terms, the Administration’s terms, and we vigorously oppose any 

effort to remove a U.S. attorney because of political displeasure or 

political reward to another person to hold the title of this important office. 

Such terminations, unfortunately, give the perception of and generate speculation as to whether political considerations prompted 

these firings. 

The United States attorney is not an executive widget, is not a 

fungible executive commodity. These terminations cause disruptions in the U.S. attorney’s office. 

The U.S. attorney is the chief Federal law enforcement officer in 

the district and he is charged with responsibilities I have set out 

118

in my statement, that are set out in the statute, and they are plenary. 

Throughout the 4 to 8 years that a U.S. attorney operates in that 

position to manage a major law enforcement office, he gains education, training, experience and wisdom and becomes a very valuable asset to the system of justice in this country. 

And the U.S. attorney’s tasks are extremely demanding, demanding total commitment of the public and private lives, and their 

work is so stressful that the usual problem that we have at the end 

of Administration terms is that these highly experienced men and 

women leave office and depart to lucrative positions in private law 

firms. 

Most importantly, the United States attorney cannot be perceived to be biased toward nor influenced by any political party in 

power nor by politically prominent people nor people of great 

wealth. 

That polestar requirement manifests the principle that the U.S. 

attorney must have a degree of substantial independence and that 

is the major reason for the tradition of U.S. attorneys serving to 

the end of an Administration’s terms. 

If the U.S. attorney is doing his or her job of fairly carrying out 

the prosecution and the laws of the United States, he or she is 

going to upset some very important and prominent people and people of great wealth. These people are going to complain to the top 

members of the Administration to remove that U.S. attorney for 

making decisions that adversely affect them. 

And it is the duty of top officials in the Department of Justice 

and it has been through the history of the Justice Department that 

I have noted over the last 30 years that they politely listen to these 

complaints and pay them no heed if the United States attorney is 

faithfully executing the laws of his or her office. 

A President and an attorney general must respect that U.S. attorneys are charged with the statutory duty of enforcement of the 

laws impartially and fairly in the district, which gives the United 

States attorney an element of independence. 

The U.S. attorney is not charged by Congress with being simply 

a team player. 

Such terminations, rightly or wrongly, give a bad perception and, 

rightly or wrongly, cause speculation that justice is for sale and 

retribution can be sold and the dogs of justice can be called off. 

A President and an attorney general must exercise discretion in 

this sensitive area of the Administration of justice, not to do what 

President’s have the power to do, and that is to terminate a performing experienced United States attorney from office. 

[The prepared statement of Mr. Wampler follows:]

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PREPARED STATEMENT OF ATLEE W. WAMPLER, III


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Ms. SA ́ NCHEZ. Thank you for your testimony, Mr. Wampler. 

Now, is it Terwilliger? 

Mr. TERWILLIGER. Yes, ma’am, that is exactly right. 

Ms. SA ́ NCHEZ. Excellent, I am a quick study. 

You are recognized for your testimony. 

TESTIMONY OF GEORGE TERWILLIGER, III, FORMER DEPUTY 

ATTORNEY GENERAL OF THE UNITED STATES 

Mr. TERWILLIGER. Thank you very much, Madam Chair and 

Ranking Member Cannon and Mr. Conyers. Thank you for inviting 

me to appear today, despite the lateness of the hour. 

The United States attorney in each district plays a vital role in 

promoting the safety and wellbeing of all Americans. The process 

for filling United States attorney positions, whether initially or 

through a vacancy in an Administration, therefore, deserves the 

thoughtful and careful consideration that they are usually accorded. 

I had the privilege of serving as an assistant United States attorney for 8 years, as a United States attorney for 5 years, and to supervise the Nation’s 93 United States attorneys as deputy attorney 

general for a period of over 2 years. 

I was involved in decisions to hire United States attorneys, to review their performance and to remove them as necessary. 

As a general proposition, in dealing with United States attorneys 

today, I find that they are their assistants are among the most 

honorable and dedicated of professionals that one can encounter. 

I am here before this Committee today because I believe strongly 

that protecting the integrity of the office of the United States attorney is essential to our system of justice. 

It is also my privilege to know personally much of today’s leadership of the Justice Department, including Attorney General 

Gonzales and Deputy Attorney General McNulty. 

In addition, I am fortunate to enjoy the friendship of many of 

their staff members, as well as many long-serving career Department of Justice lawyers, men and women for whom I have sincere 

personal and professional admiration. 

I have every reason to believe that the department’s leaders 

share my views about the importance of maintaining the integrity 

of and respect for the office of United States attorney. 

In my experience, particularly as deputy attorney general, there 

are advisors variety of reasons why a change in leadership at a 

United States attorney’s office may be appropriate or even necessary. There is no entitlement to the job. 

During my own tenure as United States attorney, I believe it 

would be fair to say that there were those who praised my performance and there were those who found it wonting. 

I received my fair share of criticism for both policy and operational decisions. Such criticism comes with the territory. If one 

does not want to suffer such criticism, one should not assume the 

office. 

I considered the proper execution of my duties as United States 

attorney to require both a recognition that I serve as a subordinate 

of the attorney general and the leadership of the Justice Department and an awareness of my responsibility for forwarding within 

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my district the goals and objectives of each Administration in 

which I served. 

When I hear Mr. Wampler talk about the independence of the 

United States attorney’s offices, I assume he means the discretion 

and the respect for the discretion in deciding how to prosecute 

cases that has traditionally been afforded United States attorneys 

and their assistants. 

But I don’t think independence is the right word and I would 

ask—independence of whom or of what? 

It is decidedly not within the United States attorney’s responsibility for him or her to execute his duties in a manner that is politically driven. 

Where I or the attorney general believed that a United States attorney’s performance in regard to their core responsibilities was 

wonting, we acted on that belief. 

Because the United States attorney serves as a subordinate to 

the President, I think it is most appropriate that the authority to 

appoint interim United States attorneys be delegated to the attorney general, as it is under current law. 

There responsibility for the supervision and management of 

United States attorneys’ offices has been vested by Congress in the 

attorney general and the Department of Justice. 

It seems to me, as both a practical and a legal matter, therefore, 

that such responsibility should carry with it the authority to appoint the persons necessary to carry it out. 

I certainly recognize that the advice and consent process is critical to the balance of power between the Congress and the executive branch and I would hope that both branches of Government 

would act in a responsible manner to see that the nomination and 

appointment process necessary to fill a vacancy in the United 

States attorney’s office would move with dispatch. 

In conclusion, I regret the circumstances greatly which have led 

to this hearing. I would respectfully urge all parties to recall simply that United States attorneys, as has been mentioned so many 

times today, do serve at the pleasure of the President and may be 

removed for any reason. 

I would most respectfully urge Congress and, respectfully, this 

Committee to accord deference to that fundamental aspect of the 

office and urge restraint in exploring any particular or individual 

decision regarding a particular office. 

I welcome your questions and I would ask that my full statement 

be included for the record. 

[The prepared statement of Mr. Terwilliger follows:]

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PREPARED STATEMENT OF THE HONORABLE GEORGE J. TERWILLIGER, III


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Ms. SA ́ NCHEZ. It will be included. Just so all the witnesses know, 

your written testimony will all be included as it is written in the 

record. 

Mr. Halstead? 

TESTIMONY OF T.J. HALSTEAD, LEGISLATIVE ATTORNEY, 

AMERICAN LAW DIVISION, CONGRESSIONAL RESEARCH 

SERVICE 

Mr. HALSTEAD. Madam Chair, Members of the Subcommittee, I 

am pleased to be here today to discuss the Subcommittee’s consideration of H.R. 580. 

In my testimony today, I would like to address three issues that 

are relevant to today’s hearing, the first dealing with departure 

statistics for U.S. attorneys, the other two relating to H.R. 580 

itself. 

Regarding the first issue, Kevin Scott, a colleague of mine in our 

government and finance division, has done a great deal of work 

analyzing information that the Department of Justice has provided 

to us on the appointment of U.S. attorneys by date range, covering 

a period from April 1993 through February 2007. 

Using that data, CRS has determined that there have been 97 

instances where Senate-confirmed U.S. attorneys have left office 

during the course of a presidential Administration as opposed to 

the mass departures that we traditionally see during the changeover between Administrations. 

Of those 97 departures, we have classified 16 of those as resignations, which, for the purposes of our analysis, covers U.S. attorneys 

whose departures could not be attributed to another category, such 

as leaving for a position on the Federal bench or to enter or return 

to the private sector. 

Ten of those 16 resignations have occurred during the current 

Administration and, as you are well aware, recent news reports 

have stated that five of those 10 resignations were made at the request of the Department of Justice over the past 3 months. 

Additional news reports have stated that two other U.S. attorneys who had indicated that they were leaving in order to return 

to the private sector were also asked to resign and we have news 

reports indicating that one other U.S. attorney has been asked to 

resign, but is still serving. 

So in sum, there are reports indicating that a total of eight U.S. 

attorneys have been asked to resign in the past 3 months and the 

research we have conducted thus far has not revealed a similar 

streak of departures that reportedly stem from politically-motivated dismissals. 

It is important to note, however, that our research on this point 

is ongoing and may be aided by any future disclosure of information from the Department of Justice. 

These dismissals have drawn attention to how interim U.S. attorneys are appointed, in large part, based on the perception that recent changes to that appointment process are closely linked to the 

recent string of dismissals. 

One of the criticisms that has been leveled at the new appointment scheme is that it unconstitutionally deprives the Senate of its 

advice and consent function. 

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I have laid this out in detail in my prepared statement, but there 

is no substantive basis for that argument under current constitutional standards. It is well established that U.S. attorneys are inferior officers of the United States and that Congress could, therefore, remove any advise and consent requirement for their appointment all together, if it so desired. 

The constitutional flipside to this argument has been raised by 

the Department of Justice and others in opposition to H.R. 580, the 

argument being that a return to the prior appointment scheme 

would be inconsistent with the separation of powers doctrine, even 

in light of the long history of judicial involvement in the selection 

of United States attorneys. 

The same cases that establish that U.S. attorneys are inferior officers have also addressed this issue and have all rejected the argument that judicial appointment of Federal prosecutors is constitutionally problematic. 

Ultimately, any action that Congress takes with regard to H.R. 

580 will hinge on a weighing of the important institutional and policy considerations that surround the appointment of U.S. attorneys 

and not on constitutional factors. 

This brings me to my final point. If Congress, as an institution, 

is concerned with the potential that the current appointment dynamic may result in the prolonged circumvention of the Senate’s 

advice and consent function for U.S. attorneys, it needs to be aware 

that even upon a return to the previous version of section 546, 

there is still a possibility that the Department of Justice may rely 

on preexisting legal rationales in a way that impacts that advice 

and consent function. 

Our research indicates that under the current Administration, 

the Department of Justice has made repeated use of the Vacancies 

Reform Act to install individuals as acting U.S. attorneys and also 

made several successive interim appointments under the prior 

version of 546. 

Used in conjunction, those two approaches can be used to place 

interim and acting U.S. attorneys in place for up to a year, if not 

longer. 

It is well within Congress’ power to restrict the use of these statutes in such a fashion, but ultimately, as with the question of 

whether to retain the current appointment dynamic or to return to 

the previous standard, any decision will hinge upon a Congressional determination as to whether the potential benefits of this 

statutory flexibility outweigh the dangers such a dynamic poses to 

the institutional prerogatives of Congress. 

Madam Chair, I will conclude my testimony there. I look forward 

to working with all Members and staff of the Committee as it continues its consideration of this issue. 

I look forward to answering any questions you might have. 

Thank you. 

[The prepared statement of Mr. Halstead follows:]

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PREPARED STATEMENT OF T.J. HALSTEAD


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Ms. SA ́ NCHEZ. Thank you, Mr. Halstead. 

I now recognize myself for 5 minutes for the purpose of asking 

questions. 

Mr. Halstead, my first question is actually for you. 

Has the Department of Justice complied with your request for information in order for you to finish your report on U.S. attorneys 

who have served less than a full 4-year term from 1981 to 2006? 

Mr. HALSTEAD. Kevin Scott and Henry Hogue in our government 

finance division have been doing the vast majority of work regarding the statistical compilations. 

My understanding is that there was a disclosure of information 

from the Department of Justice on February 24, 2007 and I believe 

we have been told informally that the Department of Justice is in 

the process of winnowing through its records to see what further 

disclosures might be made. 

Ms. SA ́ NCHEZ. Thank you. 

My next question is for Mr. Wampler. 

We learned today that both Mr. Charlton and Mr. Bogden were 

told by the then acting assistant attorney general, Mr. Mercer, that 

they were being terminated during the last 2 years of the Bush administration to, in essence, make way for Republicans to pad their 

resumes. This would assist them in their political or legal careers. 

Do you think that that is a good reason to end the services of 

a sitting U.S. attorney? Does this call into question the previous 

statements of the Justice Department that they were dismissed for, 

quote-unquote, ‘‘performance-related reasons?’’

Mr. WAMPLER. Without commenting on other people’s testimony, 

our association would advocate that a U.S. attorney should not be 

changed, particularly this close to the end of the Administration. 

After all these years of experience and dealings that they have 

had, they are highly trained executives, other than if they disobey 

a particular order or a direct requirement. 

Despite that, these butting of heads between Department of Justice officials and U.S. attorneys happen often in many Administrations and these are things that should be worked out between well 

meaning executives to faithfully carry out the laws. 

Ms. SA ́ NCHEZ. Mr. Wampler, Mr. Moschella testified earlier today 

that Mr. McKay was asked to resign only because he championed 

an information system and Mr. McKay testified thereafter that everything he did in connection with that project was authorized by 

the deputy attorney general, Paul McNulty. 

In fact, Mr. McKay won a distinguished public service award for 

his leadership on this project in January of 2007, just 1 month 

after he asked to resign. 

Do you believe that a United States attorney should be forced to 

resign for this reason alone? 

Mr. WAMPLER. I believe the President having power to do that 

and our association would advocate that the President and the attorney general exercise great discretion and not do that. 

Ms. SA ́ NCHEZ. Mr. Terwilliger, you stated that the U.S. attorneys 

serve at the pleasure of the President and seemed to imply that the 

President should be able to fire them for no reason or no good reason, and I have a question for you, because it is very analogous to 

employment law. 

141

There are at-will employees in employment law and yet we don’t 

believe it is appropriate to fire employees for their race. 

Would you argue that it is proper for the President to remove a 

U.S. attorney for his race? 

Mr. TERWILLIGER. Of course not. 

Ms. SA ́ NCHEZ. Would you argue that it would be, in the employment law context, improper to fire an employee for whistleblowing 

of wrongdoing or misfeasance? 

Would you, in your statement about the President has the absolute discretion, would you think that it is appropriate for a President to fire a U.S. attorney if he or she were engaged in whistleblowing or bringing misfeasance to somebody’s attention? 

Mr. TERWILLIGER. It would depend on the circumstances. If the 

U.S. attorney, for example, went out of a channel or a chain of command or disclosed grand jury material in the process of whistleblowing or announced an indictment——

Ms. SA ́ NCHEZ. Let’s just stay with the——

Mr. TERWILLIGER [continuing]. In the press in violation of the 

law and department rules, yes, then I would think it would be appropriate. 

Ms. SA ́ NCHEZ. But would you agree that there are probably 

strong public policy reasons for not allowing the President absolute 

unfettered discretion to fire U.S. attorneys for some very bad reason? 

Mr. TERWILLIGER. No, because the Constitution is what defines 

the President’s authority to appoint and remove inferior officers 

and under that system, the check on the President’s authority is 

not legal in nature, it is political, such as having this hearing. 

And if the Congress or the public, for that matter, through its 

elected representatives, think the President has made a bad decision, it can exercise the political check to that power by holding a 

hearing of this nature, among other things. 

Ms. SA ́ NCHEZ. So you are essentially saying the only remedy 

would be something political, and that there should be no framework under which a President is prohibited from firing or dismissing U.S. attorneys, even in some instances that we could imagine would be for very bad reasons? 

Mr. TERWILLIGER. Respectfully, ma’am, I believe that is what the 

Constitution says is the way it should be done. 

Ms. SA ́ NCHEZ. The question I am asking you is whether you believe that is. 

Mr. TERWILLIGER. Well, I believe in the Constitution, so I believe 

if that is what the Constitution—if I am correct that that is what 

the Constitution dictates, we should follow that dictate. 

Ms. SA ́ NCHEZ. All right, thank you. 

I would now like to recognize the Ranking Member, Mr. Cannon, 

for 5 minutes. 

Mr. CANNON. I thank the Chairwoman. 

Mr. Wampler, you talked about it being a reasonable position to 

allow a U.S. attorney to serve out his term. 

Let me ask you, in your mind, does that change when a new 

President comes in and decides to replace all U.S. attorneys at 

once, as, for instance, Clinton did? 

Mr. WAMPLER. Yes, sir. 

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Mr. CANNON. So at the beginning of an Administration, it may 

make some sense. But when the Administration is ongoing, taking 

a big group of U.S. attorneys and replacing them is more difficult. 

Mr. WAMPLER. They are just two different concepts, sir. When a 

President assumes office, he gets to appoint these officials. He gets 

to appoint the U.S. attorneys. So they are going to all be new. 

Mr. CANNON. Often, U.S. attorneys continue from one Administration to another, don’t they? 

Mr. WAMPLER. Yes, sir. 

Mr. CANNON. In other words, a new President should have the 

right to replace everybody, but it creates this kind of a political response, I think Mr. Terwilliger would say, if he does something 

that is characterizable as beyond the mark. 

Mr. WAMPLER. I don’t think so. I think when a new President assumes office, it has been pretty much a history that the people that 

were appointed by the prior Administration are ready to submit 

their resignations. 

Mr. CANNON. Then why is it that you couldn’t ask eight U.S. attorneys to quite, less than 10 percent? Why would it be different? 

Mr. WAMPLER. Well, it is the same President and he is the one 

that appointed them in the first place and they have now gained 

4, 6 years of experience. And it is not that he can’t, he certainly 

can. We are advocating he shouldn’t. 

Mr. CANNON. Let me shift gears just a bit and ask all the panelists. If we went back to the way it was and the judge appoints for 

some period of time, is there any question but that the President, 

if he disagrees with the appointment, has the ability to say to the 

U.S. attorney appointed by a judge that he doesn’t want him to 

continue serving and be able to ask for his resignation or fire him? 

So there is a check, in fact, on judges doing it. Is there any historical reason to think that would not be the case? 

Mr. SMIETANKA. No. Remember—if I could, on this point—the 

Judiciary Act creates the position of United States attorney, 1789. 

It has been modified to talk about the replacement and how that 

U.S. attorney fits into the structure of the Department of Justice 

in the mid 1800’s. 

However, the principle that a President can withdraw his authority from that person at any time is true whether or not, in my 

view, whether or not a judge appoints or the President appoints. 

Mr. CANNON. Mr. Halstead? 

Mr. HALSTEAD. Yes, I can provide the Committee with citations. 

It is a fairly well established principle that the President retains 

that removal authority. 

Mr. CANNON. Thank you. 

Mr. Terwilliger, let me ask you a question about our prior panel. 

I know you heard that. 

Using quotes here, based on the press conference that Mr. 

Iglesias called, the paper referred to that as ‘‘as he prepared to 

leave his office.’’

So he was still in office and he said, ‘‘We put corruption cases 

back on the front burner. As for the investigation of a kickback 

scheme reportedly involving construction of Albuquerque’s metro 

court and several other buildings, a corruption case rumored to 

dwarf the Vigil and Montoya cases.’’

143

‘‘Iglesias said he expected indictments to come very soon. But as 

he prepared for a news conference today, in which he expected to 

focus on a defense of his tenure,’’ putting his tenure above, I think, 

his—‘‘Iglesias said those indictments would not come under his 

watch. ‘I wish I would have that honor,’ he said, ‘but it will have 

to wait for my successor.’ ’’

In your view, is that an inappropriate thing for a retiring U.S. 

attorney to do? 

Mr. TERWILLIGER. With respect, Mr. Cannon, I don’t want to 

judge based on newspaper reports alone, which I am sure have 

been accurately reported, what a particular individual has done, 

particularly in a matter as serious as that. 

I will say this, though, that I understand perfectly, having been 

a United States attorney, how difficult it is to involuntarily give up 

your job and I understand that there may be some residual bitterness about that. 

But whatever the circumstances may be, whether it is viewed as 

a good reason or a bad reason, it cannot possibly justify someone—

and I am not saying this is what Mr. Iglesias did, because I don’t 

know, but it cannot justify the very, very serious transgression not 

just of department policy, but of the law, of reporting about an indictment that hasn’t been returned, that is prospective. 

Members of the political establishment are vexed constantly by 

leaks out of the executive branch, whether they are politically-motivated or somebody trying to feather their nest, talking about what 

is happening in investigations and potential charges and so forth. 

We investigated leaks when I was at the Justice Department. We 

took complaints from members at the department about leaks, very 

vociferous complaints, as I am sure some Members of this Committee that were around then remember, and it continues up to the 

present day. 

It is a very serious transgression when it occurs. 

Ms. SA ́ NCHEZ. The time of the gentleman has expired. 

Mr. CANNON. I yield back. 

Ms. SA ́ NCHEZ. The gentleman from Michigan, Mr. Conyers, is recognized for 5 minutes. 

Mr. CONYERS. Thank you. 

Madam Chairwoman, this is an important panel, because we are 

now examining the bill that is before the Subcommittee in a way 

that it hasn’t been given the attention previously. 

I want to commend you for including this third panel, because 

it is very important. 

House Resolution 580, in essence, suggests that we go back and 

review the current provisions of the PATRIOT Act and the measure 

that we are reviewing has only been in the law since March of 

2006, when the President signed the bill. 

So it seems to me, Mr. John Smietanka, that we really need this 

hearing maybe further because I don’t think that this provision—

we were trying to deal with so many other antiterrorist considerations at the time and I solicit your viewpoint for that opinion. 

Mr. SMIETANKA. I think that it is now 7 on a long day and to 

try to get into constitutional or organizational issues on this bill is 

rather difficult. 

144

I think that I agree with you, Mr. Chairman, that it does deserve 

attention and careful attention, because as the representative of 

the Congressional Research Service said, I believe, a few minutes 

ago and, also, in his prepared statement, that this is a matter of 

a close call and a careful examination by this Committee. 

This is serious business. This is very serious business. 

Mr. CONYERS. And it has a lot to do with the public perception 

of how the U.S. attorney’s office operates. 

To me, I think that that raises much of the discussion that has 

gone on today, that we have got a problem of perception here. I 

don’t know if we will ever discover what was in the hearts and 

minds of so many people, but perception is a very important part 

of what we are dealing with in making a decision to change this 

law back to the way that it was. 

Mr. SMIETANKA. If I could touch on that point. You have a delicate balance here between the legislature, the executive and the judiciary. You have two acts and a proposed modification of the 

546(d), which, in juggling around in how you put this together—

Mr. Terwilliger and I, who served together in the same office, a few 

hundred feet away from each other, have had many discussions on 

many different issues. 

You have heard one point of view from him. You can hear another from me as to the balancing here. I think it deserves a lot 

of attention and a careful examination and I would compliment 

Representative Berman for bringing this to the Committee as a 

bill. But it does need attention. 

Mr. CONYERS. I think so, too. 

Can I ask Asa Hutchinson, a former colleague on the Committee 

and who has served in a number of important areas in Government, about weighing in on this, Asa. 

How do you think you would recommend the Committee move 

forward on this very sensitive matter? 

Mr. HUTCHINSON. Well, I, again, commend the Committee for serious discussion of it. I think the debate today has been helpful. 

The comments of the representative of the Congressional Research Service need to be looked at very carefully. 

But, fundamentally, I think you have to separate the circumstance of the seven or eight U.S. attorneys who testified today 

or who have circumstances that they are concerned about with the 

constitutional issue and the prerogative of the President, which I 

think we all fundamentally agree with, that to carry out, whether 

it is President Clinton or whether it is President Bush, that the 

U.S. attorneys are key. 

And the prerogative of the President to keep them in office or to 

ask for their resignation, that is a constitutional prerogative that 

I think is important. 

So I would encourage the Committee——

Mr. CONYERS. I hate to tell you this, but that is a separate question entirely. 

Mr. HUTCHINSON. I would agree with you. 

Mr. CONYERS. And, finally, Mr. Wampler, you represent hundreds and hundreds of former U.S. attorneys. 

145

Do you think that they would join with myself and Mr. Berman 

and Mr. Scott, all Members of this Committee, that we move 

back—we are not creating a new system. 

We are going back to a system that was taken out in a conference report and which nobody knew that this had happened. 

This was not debated in the Committees, and was never debated 

on the floor of the Congress. 

It appeared, as you know how these things on conference reports 

happen. 

Mr. WAMPLER. The debate that I had seen among the officers and 

directors was that the old system worked. It was upheld in the 

courts regarding the various balance of power and it provided a 

practical incentive for the President to nominate a new U.S. attorney. 

So for those reasons, the consensus that I got from our members 

was to go back to what was there before. 

Ms. SA ́ NCHEZ. The time of the gentleman has expired. 

The Chair would now like to recognize the gentleman from Ohio, 

Mr. Jordan. 

Mr. JORDAN. Thank you, Madam Chair. 

Mr. Terwilliger, is your critique of the old system a simple separation of powers argument or were there practical problems over 

that, I believe, approximately 20-year period when it was in effect? 

Mr. TERWILLIGER. Thank you for asking me, because there were 

practical problems and I think there are practical problems. 

I was appointed United States attorney three times, the first by 

the court, then by the attorney general, then by the President, 

while the political process sorted itself out. 

I had colleagues at the time, I can remember one in particular, 

it is called the great sofa story, which Mr. Smietanka may remember, where the court appointed one U.S. attorney. When that appointment ran out, the attorney general then appointed another individual to be interim. That ran out and it reverted back to the 

court again and the sofa that one of those U.S. attorneys used had 

to keep being moved in and out of the offices as it changed. 

There is a real possibility where the chief judge does not consult 

with the department about the appointment, that you could have 

successive different individuals in there. 

I really think, as a practical matter, what I said in my remarks, 

I really well and truly believe, and that is if you are going to give 

the responsibility for running these offices to the department and 

the attorney general, then please give them the authority to put 

the people in there who have to do the job. 

Mr. JORDAN. And let me pick up on something that Mr. Hutchinson said in his testimony. 

He talked about the weight that comes from the ability to say, 

‘‘I serve at the pleasure of the President,’’ and I would certainly 

agree with that. 

Would the panel agree that that is the case? You are all shaking 

your head. 

Then maybe my question should go to Mr. Smietanka here. 

Do you think that weight is then diminished if, in fact, the attorney has not been appointed by the Administration and has, in fact, 

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been appointed by the judge who that attorney may, in fact, stand 

in front of? 

Mr. SMIETANKA. Well, I think you caught it, except for one word 

and that was diminished because of an appointment by the Administration. 

I think the operative word——

Mr. JORDAN. I don’t think it matters. I think the——

Mr. SMIETANKA. No, it does. No, no. 

Mr. JORDAN. Well, can that person still say that he or she fully 

serves at the pleasure of the President, when, in fact, the President 

is not the one putting them in front of—not responsible for them 

being in front of the judge that they are now bringing the cases? 

Mr. SMIETANKA. But your question was, with deference here, is 

that you said does the weight of being a presidential appointment, 

is that of significance in doing your job. 

Mr. JORDAN. And you shook your head ‘‘yes.’’

Mr. SMIETANKA. Absolutely, absolutely. A presidential appointment, Senatorial confirmation gives you gravitas inside the department, outside the department and wherever you go. 

Now, it is not quite the same thing with an attorney general appointment, an interim attorney general appointment. 

Mr. JORDAN. That wasn’t my question. My question was——

Mr. SMIETANKA. I thought it was. 

Mr. JORDAN [continuing]. The attorney general appointment, 

presidential appointment, prior to confirmation versus an appointment by the judiciary, where the President hasn’t weighed in on 

that individual. 

Neither one are going to be confirmed, we understand that. It is 

just who put them there. 

My point is I believe if, in fact, the AG put him there, in that 

120-day time period, they are still subject to withdrawal by the 

President and the President put them there. 

So there has to be more weight with that individual under that 

circumstance than when the judiciary does it. 

Mr. SMIETANKA. My whole point here, as I mention in my prepared remarks, is that we should speed the process along for getting a presidentially-appointed, Senatorially-confirmed U.S. attorney. 

Mr. JORDAN. Agreed. 

Mr. SMIETANKA. That is the key. I happen to think that because 

of the—this is unfortunate. This is a comment on Washington and 

the world today. 

The confirmation process can drag on for a long time and we 

need to push people to get it done fairly and expeditiously. 

I sat for a year——

Mr. JORDAN. So you believe a judge appointing it pushes it 

quicker and faster than the Administration appointing it, not taking in the fact the separation of power argument. 

Mr. SMIETANKA. I agree. The separation of power, that is done. 

That is a passe ́ argument. 

What is important here is——

Mr. JORDAN. I disagree. 

Mr. SMIETANKA. Well, it is passe ́ according to Morrison v. Olson.

But the Berman bill provides for attorney general appointment. 

147

As I said before, it doesn’t make much difference whether it is 

120 days or 150 days or whatever it is or 5 days. 

My point is that the danger of that judge getting out there and 

getting involved should move the legislature, the Senate, not this 

body, the other body, to get moving and that is the pressure that 

I think is important. 

Ms. SA ́ NCHEZ. The time of the gentleman has expired. 

The Chair would now like to recognize the gentleman from Georgia, Mr. Johnson, for 5 minutes. 

Mr. JOHNSON. Thank you. 

Mr. Smietanka, the USA PATRIOT Improvement and Reauthorization Act of 2005, which was signed into law on March 9, 2006, 

amended 28 USC section 546 in two critical respects. 

First, the act effectively removed district court judges from the 

interim appointment process and vested the attorney general with 

the sole power to appoint interim United States attorneys, and I 

believe that you all had been talking about that with respect to the 

last question or series of questions. 

But, secondly, the act eliminated the 120-day limit on how long 

an interim United States attorney appointed by the attorney general could serve and, as a result, judicial input in the interim appointment process was eliminated and, perhaps more importantly, 

it created a possible loophole that could permit United States attorneys appointed on an interim basis to serve indefinitely without 

Senate confirmation. 

What is your thought on the ability of an interim U.S. attorney 

to serve for an indefinite amount of time, never to be confirmed by 

the Senate? 

Mr. SMIETANKA. That has happened. In Puerto Rico, for 6.5 

years, we had had interim U.S. attorneys. That caused a great deal 

of controversy in Puerto Rico because of that. That was during the 

1990’s, during the Clinton administration. 

In the Bush administration and the Reagan administration, the 

same problem or virtually the same problem happened with the 

Virgin Islands. 

Mr. JOHNSON. Now, under the Clinton administration, though, it 

happened. I don’t know how it happened under 28 USC 546(c), but 

it certainly can happen, according to the current law that went into 

effect on March 6, 2006, signed into law. 

And I don’t really want to talk about what happened in Puerto 

Rico. What I want to talk about is the current state of the law now 

and whether or not you think it should revert back to how it was 

in accordance with the bill that has been introduced or the resolution that has been introduced by Representatives Berman and Conyers. 

Mr. SMIETANKA. My point is what I said earlier, that we should 

do everything we can to get a presidential nominee to the Senate, 

get them confirmed in the office, because I think it is extremely important that the President have that kind of person, with that kind 

of swag, if you will, or clout as the U.S. attorney, and I think that 

that, by definition, is in that process. 

The person who is the—I want to use this in the proper term, 

I am using the term political, a political appointment or a policy 

appointment. 

148

One of the factors which is very important, I think, for a good 

U.S. attorney is to have a comfort level with making political/policy 

decisions, dealing with the public. These are issues, Congressman. 

Mr. JOHNSON. And they can do so knowing that they are appointed and confirmed for a full 4-year term or until such time as 

the President would leave office. 

Mr. SMIETANKA. I think there is another aspect, too, and somebody else mentioned, somebody else asked this question. 

Can U.S. attorneys carry over into the next presidential term 

and is that appropriate? Maybe that is the question that wasn’t 

asked, is it appropriate. 

I would say it is. 

Mr. JOHNSON. Certainly, it is authorized that they would serve 

until such time as the next appointee was confirmed by the Senate. 

But what are your thoughts on that, Mr. Wampler? 

Mr. WAMPLER. As I expressed before, the general consensus of 

the officers and directors of the National Association of Former 

United States Attorneys was that the old system worked relatively 

well. 

The constitutional challenges were all turned back. It is a resolved issue regarding the separation of powers. And it provides incentive for the President to get the nominations in faster and to get 

the Senate to look everybody in the eye. 

Mr. JOHNSON. Good. 

How can you defend it, Mr. Terwilliger? How can you defend the 

current scheme? 

Mr. TERWILLIGER. For the reasons I mentioned, because the current scheme could conceivably result in the circumstance you described, which I agree with you is an undesirable circumstance. 

It isn’t a reason, in my judgment, respectfully, to throw the baby 

out with the bathwater. I still think the benefits of having the attorney general make the interim appointment are preferable. 

And, again, I think if it were abused, for the reasons——

Mr. JOHNSON. What about the——

Ms. SA ́ NCHEZ. The time of the gentleman has expired. 

Mr. JOHNSON. The cap on——

Ms. SA ́ NCHEZ. I am sorry. If you are clarifying the point. 

Mr. JOHNSON. There being no time limit on how long an interim 

appointee could serve. 

Mr. TERWILLIGER. I take your point and I think——

Mr. JOHNSON. Is that good or bad? 

Mr. TERWILLIGER. Well, I think anything that moves it back to 

the district judges is not well advised. That is my position. 

I do think it is an undesirable outcome if an interim appointment 

lasts for an extended period of time. 

There may be circumstances, given the nature that these are political appointments, where there will be a political stalemate of 

some kind and having it revert to the district court, to me, does not 

justify taking the process out of the political realm that it is designed by Congress and by statute to be in. 

But Congress makes the judgment on this, it is your determination. 

Ms. SA ́ NCHEZ. The gentleman’s time has expired. 

149

We have among the Subcommittee Members a colleague from the 

Judiciary full Committee, who is, in fact, the author of the bill that 

we are currently discussing. 

He has been patient and has sat in on the majority of the testimony given today by the three different panels. 

I would ask unanimous consent that he be granted 5 minutes to 

question the last panel of witnesses. 

Are there any objections? 

Without objection, so ordered. 

Mr. Berman, you are recognized for 5 minutes. 

Mr. BERMAN. Well, thank you, Madam Chairwoman, and I am 

cognizant of the time. 

But discarding the admonition that one shouldn’t ask questions 

that might draw out answers that he didn’t want to hear, I would 

like to ask Mr. Terwilliger a couple of questions. 

Good to see you again, by the way. 

Mr. TERWILLIGER. You, too, sir. 

Mr. BERMAN. And I would like to follow-up on Mr. Johnson’s 

questions. 

In my hypothetical, if the President of the United States, newly 

elected, seeing a Senate and a Senate Judiciary Committee that he 

thinks would constrain him more than he wants in the context of 

who he would like to be administering justice through these U.S. 

attorney posts, decides the way we are going to handle this is name 

interim U.S. attorneys for the duration of the time that the Senate 

looks adverse to the people we want, would you think that would 

be a wise and good policy? 

Mr. TERWILLIGER. No, and if I had the privilege of advising the 

President, I would tell him that was a very bad policy. 

But that being said——

Mr. BERMAN. I got the answer I wanted. 

Mr. TERWILLIGER. Okay. 

Mr. BERMAN. I understand your point. It could very well be that 

there is not a separation of powers constitutional issue in this, but 

if I were you and you had been given an opportunity, you would 

have responded to that point by saying, ‘‘But from a policy matter, 

do you really want district judges having the authority at some 

point to name the chief prosecutor in the district in which they are 

presiding?’’

Mr. TERWILLIGER. Well, that is my point, Mr. Berman. 

Mr. BERMAN. Right, and I understand that point. 

When the Chairman and I introduced this bill, we didn’t go back 

to the pre-1986 or 1984 formulation where the district court makes 

that appointment and, more than that, there may be even reasons 

not to do it this way. 

But I guess I would like you to respond to this context. We pass 

a reauthorization of the PATRIOT Act. It goes through both 

houses. The Justice Department never comes forward with this 

suggested change. 

It goes to a conference committee. The people on the conference 

committee have no recollection of this, including the Chairman of 

the Senate conferees, and we know, we think we know, we know 

nothing for sure, but we think we guess that what probably happened is the Justice Department got the staff of either the House 

150

or Judiciary to insert this at the last minute, as Mr. Conyers said, 

never debated, never discussed. 

And all I am saying is, don’t you think it is a better situation 

to go back to the status quo ante and then have a deliberative discussion of the best way to avoid the potential that you say is bad 

or a 4-year interim U.S. attorney appointed by the attorney general 

to avoid the constraints that the confirmation process would otherwise put on him versus the concerns one could have about district 

judges having the authority? 

They hardly ever did it, I take it, since the Reagan administration suggested this change in the law, until the reauthorization of 

the PATRIOT Act. 

But having the authority at some point, if that interim U.S. attorney wasn’t doing the job, in the district judge’s mind or in the 

chief judge’s mind, having the authority to substitute somebody 

else whom the attorney general could get rid of the next day by a 

new appointment as interim U.S. attorney. 

In that context, don’t you think the best way to do this is 

straightforwardly and openly and have this discussion on policy? 

Mr. TERWILLIGER. Well, I might agree—well, let me say, first of 

all, I have probably been around Washington too long, because I 

am starting to enjoy this discussion. 

But, secondly, I would not even begin to consider how mystery 

provisions wind up in bills and what that means to——

Mr. BERMAN. You don’t think this was the first time that ever 

happened? 

Mr. TERWILLIGER [continuing]. Of our political process. 

But I can agree with everything you said in terms of it being directed toward an open and robust debate about this, because I 

think, as a citizen, that is how we get the best result, is with an 

open and robust debate. 

I do not think, however, it is necessary to revert to the prior system in order to have that debate. We can have the debate with the 

current system in place. 

Mr. BERMAN. The current system allows an Administration to 

propose, as Mr. Johnson pointed out, without end, an interim U.S. 

attorney, never submit a name for confirmation, never submit that 

person for confirmation, and allow him to spend, in this case of this 

Administration, 2 years. 

I don’t know what their intentions are, but the current situation 

allows that. 

We would like to have a discussion about this without that authority being vested that we had no idea was being proposed to be 

vested in a President. 

Mr. TERWILLIGER. I would presume their intentions are honorable, until I see the contrary. 

And I would simply say that as was borne out before in the questioning, there is no question that if the President really wanted to 

do that and you and the Chairman’s bill were enacted, he could 

still do that by removing the district judge’s interim appointment 

and starting over again. 

Ms. SA ́ NCHEZ. The time of the gentleman has expired. 

I want to thank everybody for their participation, as I said, and 

their time this evening. 

151

Without objection, Members will have 5 legislative days to submit any additional written questions, which we will forward to the 

witnesses and ask that you answer as promptly as you can, to be 

made part of the record. 

Without objection, the record will remain open for 5 legislative 

days for the submission of any other additional material. 

I also just want to get on the record, number one, that we will 

be requesting additional information from the DOJ and hope that 

they will comply with our request in a forthright and expedient 

manner. 

And I also want to warn Members of the Subcommittee that we 

will have further discussions on H.R. 580, the Berman bill, down 

the line in the future. 

Mr. CANNON. Will the gentlelady yield? 

Ms. SA ́ NCHEZ. I will yield. 

Mr. CANNON. I would just like to congratulate the gentlelady on 

her first hearing. It was well run and with difficult people. 

You managed it remarkably well and I look forward to working 

with the gentlelady in the future hearings and markups. 

Ms. SA ́ NCHEZ. I thank the Ranking Member. 

I thank everybody for their time and their patience. 

The hearing on the Subcommittee on Commercial and Administrative Law is adjourned. 

[Whereupon, at 7:25 p.m., the Subcommittee was adjourned.] 

(153)

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE STEVE COHEN, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF TENNESSEE, AND MEMBER, SUBCOMMITTEE ON

COMMERCIAL AND ADMINISTRATIVE LAW

The Administration’s recent mass dismissal of eight U.S. Attorneys raises deeply 

troubling questions about its attitude towards the rule of law. Based on press reports and public comments made by some of the dismissed U.S. Attorneys, I strongly suspect that these firings were carried out for rank political reasons that had 

nothing to do with sound law enforcement. Today’s hearing will shed the much 

needed glare of publicity on the Administration’s disturbingly political approach to 

the administration of justice. 

While I understand that U.S. Attorneys serve at the President’s pleasure, they 

also have an obligation to support and defend the Constitution and laws of the 

United States in a non-political manner. Because of this independent obligation, 

U.S. Attorneys rarely have been forced to resign by the Administration that appointed them. Indeed, in the 25 years prior to the dismissals at issue here, only 

three U.S. Attorneys had been forced out of their positions in a manner similar to 

the eight cases at issue here, out of 486 U.S. Attorneys confirmed during that time 

period. Thus, suddenly asking for the resignations of eight U.S. Attorneys—many 

of whom were conducting or had conducted corruption investigations or prosecutions 

of public officials—in just a few months’ time seems very suspicious. 

It is also telling that the Administration appears to be surprised by the controversy that it has engendered. No doubt, the Administration’s reaction stems from 

the fact that it is not accustomed to aggressive congressional oversight, a result of 

Congress’s almost complete abdication of its oversight responsibilities during the 

first six years of this Administration. If nothing else, today’s hearing sends a clear 

message to the Administration that it can longer engage in political shenanigans 

without having to answer publicly for its behavior when something as central to the 

Nation’s creed as the rule of law is at stake.

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LETTER FROM RICHARD A. HERTLING, ACTING ASSISTANT ATTORNEY GENERAL, 

PROVIDING PERSONNEL DATA ON U.S. ATTORNEYS


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E-MAIL FROM H.E. CUMMINS TO FIVE OTHER U.S. ATTORNEYS REGARDING A PHONE

CALL WITH MIKE ELSTON, SUBMITTED BY THE HONORABLE LINDA SA ́ NCHEZ, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA, AND CHAIRWOMAN, 

SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW


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COPY OF MEDAL OF MERIT PRESENTED TO DAVID C. IGLESIAS, SUBMITTED BY MR. 

DAVID C. IGLESIAS, FORMER UNITED STATES ATTORNEY FOR THE DISTRICT OF NEW

MEXICO


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LETTER FROM MICHAEL A. BATTLE TO DAVID C. IGLESIAS, SUBMITTED BY MR. DAVID

C. IGLESIAS, FORMER UNITED STATES ATTORNEY FOR THE DISTRICT OF NEW MEXICO


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LETTER SUBMITTED BY RICHARD L. DELONIS, PRESIDENT, NATIONAL ASSOCIATION OF

ASSISTANT UNITED STATES ATTORNEYS


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ANSWERS TO POST-HEARING QUESTIONS FROM JOHN A. SMIETANKA, FORMER UNITED

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ANSWERS TO POST-HEARING QUESTIONS FROM GEORGE J. TERWILLIGER, III,

FORMER DEPUTY ATTORNEY GENERAL OF THE UNITED STATES


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ANSWER TO POST-HEARING QUESTIONS FROM ATLEE W. WAMPLER, III, PRESIDENT, 

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ANSWERS TO POST-HEARING QUESTIONS FROM DANIEL BOGDEN, FORMER UNITED

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LETTER FROM CHRISTOPHER K. BARNES TO DANIEL BOGDEN TRANSMITTING THE 2003 

E.A.R. REPORT, SUBMITTED BY DANIEL BOGDEN, FORMER UNITED STATES ATTORNEY

FOR THE DISTRICT OF NEVADA


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LETTER FROM MARY BETH BUCHANAN TO DANIEL BOGDEN, SUBMITTED BY DANIEL

BOGDEN, FORMER UNITED STATES ATTORNEY FOR THE DISTRICT OF NEVADA


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LETTER FROM MICHAEL A. BATTLE TO DANIEL BOGDEN, SUBMITTED BY DANIEL

BOGDEN, FORMER UNITED STATES ATTORNEY FOR THE DISTRICT OF NEVADA


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ANSWERS TO POST-HEARING QUESTIONS FROM CAROL C. LAM, FORMER UNITED

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LETTER FROM ADELE J. FASANO, DIRECTOR, FIELD OPERATIONS, U.S. CUSTOMS AND

BORDER PROTECTION, SUBMITTED BY CAROL C. LAM, FORMER UNITED STATES ATTORNEY FOR THE SOUTHERN DISTRICT OF CALIFORNIA


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ANSWERS TO POST-HEARING QUESTIONS FROM DAVID C. IGLESIAS,

FORMER UNITED STATES ATTORNEY FOR THE DISTRICT OF NEW MEXICO


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ANSWERS TO POST-HEARING QUESTIONS FROM H.E. (BUD) CUMMINS, FORMER UNITED

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ANSWERS TO POST-HEARING QUESTIONS FROM PAUL CHARLTON,

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E-MAILS FROM JUSTICE DEPARTMENT OFFICIALS REGARDING PAUL CHARLTON, SUBMITTED BY PAUL CHARLTON, FORMER UNITED STATES ATTORNEY FOR THE DISTRICT

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LETTER FROM MICHAEL C. NICLEY, FORMER CHIEF PATROL AGENT, U.S. BORDER PATROL, SUBMITTED BY PAUL CHARLTON, FORMER UNITED STATES ATTORNEY FOR THE

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ANSWERS TO POST-HEARING QUESTIONS FROM JOHN MCKAY, FORMER UNITED STATES

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