On the February 15 edition of Fox News' Special Report with Brit Hume, Fox News national correspondent Catherine Herridge uncritically reported the assertion by Justice Department officials that “the decision to force out” seven U.S. attorneys recently “was based on, quote, 'performance-related issues.' ” But contrary to the Justice Department's assertion, Deputy Attorney General Paul McNulty has conceded that performance played no role in at least one of those cases: the forced resignation of H.E. “Bud” Cummins III as U.S. attorney for the Eastern District of Arkansas. Moreover, the Justice Department has provided no evidence publicly backing up the claim of “performance-related issues,” and, according to a February 14 McClatchy Newspapers article, “at least five of [the U.S. attorneys who were fired] received positive job evaluations before they were ordered to step down.”

Cummins was replaced by J. Timothy Griffin, a former research director for the Republican National Committee and White House senior adviser Karl Rove. During a February 6 Senate Judiciary Committee hearing on matter, McNulty said that regarding the Cummins replacement, “the fact is that there was a change made there that was not connected to, as was said, the performance of the incumbent, but more related to the opportunity to provide a fresh start with a new person in that position.”

According to a February 16 Arkansas Democrat-Gazette article noted by the weblog TPMMuckraker.com, Griffin, currently serving as the interim U.S. attorney, has decided that he “no longer wants the job permanently” and will not submit his name for Senate confirmation. Under a provision in the 2006 renewal of the USA Patriot Act, interim U.S. attorneys can remain in office until the Senate confirms a replacement. Before this provision was enacted, the attorney general could appoint an interim U.S. attorney who could remain in office for up to 120 days, after which the local federal district court could appoint someone to serve until a permanent successor was confirmed. The provision was reportedly added by the office of then-Senate Judiciary Committee chairman Arlen Specter (R-PA), who said at the February 6 Judiciary Committee hearing that a member of his staff had inserted the provision without his knowledge. On February 15, Sen. John Kyl (R-AZ) blocked Democratic efforts to pass legislation that would reverse the provision's changes.

A February 4 Washington Post article reported that “Justice Department officials ... have suggested that each of the recently dismissed prosecutors had performance problems” but that “there is also evidence that broader political forces are at work. One administration official, who spoke on the condition of anonymity in discussing personnel issues, said the spate of firings was the result of 'pressure from people who make personnel decisions outside of Justice who wanted to make some things happen in these places.' ”

A February 8 Seattle Times article reported that one of the fired U.S. attorneys, John McKay, of the Western District of Washington, received a “glowing performance review” from the Justice Department in his most recent review, seven months before he was forced out. " 'McKay is an effective, well-regarded and capable leader of the [U.S. attorney's office] and the District's law enforcement community,' the team of 27 Justice Department officials concluded, according to a copy of their final report obtained by The Seattle Times."

From McNulty's testimony during the February 6 Senate Judiciary Committee hearing in response to questioning from Sen. Sheldon Whitehouse (D-RI):

WHITEHOUSE: Mr. McNulty, welcome. You're clearly a very wonderful and impressive man. But it strikes me that your suggestion that there is a clear factual record about what happened and that this was just turnover are both just plain wrong.

I start on the clear factual record part with the suggestion that has been made to The Washington Post, that the attorney general also made to us, and I'm quoting from the Post article on Sunday: “Each of the recently dismissed prosecutors had performance problems,” which does not jibe with the statement of Mr. Cummins from Arkansas that he was told there was nothing wrong with his performance, but that officials in Washington wanted to give the job to another GOP loyalist. So right from the very get-go we start with something that is clearly not a clear factual record of what took place; in fact, there's -- on the very basic question of what the motivation was for these, we're getting two very distinct and irreconcilable stories.

McNULTY: Senator --

WHITEHOUSE: And I don't think that, if it's true, that as The Washington Post reported, six of the prosecutors received calls notifying them of their firings on a single day. The suggestion that this is just ordinary turnover doesn't seem to pass the laugh test*, really. Could you respond to those two observations?

McNULTY: Yes, sir. Thank you.

Senator, first of all, with regard to Arkansas and what happened there and any other efforts to seek the resignation of U.S. attorneys, these have been lumped together, but they really ought not to be. And we'll talk about the Arkansas situation, as Senator [Mark] Pryor [D-AR] has laid it out.

And the fact is that there was a change made there that was not connected to, as was said, the performance of the incumbent, but more related to the opportunity to provide a fresh start with a new person in that position.

With regard to the other positions, however --

WHITEHOUSE: But why would you need a fresh start if the first person was doing a perfectly good job?

McNULTY: Well, again, in the discretion of the department, individuals in the position of U.S. attorneys serve at the pleasure of the president. And because turnover -- and that's the only way of going to your second question. I was referring to turnover -- because turnover is a common thing is U.S. attorneys offices --

WHITEHOUSE: I know. I turned over myself as a U.S. attorney.

McNULTY: -- bringing in someone does not create a disruption that is going to be hazardous to the office. And it does, again, provide some benefits.

[...]

SEN. CHARLES SCHUMER (D-NY): Senator Specter wanted to say a brief word before Senator [Dianne] Feinstein [D-CA] left, and then we'll go to Senator [Jeff] Sessions [R-AL].

SPECTER: Well, I just wanted to comment to Senator Feinstein that I thank her for her work on this issue. I had said before you arrived in my opening statement that I did not know of the change in the Patriot Act until you called it to my attention on the floor. And I said to you at that time, “This is news to me, but I'll check it out.” And then checked it out with Mike O'Neill, who advised that Brett Tolman, a senior staff member, had gotten the request from the Department of Justice because of a situation in South Dakota where a judge made an appointment which was not in accordance with the statute. And there -- got an issue arising with other courts questioning the separation of powers. But when you and I have discussed it further and -- continuously, including yesterday, we came to the conclusion that we would send it back to the former statute, which I think will accommodate the purpose of this.

FEINSTEIN: Thank you very much. Thank you.

According to a February 15 Associated Press article, McNulty privately briefed Sens. Schumer, Specter, Kyl, and Patty Murray (D-WA) on the firings.

From the February 15 edition of Fox News' Special Report with Brit Hume:

HERRIDGE: On the Senate floor, the chairman of the Judiciary Committee claimed the dismissals of seven U.S. attorneys smacked of Republican cronyism. And he pointed specifically to the case of a U.S. attorney in Arkansas.

SEN. PATRICK LEAHY (D-VT): The attorney general removed respected U.S. attorney Bud Cummins and replaced him with the interim appointment of Tim Griffin, who'd been a political operative for Karl Rove. Come on. If the Clinton administration had done something like that in Arkansas during their time, we'd have banner headlines.

HERRIDGE: Cummins is one of seven U.S. attorneys who recently lost their jobs. The list of others includes Carol Lam, based in San Diego, who brought the successful bribery and corruption prosecution against former Republican Congressman Duke Cunningham. Federal prosecutors serve at the pleasure of the president. They can be fired for any reason.

Officials at the Department of Justice say the decision to force out these prosecutors was based on, quote, “performance-related issues.” That explanation doesn't satisfy some Democrats, who demanded a briefing this week from the Deputy Attorney General Paul McNulty.

Senator Chuck Schumer wants to review the performance reports for the U.S. attorneys in question, and he's threatening to subpoena the documents if necessary.

SCHUMER: Paul McNulty, who, you know, we don't have any problem with personally, he suggested that he didn't want to give them to us because people are asked to evaluate the U.S. attorney. We said simply redact the name, and you'll protect that person, and show them to us.

HERRIDGE: Schumer and other Democrats want to change a section of the USA Patriot Act that currently allows the administration to fire and replace federal prosecutors without going through Senate confirmation. The controversial provision was passed last year with overwhelming bipartisan support. Senate Democrats, led by California's Dianne Feinstein, want to bring a bill to the floor that would impose a 120-day deadline on the amount of time a replacement can serve without confirmation.