An article in the New York Times "Week in Review" section left out a key element in the controversy over the firings of eight U.S. attorneys: Justice Department emails appear to contradict Alberto Gonzales' congressional testimony, in which he said that the administration intended to seek Senate approval for every U.S. attorney appointed to replace those who had been fired.
In a March 18 "Week in Review" article -- headlined " For Federal Prosecutors, Politics is Ever-Present" -- New York Times reporter Adam Liptak wrote that "[w]hatever motivated the recent firings" of eight U.S. attorneys by the Bush administration, the dismissals "are of a piece with the administration's efforts to centralize power in Washington." To illustrate this effort, Liptak noted that a "law pushed through last year as part of the U.S.A. Patriot Act gave the Justice Department even more power" by allowing the attorney general to install interim U.S. attorneys without Senate confirmation. But in citing this change, Liptak left out a key element of the controversy and, therefore, key evidence that the controversy goes beyond a political dispute: Recently released emails provide evidence that Attorney General Alberto R. Gonzales and other high-ranking Justice Department officials gave false testimony to Congress, including testimony about the administration's intention to seek Senate approval for appointees replacing the fired U.S. attorneys and about the Justice Department officials' motivations in dismissing them.
In the article, Liptak explained how the new Patriot Act provision affected the U.S. attorney appointment process:
Whatever motivated the recent firings, they are of a piece with the administration's efforts to centralize power in Washington.
"A crisis like the Sept. 11 attacks creates the occasion for a monolithic model for law enforcement and national security," said Peter S. Margulies, a law professor at Roger Williams University. "It creates a lot of pressure for a top-down model. That includes even traditionally autonomous actors like U.S. attorneys."
A law pushed through last year as part of the U.S.A. Patriot Act gave the Justice Department even more power. In the past, United States attorneys appointed to fill vacancies had to be confirmed by the Senate within 120 days. If not, a local federal judge filled the position.
Now such interim United States attorneys, chosen solely by the Justice Department, can serve indefinitely.
But Liptak did not note Gonzales' testimony under oath that the administration would not attempt to circumvent the Senate and would nominate for Senate consideration everyone slated to replace departing U.S. attorneys. On January 18, he told the committee: "I am fully committed, as the administration's fully committed, to ensure that, with respect to every United States attorney position in this country, we will have a presidentially appointed, Senate-confirmed United States attorney. I think a United States attorney -- who I view as the leader, the law-enforcement leader, my representative in the community -- I think he has greater imprimatur of authority if, in fact, that person's been confirmed by the Senate."
Gonzales went on to testify that he "agree[d]" with Sen. Dianne Feinstein's (D-CA) belief that "that these positions should come to this committee [the Senate Judiciary Committee] for confirmation." Later, Gonzales reiterated the administration's position: "I've said to the committee today, under oath, that we are fully committed to try to find presidentially appointed, Senate-confirmed U.S. attorneys for every position."
But recently released emails from D. Kyle Sampson, Gonzales' former chief of staff, indicate an intention to take advantage of the change in the law by simply allowing interim U.S. attorneys to serve indefinitely without nomination and Senate confirmation in the cases of interim appointees who are likely to be opposed by their home-state senators. In a December 19, 2006, email, Sampson wrote of the appointment of J. Timothy Griffin -- a former research director for the Republican National Committee and aide to White House senior adviser Karl Rove -- as interim U.S. attorney for the Eastern District of Arkansas:
I think we should gum this to death: ask the [Arkansas] Senators [Democrats Mark L. Pryor and Blanche L. Lincoln] to give Tim [Griffin] a chance, meet with him, give him some time in office to see how he performs, etc. If they ultimately say, "no never" (and the longer we can forestall that, the better), then we can tell them we'll look for other candidates, ask them for recommendations, evaluate the recommendations, interview their candidates, and otherwise run out the clock. All of this should be done in "good faith," of course.
Overall, I think we should take the temperature way down -- our guy is in there so the status quo is good for us. Ask for them to consider him; note that he is qualified and doing a good job whenever asked; pledge to desire a Senate-confirmed U.S. Attorney; and otherwise hunker down. ... The only thing really at risk here is a repeal of the AG's [attorney general's] appointment authority. We intend to have DOJ [Department of Justice] leg[islative] affairs people on notice to work hard to preserve this (House members won't care about this; all we really need is for one Senator to object to language being added to legislative vehicles that are moving through). There is some risk that we'll lose the authority, but if we don't ever exercise it then what's the point of having it? (I'm not 100 percent sure that Tim [Griffin] was the guy on which to test drive this authority, but know that getting him appointed was important to [then-White House counsel] Harriet [Miers], Karl [Rove], etc.)
As Media Matters for America has noted, Democrats have proposed legislation that would reverse the new Patriot Act provision, and Gonzales reportedly has said that the administration will not oppose such legislation. But Sen. John Kyl (R-AZ) has reportedly indicated that he intends to block the reversal.
As Media Matters has also noted, Citizens for Responsibility and Ethics in Washington (CREW) has alleged that Sampson "knew that he was causing DOJ officials to make inaccurate statements to Congress," when these officials testified before Congress about the attorney dismissals. According to CREW, DOJ officials testified "that the U.S. Attorneys were asked to resign for performance related reasons, that the White House was minimally involved in the firings and that the Department was in no way attempting to evade the confirmation process for new U.S. Attorneys." In its request for the appointment of a special prosecutor, CREW noted the existence of documents that appear to prove that "at least two officials, former White House Legal Counsel Harriet Miers and Sampson, schemed to fire prosecutors for political reasons." CREW went on to assert that "[f]ederal law provides that if Sampson knew that he was causing DOJ officials to make inaccurate statements to Congress, he can be prosecuted for the federal crime of lying to Congress even though he did not personally make any statements to Congress."