By Murray Waas, National Journal
© National Journal Group Inc.
Monday, April 30, 2007
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Attorney General Alberto Gonzales signed a highly confidential order in March 2006 delegating to two of his top aides -- who have since resigned because of their central roles in the firings of eight U.S. attorneys -- extraordinary authority over the hiring and firing of most non-civil-service employees of the Justice Department. A copy of the order and other Justice Department records related to the conception and implementation of the order were provided to National Journal.
In the order, Gonzales delegated to his then-chief of staff, D. Kyle Sampson, and his White House liaison "the authority, with the approval of the Attorney General, to take final action in matters pertaining to the appointment, employment, pay, separation, and general administration" of virtually all non-civil-service employees of the Justice Department, including all of the department's political appointees who do not require Senate confirmation. Monica Goodling became White House liaison in April 2006, the month after Gonzales signed the order.
The existence of the order suggests that a broad effort was under way by the White House to place politically and ideologically loyal appointees throughout the Justice Department, not just at the U.S.-attorney level. Department records show that the personnel authority was delegated to the two aides at about the same time they were working with the White House in planning the firings of a dozen U.S. attorneys, eight of whom were, in fact, later dismissed.
A senior executive branch official familiar with the delegation of authority said in an interview that -- as was the case with the firings of the U.S. attorneys and the selection of their replacements -- the two aides intended to work closely with White House political aides and the White House counsel's office in deciding which senior Justice Department officials to dismiss and whom to appoint to their posts. "It was an attempt to make the department more responsive to the political side of the White House and to do it in such a way that people would not know it was going on," the official said.
| An original draft of Gonzales's delegation of authority to Sampson and Goodling was so broad that it did not even require the two aides to obtain the final approval of the attorney general before moving to dismiss other department officials. | |||
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An original draft of Gonzales's delegation of authority to Sampson and Goodling was so broad that it did not even require the two aides to obtain the final approval of the attorney general before moving to dismiss other department officials, according to records obtained by National Journal.
The department's Office of Legal Counsel feared that such an unconditional delegation of authority was unconstitutional, the documents show. As a result, the original delegation was rewritten so that in its final form the order required "any proposed appointments or removals of personnel" be "presented to the Attorney General... for approval, and each appointment or removal shall be made in the name of the Attorney General."
The senior administration official who had firsthand knowledge of the plan said that Gonzales and other Justice officials had a "clear obligation" to disclose the plan's existence to the House and Senate Judiciary committees -- but the official said that, as far as he knew, they had not done so. When the committees began to inquire into the firings of the U.S. attorneys, the official said, Congress had a right to know that the firings were part of an ambitious effort to install administration loyalists throughout the department. The official spoke on the condition that neither his position nor agency be identified, because he feared retaliation from his superiors and the White House for disclosing aspects of the program.
Referring to the firings of the U.S. attorneys and the broader plan targeting other Justice employees, the senior official said, "You cannot separate one from the other. They were one and part of the same plan by the White House."
The official added, "The president of the United States has said it was imperative for the attorney general, and the attorney general alone, to re-establish trust with the Congress to keep his job … and you have, even after the president has said that, the attorney general and his men stiffing Congress."
Once the order went into effect, the extent to which Sampson, Goodling, and the White House played roles in the hiring and firing of various officials in the upper reaches of the Justice Department is unclear.
Sampson And Goodling
The roles that Sampson and Goodling played in removing U.S. attorneys and selecting new ones drew fire from both Democrats and Republicans in Congress, who cited their youth, their scant prosecutorial experience, and their lack of law enforcement credentials. Goodling was a 1999 graduate of televangelist Pat Robertson's Regent University School of Law and had worked at the Republican National Committee as an opposition researcher. Sampson had tried one criminal case while at Justice and had worked as a counsel for Sen. Orrin Hatch, R-Utah, and then for the White House counsel's office before rapidly ascending to become Gonzales's chief of staff.
Sampson has testified before the Senate Judiciary Committee about the U.S. attorney firings, but Goodling resigned on April 6, after her attorney asserted her Fifth Amendment right against self-incrimination for declining to testify. The House Judiciary Committee voted on April 25 to grant Goodling limited immunity from prosecution to compel her testimony about the U.S. attorney firings.
Justice Department spokesman Brian Roehrkasse said that Gonzales's order "simply gives the chief of staff and the White House liaison the authority to execute certain decisions related to the hiring and termination of some noncareer employees with -- as the memo states -- the 'approval of the Attorney General.' The constitutional issues were explicitly resolved in the order."
Deputy White House Press Secretary Tony Fratto said it was "unremarkable" that Sampson and Goodling would be involved in the hiring and firing of Justice Department officials.
"The job of a chief of staff is to work with the White House liaison to hire qualified people," he said. "That is fairly standard practice in any large Cabinet department or agency." Fratto added, "The White House has full authority in hiring and firing presidential appointees" and "can choose to delegate that authority. There is no need for written authority to exercise that power."
Asked why, if the process is routine, Gonzales issued the confidential order, Fratto responded, "I don't know why anyone would force the need to write such a memo." He referred further inquiries to the Justice Department.
John Dowd, an attorney for Goodling, said in an interview that it was "absolutely untrue" that his client was ever delegated the authority outlined in the confidential March 1, 2006 order signed by the attorney general. "She had no authority," Dowd said, "My God, she was an assistant to the chief of staff to the attorney general. She was an assistant to the assistant." An attorney for Sampson, Brad Berenson, said that his client was not available for comment for this story.
Robert Litt, who served as a deputy assistant attorney general under former President Bill Clinton, said in an interview that during the Clinton presidency "it was routine that senior appointments in the department would be vetted by the White House. Appointees were often placed by the White House." Such a process is typical under most presidents, Litt said, because they "want to ensure that their administration's policies and priorities are carried out."
But Litt also called Gonzales's secret delegation of authority to Sampson and Goodling unprecedented. It was distressing, he said, that many of the most sensitive appointments at the highest levels of the Justice Department were to "be made by these two people with no law enforcement experience... that this extraordinary authority was being delegated to these two young puppies," and apparently without much input by more-experienced and less-partisan officials.
Even though the White House played a major role in filling Justice Department positions before and during the Clinton administration, Litt said, "there was always a bit of tugging and pulling" between the White House and career department officials in selecting top aides: "Typically, a deputy attorney general might really like someone and the White House might not, or vice versa."
In the end, however, Litt and current and former Justice Department officials said that a balance is often brokered between the policy and political imperatives of an administration and the desire of career federal law enforcement officials to protect the integrity of the criminal-justice process. When Gonzales delegated such authority, and in secret, to Sampson and Goodling, he risked tipping that balance, Litt and other officials said.
Under the plan and delegation of the authority, even the second- and third-highest-ranking political appointees in the Justice Department -- the deputy attorney general and the associate attorney general -- would no longer have final authority to staff their own offices.
Justice Department records indicate that while the order was being drafted, McNulty and other senior department officials were at times purposely kept out of the loop.
A correspondence record from Gonzales's own files indicates that when Paul Corts, the Justice Department's assistant attorney general for administration, transmitted a memo regarding the then-draft plan to Gonzales, information regarding the plan was ordered to be withheld from McNulty. A "control sheet" of the department's Executive Secretariat, which tracks sensitive records as they move among senior Justice officials, includes this notation regarding the transmission of the Corts memo to Gonzales: "Per instructions received from JMD [the Justice Department's Management Division], ODAG [the office of the Deputy Attorney General] is to bypassed on the package."
To give Sampson and Goodling hiring and firing authority, the Justice Department first had to place that authority directly under Gonzales. The department published regulations in the Federal Register on February 7, 2006, stating that the final authority would be reserved for the attorney general. In the past, the deputy attorney general, the associate attorney general, and other senior Justice Department officials had been able to staff their own offices.
Once Gonzales had the final authority, however, another barrier stood in the way: The Office of Legal Counsel believed that an unconditional delegation of authority by Gonzales to his aides would be unconstitutional. Corts so informed Gonzales in a February 24, 2006, memo: "The Office of Legal Counsel (OLC) advises that permitting the Attorney General's delegates to approve [some] appointments … would be inconsistent" with the appointments clause of the Constitution. The "excepting clause" of the Constitution requires the president alone to exercise the appointment power, or his Cabinet officers, who are appointees themselves.
The draft was rewritten to address that concern, and Gonzales on March 1, 2006, signed the final order, which read: "Under the authority of this delegation, any proposed appointments or removals of personnel who are 'inferior officers' within the meaning of [the] Excepting Clause of the Constitution shall be presented to the Attorney General... and each appointment or removal shall be made in the name of the Attorney General."
At the bottom of the delegation order, this note appeared, in all capital letters, referencing the Federal Register: "INTERNAL ORDER-NOT PUBLISHED IN F.R."
Politics And Perception
A senior Justice Department official, who did not know of Gonzales's delegation of authority until contacted by National Journal, said that it posed a serious threat to the integrity of the criminal-justice system because it gave Sampson, Goodling, and the White House control over the hiring of senior officials in the Justice Department's Criminal Division, which oversees all politically sensitive public corruption cases, at the same time that they held authority to hire and fire U.S. attorneys.
"If you are controlling who is going to be a U.S. attorney and who isn't going to be,... firing them outside the traditional process... and the same people are deciding who are going to be their supervisors back in Washington... there is too much of a potential for mischief, for abuse," the official said.
Even if there is no interference or politicization of public corruption investigations, the same official said, "you are just going to have people questioning every prosecutorial decision, when all of the people in place have been put there for political reasons."
Typically, the assistant attorney general in charge of the Criminal Division has five deputies who oversee political corruption cases and nearly all other federal criminal prosecutions. The assistant attorney general in charge of the Criminal Division is a political appointee of the president and is subject to Senate confirmation. But two of the division's five deputies are not subject to Senate confirmation. Under the order signed on March 1, 2006, their fate was delegated to Sampson and Goodling.
Based on a review of the delegation order, the official said, the Criminal Division chief's principal deputy, his counselor, any of his special assistants, and a score of other aides were also among those who could be fired and replaced by Sampson and Goodling, and then subject to final approval by Gonzales.
"It would be an act of insanity and, frankly, implausible that the attorney general would grant authority to Kyle [Sampson] and Monica Goodling to make these decisions," the official said, "But it would be frightening if they were serving as proxies for the White House. You do not want to allow for the possible politicization of your Criminal Division like that."
Three of the fired U.S. attorneys have said that Republicans in Congress inappropriately approached them about politically sensitive investigations. Testimony by two of the U.S. attorneys, Sampson's testimony, and documents made public by the House and Senate Judiciary committees indicate that complaints by Republican lawmakers and White House officials may have played a role in the dismissal of two of the U.S. attorneys. Four of the federal prosecutors were involved in politically sensitive investigations at the time of their firings.
"What you have is U.S. attorneys saying they were being interfered with, people coming at them trying to influence them inappropriately, and then being fired," said the senior Justice Department official. "If we are learning now that the same people who are firing U.S. attorneys and replacing them with friendlier faces also were doing the same with their supervisors, with the people who ran the Criminal Division, then that is very serious."
Gonzales and Sampson both adamantly denied, in testimony before the Senate Judiciary Committee, that any U.S. attorneys were fired to interfere with politically sensitive investigations.
But David Iglesias, the fired U.S. attorney from New Mexico, testified before the Senate Judiciary Committee on March 6 that he felt improperly pressured by Republican members of Congress regarding a then-ongoing criminal investigation under his supervision. Iglesias testified that Rep. Heather Wilson, R-N.M., called him on October 16 to ask whether his office had returned sealed indictments against Democratic officeholders alleged to have taken kickbacks in a courthouse construction project. At the time, Wilson was locked in a tight race for re-election, and criminal charges against the Democrats would have aided her campaign. Wilson narrowly won re-election.
Ten days later after Wilson's call, Iglesias testified, he received a phone call from Sen. Pete Domenici, R-N.M., a political mentor to Wilson, also inquiring about possible pending indictments. Domenici asked him, "Are they going to be filed before November?" Iglesias testified. When Iglesias answered that no charges would be filed any time soon, Domenici responded, "I'm sorry to hear that," and the line went dead.
"I felt sick afterward," Iglesias testified, "I felt leaned on. I felt pressured to get these matters moving."
Domenici and Wilson have acknowledged making the calls but have said that they did not intend to influence Iglesias's handling of the kickback investigation.
Gonzales testified before the Senate Judiciary Committee that Domenici called him after the November 2006 election and complained to him that Iglesias hadn't aggressively pursued voter-fraud allegations against Democrats in New Mexico. Domenici also passed along similar complaints in conversations with President Bush and senior White House adviser Karl Rove, and the complaints were relayed to Gonzales.
Not long after, both Gonzales and Sampson have testified to the Senate Judiciary Committee, Iglesias's name was added, at the last minute, to the list of U.S. attorneys slated to be fired that was being compiled by Sampson and the White House. Asked during his Senate testimony whether Domenici's complaints played a role in Iglesias's firing, Sampson said that Deputy Attorney General McNulty commented to him, "Senator Domenici won't mind if he stays on the list."
A second ousted U.S. attorney, John McKay of Washington state, testified that the-then chief of staff to Rep. Doc Hastings, R-Wash., called him to inquire about potential voter-fraud charges against Democrats. Later, during an interview about a possible appointment as a federal judge, then-White House counsel Harriet Miers asked McKay why he had "mishandled" the charges concerning the governor's race, McKay testified.
Most recently, it was reported that a senior aide to Rep. Rick Renzi, R-Ariz., telephoned Arizona's then-U.S. Attorney Paul Charlton, to inquire about a criminal investigation into allegations that Renzi used his office to arrange a land deal that benefited a former business partner. The former partner then paid Renzi $200,000. After the FBI raided his wife's insurance business on April 19, and it was reported that Renzi himself was a target of the probe, Renzi temporarily stepped down from his seats on three House committees. Renzi has denied any wrongdoing, saying that the $200,000 payment from his former business partner was to settle a debt unrelated to the actions Renzi had taken to arrange the land deal. Renzi has also said that his aide called Charlton's office simply to inquire about whether Renzi was going to be criminally charged.
The Wall Street Journal (subscription) reported last week that prosecutors in Arizona charged that their superiors in Washington slowed their investigation and that the prosecutors suspected it was because the superiors wanted Renzi to win re-election. Conflicts between U.S. attorneys' offices and the Criminal Division typically stem from routine disagreements regarding the law and the strategy for handling an investigation.
But Charlton's firing, the delay in the Renzi investigation, and disclosures about the role of the White House in the firings of U.S. attorneys has created a climate where suspicions abound among career prosecutors, a senior Justice Department official said in an interview.
"Under ordinary circumstances, with something like the Renzi case," the official said, "everyone would assume that this was just an honest disagreement between a U.S. attorney and main Justice. But the presumption in the current environment is that everybody's motives are suspect-and for good reason. There really has to be a housecleaning and a coming clean to Congress, the public, but perhaps most of all, the rank-and-file line prosecutors."
-- Click here for more coverage of the Justice Department from Murray Waas.
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