Senate Judiciary Committee Hearing -- Kyle Sampson (washingtonpost.com)

U.S. SENATE JUDICIARY COMMITTEE HOLDS A HEARING ON U.S. ATTORNEY FIRINGS

MARCH 29, 2007

SPEAKERS:

SEN. PATRICK J. LEAHY, D-VT. CHAIRMAN

SEN. EDWARD M. KENNEDY, D-MASS.

SEN. JOSEPH R. BIDEN JR., D-DEL.

SEN. HERB KOHL, D-WIS.

SEN. DIANNE FEINSTEIN, D-CALIF.

SEN. RUSS FEINGOLD, D-WIS.

SEN. CHARLES E. SCHUMER, D-N.Y.

SEN. RICHARD J. DURBIN, D-ILL.

SEN. SHELDON WHITEHOUSE, D-R.I.

SEN. BENJAMIN L. CARDIN, D-MD.

SEN. ARLEN SPECTER, R-PA. RANKING MEMBER

SEN. ORRIN G. HATCH, R-UTAH

SEN. CHARLES E. GRASSLEY, R-IOWA

SEN. JON KYL, R-ARIZ.

SEN. JEFF SESSIONS, R-ALA.

SEN. LINDSEY GRAHAM, R-S.C.

SEN. JOHN CORNYN, R-TEXAS

SEN. SAM BROWNBACK, R-KAN.

SEN. TOM COBURN, R-OKLA.

WITNESSES:

KYLE SAMPSON,

FORMER CHIEF OF STAFF

TO ATTORNEY GENERAL GONZALES

BRADFORD BERENSON,

ATTORNEY FOR KYLE SAMPSON

[*]

LEAHY: Good morning.

I would note we're starting just a couple moments late here. There's a series of roll-call votes on the floor. And what I'm going to do is try to start as quickly as possible with statements by myself and the ranking member.

If we have further votes this morning, we're going to try to do it in a way that we go back and forth on the votes and keep the hearing going. This is too important a hearing. I know senators have a number of other things they're doing. But we'll go forward.

Today, the committee proceeds with another hearing into the mass replacements of U.S. attorneys. And this morning we'll hear testimony from D. Kyle Sampson, the former chief of staff to Attorney General Gonzales.

He is represented by another attorney who served in the White House Counsel's Office for the White House, Bradford Berenson.

Mr. Sampson could have been subpoenaed, but we thank him for appearing voluntarily and testifying.

I hope this hearing will provide us with an opportunity to learn additional facts and help us get beyond the shifting stories to the truth. Our goal is to get to the bottom of what happened, but also why it happened and who was involved in devising and implementing this plan to replace so many United States attorneys around the country.

At his press conference two weeks ago, and actually again this week in an interview, Attorney General Gonzales seemed to heap much of the responsibility for this matter on Mr. Sampson.

The attorney general admits that mistakes were made but he seems, according to him, to say: "However, those mistakes were mostly by Mr. Sampson.

LEAHY: He was one of the people in charge of assembling the list of U.S. attorneys to be fired. The attorney general indicated he was also one of the people who concealed information from others at the Department of Justice so there was, in the words of the attorney general, "consequently information shared with the Congress that was incomplete."

This hearing gives Mr. Sampson a chance to answer these charges by the attorney general, and also to present the facts as he knows them. We're going to ask only that Mr. Sampson share with us the truth and the whole truth with regard to these matters.

I want the American people to have a Justice Department and United States attorney's offices that enforce the law without regard to political influence and partisanship. I want that today, but I want to set the standard so that whoever is president two years from now, whether it's a Democratic or Republican administration, we have an independent prosecutor system that will prosecute without fear or favor.

We also know that one of the most important things a prosecutor can do is decide not only when to bring a charge, but when not to bring a charge. And if the people feel that there is somehow -- somehow political influence on those decisions, then we all suffer.

I want the American people to have confidence in federal law enforcement. I want our federal law enforcement officers to have the independence they need to be effective and to consistently merit the trust of the American people.

LEAHY: And regrettably, what we've heard from the administration has been a series of shifting explanations and excuses, a lack of accountability or even acknowledgment of the seriousness of this matter.

This investigation stems from this committee's responsibilities to the American people.

The Judiciary Committee has the authority to conduct oversight and investigations related to the Department of Justice and U.S. attorneys' offices.

We have the authority to examine whether inaccurate or incomplete testimony was provided to this committee, to consider legislation within our jurisdiction, and to protect our role in evaluating nominations pursuant to the Senate's constitutional responsibility to provide advice and consent.

As one who has been in the Senate for 32 years, I take the right and the duty of advice and consent very, very seriously. And I must admit that when anybody tries a back-door way to get around the Senate's constitutional duty and obligation of advice and consent, it does not sit well.

Indeed, it was in light of this jurisdiction, confirmation power vested in the Senate, the jurisdiction of this committee over the review of U.S. attorney nominations, that our ranking member observed early on that we have primary responsibility to investigate this matter.

The answers to our question at the January 18 hearing with the attorney general and the February 6 hearing with the deputy attorney general, as well as a series of statements by White House spokespeople and other Justice Department officials in private briefings, have been contradicted by the sworn -- by the sworn testimony of the former United States attorneys.

LEAHY: They've also been contradicted by the limited e-mails and other documents we've attained from the Department of Justice.

Let me emphasize it's been limited. A lot of them have been erased. The material in them have been removed.

And despite the initial denials of White House involvement, it's now apparent that White House officials were involved in the planning and replacement of U.S. attorneys and the subsequent misleading explanations from Justice Department officials.

U.S. attorneys serve at the pleasure of the president. But justice does not serve at the pleasure of the president or any president.

Our law enforcement and justice system is the envy of the world. It is one of our country's greatest strengths. It was built on a foundation of checks and balances, and the people's faith in the rule of law without fear or favor.

That foundation can be easily eroded. We need to be vigilant in protecting it.

The dismissed U.S. attorneys have testified under oath and said in public that they believe political influence was applied.

Incidentally, these U.S. attorneys were all appointed in a Republican administration.

And they've given chapter and verse and specific examples.

If they are right -- and that's why we're having these hearings, to determine if they are right, the mixing of partisan political goals into federal law enforcement -- then we have a situation highly improper. And it corrodes the public's trust in our system of justice. It's wrong.

That's what we're seeking to determine through our investigation of the facts.

We need a thorough and fair investigation of what happened and why and who was involved.

Normally, I'd go to the ranking member at this point. I think he's probably still held on the floor. Because of the importance of this, we want to start.

I will yield to the chairman of the appropriate subcommittee. I will then yield to Senator Specter. Should Senator Hatch wish to say anything, we'll yield to him.

Senator Schumer?

SCHUMER: Well, thank you, Mr. Chairman. And I want to thank you for the opportunity to speak and, more importantly, for your vital leadership on this critically important issue.

I also want to thank Senators Feinstein, Pryor and Lincoln, who raised the alarm about what went on in their states.

And I want to thank Mr. Sampson for coming here today voluntarily to shed some light on these events.

I just want to take a couple of minutes to note first what we've uncovered so far in this investigation, second what we can expect to accomplish today, and third where we expect to go from here.

First, let me comment on where we've been and how far we've come.

SCHUMER: It was only seven weeks ago that I chaired the first hearing on this issue.

Just seven weeks ago, the Department of Justice and most of my friends across the aisle were insisting we needed to keep a secretly passed provision in the Patriot Act that threatened to take the Senate out of the confirmation process for U.S. attorneys.

Since then, the Senate has voted 94-2 to return a vital check and balance to the U.S. attorney appointment process. And this week, the House voted overwhelmingly to do the same.

Just seven weeks ago, the Department of Justice was insisting we were making a big deal out of nothing. Since then, the attorney general's chief of staff has resigned, the official who made the fateful calls on December 7th has resigned, and the Justice Department's liaison to the White House has taken an indefinite leave of absence and asserted her Fifth Amendment right against self- incrimination.

In the last seven weeks, we've learned that Attorney General Gonzales was personally involved in the firing plan after being told that he wasn't. We've learned that the White House was involved after being told that it wasn't. We have learned that Karl Rove was involved after being told that he wasn't. And we have learned that political considerations were very important after being told that they weren't.

The list of contradictions, contortions and retractions grows longer every day.

Maybe no one has anything to hide, and everyone acted honorably. But it is sure hard to come to that conclusion based on the events of the past seven weeks.

I dare say that given the unbroken stream of mishaps, missteps and misstatements, the burden has shifted. It is now arguably up to the Department of Justice to show that it behaved well, not for us to show that it behaved badly.

All of these developments raise serious and troubling questions, which brings me to my second point: What can we expect today?

Many people in the Justice Department are pointing the finger at Kyle Sampson but today we hear Mr. Sampson's side of the story. For that reason, this is a very important hearing.

I hope and trust we'll learn more of the facts that have so far alluded us. Kyle Sampson was at the epicenter of all of this and should know those facts better than anyone else.

It is the logical next step in our investigation to have him here today. It's not the beginning, and it's certainly not the end. It's a very important step, but we may not even realize the importance of it until we hear from other witnesses and other facts come out.

I appreciate, again, Mr. Sampson's willingness to stay here for as long as we have questions, and I intend to take him up on that offer and pursue some lengthy, factual questioning when I have the opportunity to do so, so the hearing may last awhile.

SCHUMER: The purpose of today's hearing is not to find a smoking gun. The purpose is to build a factual base and to continue to figure out what went on. The purpose is not "gotcha." The purpose is, as they said in "Dragnet," just the facts, ma'am.

I hope we learn more about the involvement of the attorney general in all this. Based on the facts we already know, his situation is grave. Whether he was intimately involved in this debacle or just presided over a department that allowed it to happen and didn't know a thing, that's a pretty severe indictment.

Finally, whatever happens at this hearing, and, for that matter, whatever happens to Attorney General Gonzales, we have a duty to continue to ask questions and investigate until we're satisfied that all of the facts have been found. If we do anything less, we're abdicating our responsibility to the citizens who elected us and who wanted to trust, once again, that the Department of Justice enforces the law equally and without fear or favor.

PROTESTER: End the war now! Fund redeployment! Do not fund the war any longer!

(CROSSTALK)

SCHUMER; Ladies and gentlemen, we are waiting for other senators to return. There is one final vote, and then we won't be interrupted the rest of the day thanks to Senator Reid and the way he scheduled this. So we're going to take a brief recess.

(RECESS)

LEAHY: We've -- only because I'd like to see the witness, I'm happy to cooperate with the photographers, but I, kind of, like to see who I'm talking with.

I'm not sure what's happening on the floor. We're having a lot of votes that we weren't supposed to have. I would hope that that's simply because people are exercising their constitutional rights and not because, as they're all coming from the other side, whether these votes are those who wish we weren't going to have the hearing.

What I'm going to do is I'm going to swear in Mr. Sampson. When Senator Specter -- and be getting his statement. If Senator Specter gets here, of course, he'll have a chance to give his statement. He will take priority over everybody else.

Mr. Sampson, please stand and raise your right hand.

Do you solemnly swear that the testimony you're about to give in this matter shall be the truth, the whole truth, nothing but the truth, so help you God?

SAMPSON: Yes.

LEAHY: Thank you.

As I said earlier, Mr. Sampson, I appreciate you and your attorney cooperating to have you here. And I'd note, again, you appeared without us having to issue the subpoena, which I had signed.

Please go ahead.

SAMPSON: Thank you, Mr. Chairman.

As you know, I've come here voluntarily to answer your questions.

I've been a public servant for the past eight years. During the past several years, I've served Attorney General Gonzales in a staff position culminating in my service to him as his chief of staff.

In that role, I was responsible for organizing and managing the process by which certain U.S. attorneys were asked to resign. From that vantage point, I believe I was well-positioned to observe and understand what happened in this matter.

I can't pretend to know or remember every fact that may be of relevance, but I am pleased to share with the committee today those that I do know and those that I do remember.

After the 2004 election, the White House inquired about the prospect of replacing all 93 U.S. attorneys with new appointees. I believed, as did others, that less sweeping changes were more appropriate. The Department of Justice then began to look at replacing a limited number of U.S. attorneys in districts where, for a variety of reasons, the department thought change would be beneficial.

Reasonable and honest people can differ, and, in fact, did in various stages in the process, on whether particular individuals should be asked to resign. But the decision to ask them to do so was the result of an internal process that aggregated the considered collective judgment of a number of senior Justice Department officials.

I would be the first to concede that this process was not scientific, nor was it extensively documented. That is the nature of presidential personnel decisions.

But neither was the process random or arbitrary. Instead, it was a consensus-based process based on input from Justice Department officials who were in the best position to develop informed decisions about U.S. attorney performance.

SAMPSON: When I speak about U.S. attorney performance it is critical to understand the performance for a Senate-confirmed presidential appointee is very different than -- it's a very different thing than performance for a civil servant or a private sector employee.

Presidential appointees are judged not only on their professional skills, but also their management abilities, their relationships with law enforcement and other governmental leaders, and their support for the priorities of the president and the attorney general.

A United States attorney may be a highly skilled lawyer and a wonderful person, as I believe all of the individuals who were asked to resign are, but if he or she is judged to be lacking in any of these respects, then he or she may be considered for replacement.

The distinction between political- and performance-related reasons for removing a U.S. attorney is, in my view, largely artificial. A U.S. attorney who is unsuccessful from a political perspective, either because he or she has alienated the leadership of the department in Washington or cannot work constructively with law enforcement or other governmental constituencies in the district, is unsuccessful.

With these standards for evaluating U.S. attorneys in mind, I coordinated the process of identifying U.S. attorneys that might be considered for replacement. I received input from a number of officials at the Department of Justice who were in a position to form considered judgments about the U.S. attorneys.

These included not only senior political appointees, such as the deputy attorney general, but also senior career lawyers, such as David Margolis, a man who served justice for more than 40 years under presidents of both parties and who probably knows more about United States attorneys than any person alive.

I developed and maintained a list that reflected the aggregation of views of these department officials over a period of almost two years. I provided that information to the White House when requested and reviewed it with and circulated it to others at the Department of Justice for comment.

By and large, the process operated by consensus. When any official I consulted felt that an individual name should be removed from the list, it generally was.

Although consideration of possible changes had begun in early 2005, the process of actually finalizing a list of U.S. attorneys who might be asked to resign and acting on that list did not begin until last fall.

In the end, eight total U.S. attorneys were selected for replacement: Bud Cummins in mid-2006 and the other seven in a group in early December of 2006.

With the exception of Bud Cummins, none of the U.S. attorneys was asked to resign in favor of a particular individual who had already been identified to take the vacant spot. Nor, to my knowledge, was any U.S. attorney asked to resign for an improper reason. U.S. attorneys serve at the pleasure of the president and may be asked to resign for almost any reason with no public or private explanation.

The limited category of improper reasons includes an effort to interfere with or influence the investigation or prosecution of a particular case for political or partisan advantage. To my knowledge, nothing of the sort occurred here.

Instead, based on everything I've seen and heard, I believe that each replaced U.S. attorney was selected for legitimate reasons falling well within the president's broad discretion and relating to his or her performance in office, at least as performance is properly understood in the context of Senate-confirmed political appointees.

SAMPSON: Nonetheless, when members of Congress began to raise questions about these removals, I believe the department's response was badly mishandled. It was mishandled through an unfortunate combination of poor judgments, poor word choices and poor communication in preparation for the department's testimony before Congress.

For my part in allowing this to happen, I want to apologize to my former DOJ colleagues, especially the U.S. attorneys who were asked to resign.

What started as a good-faith attempt to carry out the department's management responsibilities and exercise the president's appointment authority has unfortunately resulted in confusion, misunderstanding and embarrassment.

This should not have happened.

The U.S. attorneys who were replaced are good people. Each served our country honorably, and I was privileged to serve at the Justice Department with them.

As the attorney general's chief of staff, I could have and should have helped to prevent this. In failing to do so, I let the attorney general and the department down.

For that reason, I offered the attorney general my resignation. I was not asked to resign. I simply felt honor-bound to accept my share of blame for this problem and to hold myself accountable.

Contrary to some suggestions I've seen in the press, I was not motivated to resign by any belief on my part that I withheld information from department witnesses or intentionally misled either those witnesses or the Congress.

The mistakes I made here were made honestly and in good faith. I failed to organize a more effective response to questions about the replacement process. But I never sought to conceal or withhold any material fact about this matter from anyone. I always carried out my responsibilities in an open and collaborative manner.

Others in the department knew what I knew about the origins and timing of this enterprise. None of us spoke up on those subjects during the process of preparing Mr. McNulty and Mr. Moschella to testify, not because there was some effort to hide this history, but because the focus of our preparation sessions was on other subjects; principally, why each of the U.S. attorneys had been replaced, whether there has been improper case-related motivations for those replacements and whether the administration planned to use the attorney general's interim appointment authority to evade the Senate confirmation process.

SAMPSON: As I see it, the truth of this affair is this: The decisions to seek the resignation of a handful of U.S. attorneys were properly made, but poorly explained. This is a benign, rather than sinister, story. And I know that some may be disposed not to accept it, but it's the truth as I observed it and experienced it.

And, Mr. Chairman, if I may just add, eight years ago I moved my wife and children here to Washington because I was interested in public service. And I came to work here for this committee first, for then-Chairman Hatch. And it was an honor for me to do that. And really, through serendipity I've had opportunities for other public service in the government.

And I believe in public service, and in all of my work in public service I've made every effort to operate openly and forthrightly and with integrity.

LEAHY: Mr. Sampson, I don't mean to cut you off, and we have given you extra time, as you know.

We have now what I believe is a final vote. Then I am going to turn the gavel over to Senator Kohl, while I go and vote. I will come back.

If you wish to add to the part that is cut out, certainly I'll give you the time. Thank you.

SAMPSON: Thank you, Mr. Chairman.

KOHL: Mr. Sampson, finish your statement.

SAMPSON: Mr. Chairman -- thank you, Mr. Chairman.

All I had to say -- all I wanted to conclude in saying is that I've come up here to testify voluntarily today because I believe in public service, and because I believe in the goodness of our political process.

I appreciated Senator Schumer saying this was not a gotcha. And I came here today because this episode has been personally devastating to me and my family.

SAMPSON: And it's my hope that I can come up here today, share with you the information that this committee and that the Congress wants and, frankly, put this behind me and my family.

And with that, I'm happy to answer any questions any senator may have.

KOHL: We will hold further proceedings until the chairman returns.

SAMPSON: Thank you.

(RECESS)

PROTESTER: Fire all the liars and bring the troops home now!

Fire all the liars and bring the troops home now!

America, stand up! Stand up! These are war criminals!

(RECESS)

LEAHY: Just to let everybody know what we're going to do, Mr. Sampson's on his way back in.

And I really apologize for the way this is going. Unfortunately, you never know what the Senate schedule's going to be.

If anyone's watching us, to understand, we've had a series of roll call votes. And a decision was made by anybody who might have been holding up the Senate that they will not. We've had the final vote. And now senators can stay here.

As I was saying as I was leaving, Mr. Sampson was making a personal comment, which we made sure got on the record. And I'm sorry I had to account for that. I made that vote by about 30 seconds.

I'm going to yield first to Senator Specter. We've already had some -- for his opening statement -- questions of Mr. Sampson. We'll yield for the opening statement to Senator Specter. I will ask questions and then Senator Specter will ask questions.

SPECTER: Thank you, Mr. Chairman.

SESSIONS: Mr. Chairman, did you forget me?

LEAHY: And also, I told Senator Sessions yesterday, as he's the ranking of the appropriate subcommittee, that following Senator Specter's statement -- he wasn't here when we made the opening statements earlier -- I'll yield to Senator Sessions.

SPECTER: I'm sorry to have missed your opening statement, Mr. Chairman, and the opening statement by Mr. Sampson. But as has already been said, we've been in the midst of roll call votes, with the final passage vote in process now on providing the $100-plus billion for the troops in Iraq. And I was on the floor and was deliberating as to how to vote.

So as soon as I could make up my mind, I came over for this subject.

It is my hope that this hearing today will provide some coherence, accuracy and veracity as to what has gone on here. We have very important questions that we have to find the answers to. We have to make a determination as to why these U.S. attorneys were asked to resign.

It is admitted that the president has the authority to replace U.S. attorneys for no reason, but I think there's a consensus that the president does not have a right to ask for resignations for a bad reason; that is, whether U.S. Attorney Carol Lam in San Diego was asked to resign because she was hot on the trail of confederates of Duke Cunningham. We don't know whether she was or not, but these hearings are designed to find that out.

We don't know whether or not U.S. attorney in New Mexico, Iglesias, was asked to resign because he refused to bring a fraud prosecution where there was no basis for it.

SPECTER: We have to make that determination.

We have to find out whether there was a calculated effort by the Department of Justice to use this provision in the Patriot Act to avoid Senate confirmation and Senate scrutiny on who the United States attorneys were.

So there are some really important questions to be determined.

And right now it is generally acknowledged that the Department of Justice is in a state of disrepair, perhaps even dysfunctional, because of what has happened, with morale low, with U.S. attorneys across the country do not know when another shoe may drop, whether they may be asked to resign for a bad reason if they're not exercising their discretion.

And it's vital that U.S. attorneys be able to exercise their discretion in good faith and make prosecutions, something I've had some experience with with myself.

And then we need to know what was the role of the attorney general. He has said that he was not involved in discussions, and that statement is apparently contradicted by e-mails.

Well, I'm not prepared to make a judgment on whether the attorney general should stay or go based upon what I read in the newspapers. I want to see him eyeball-to-eyeball at that witness stand and have a chance to ask him questions.

And there are serious questions beyond this U.S. attorneys issue. The national securities letter, one which this committee took up earlier this week, of really great importance on tools for law enforcement, whether they're being exercised properly with regard for civil liberties. And I think the attorney general has serious questions to answer on that.

And then there is the role that Mr. Rove played. And I think we ought to hear from him candidly, sooner rather than later.

I think we ought to try to get to the bottom of all these factual situations so that we can make a determination as to who ought to stay, who ought to go, and how the Department of Justice ought to perform on its very vital role in the national -- in the national interest.

I have discussed the issue of the participation by Mr. Karl Rove and Ms. Harriet Miers, Mr. Bill Kelley and others in the White House, I have discussed that with Mr. Fielding. And I have agreed with some of the president's conditions and disagreed with others.

I think that the president is wrong in insisting that there not be a transcript. I don't see how we can function without a transcript. If we do, we have a hearing and senators walk out and in perfectly good faith give different versions.

SPECTER: So it has to be written down. That's the essence of our judicial system.

I'm prepared to agree with the president that these White House officials ought not to appear before both bodies with so many members present. We can have a joint proceeding with a limited number of members; at least we can in my opinion.

And while the oath is also salutary, I don't think it's indispensable, because the penalty for a false official statement is five years, the same as for perjury.

And I would like to see the hearings in public but -- I think the public has a right know, but I think that is negotiable as well.

But we ought not to be at polar opposites and at swords' points between the White House and the Congress. We have to respect the executive privilege. The president is right when he says he needs to have unfettered information and his deputies telling him what their advice is without the fear of being hauled before a committee.

But we can balance that out, and there are some 73 appearances by similar executive officials since 1944. And Condoleezza Rice, as national security counselor, appeared under oath before a commission.

So let's work it out. Let's try to come to terms here to get the information this committee needs so we can make a judgment.

Thank you, Mr. Chairman.

LEAHY: Thank you.

And, Senator Sessions?

SESSIONS: Thank you, Mr. Chairman.

I spent 15 years in the Department of Justice, 12 as a United States attorney. And those were great, great years and there's nothing I enjoyed more or was more proud of then serving as United States attorney. The Department of Justice is one of the great departments in Washington.

I think sometimes presidents have not understood just how difficult the job of attorney general is. If you just look back at the history of the people that have served, there are many quite capable but had great difficulties because they had, I think, in some ways, less experience in that job then they needed to take it over.

Let me just say this. Mr. Sampson, I think you -- reading some of the e-mails -- and I certainly haven't read them all -- you understood I think pretty well the difficulties of removing United States attorneys.

They are removable.

SESSIONS: They do serve at the pleasure of the president. Everyone knows that.

In fact, in 1926, the Supreme Court found unconstitutional a postmaster statute that the Congress had passed to declare that Congress not only would advise and consent in the appointment of postmasters, but would advise and consent in their termination. And they said that denied the president the power to run the executive branch, and declared that part of it unconstitutional.

So that we know is a legitimate thing, that the president should supervise the United States attorneys. They are paid by the taxpayers. If they don't prosecute immigration cases in a certain district, who else will there be to prosecute those cases? No one but that United States attorney has the venue or the jurisdiction to prosecute the cases.

So the president must have the ability to control that and make sure that the laws are faithfully executed in our country.

I noticed that on -- in your -- one of your e-mails, you talk about you oppose the wholesale removal of all of the U.S. attorneys, correctly noting it would cause significant disruption in the Department of Justice. You noted that a suitable replacement must be found in consultation with the home state senators, and that Senate must confirm them.

Later on you talk about the appointment under the Patriot Act that might have obviated that confirmation requirement.

You noted that, "If a decision is made to remove and replace a limited number of United States attorneys, then the following might be considered for removal and replacement." And you named four.

SESSIONS: Later you suggested perhaps three, and said that if you would like to see more change, in effect, let me know.

So I think you are sensitive to those problems that have occurred. And perhaps had you been listened to more carefully, we wouldn't be in this fix.

You noted that you're concerned -- I am quoting your e-mail -- "I am concerned that to execute this plan properly, we must all be on the same page, be steeled to withstand any political upheaval that might result. If we start caving to complaining United States attorneys or senators, we shouldn't do it. It'll not be worth the trouble."

I think that might have been good advice for some people to listen to.

There's some inconsistencies in comments that have been made, Mr. Sampson. I think you're in the middle of a lot of that. Maybe you can shed some light on it.

I'm inclined to believe that I've never met finer people than those who serve in the Department of Justice. But the demands are great. The demand for integrity is important. So we'll give you a fair shake. I think the attorney general deserves a fair shake.

But there will be hearings, and we will get facts. And in the end I think the truth will come out.

Thank you, Mr. Chairman.

LEAHY: Thank you very much, Mr. Sessions.

Mr. Sampson, let me just get a couple preliminary things out of the way.

Did you bring any documents with you?

SAMPSON: I didn't.

LEAHY: Do you have any documents related to this investigation under your control or custody?

SAMPSON: I reviewed the documents that the Department of Justice made available to the committee. And perhaps the folks who are here with me today have copies.

LEAHY: No, but do you have anything in your possession, under control or custody, that has not been turned over to us?

SAMPSON: No, sir.

LEAHY: Now, since the 2004 election, did you speak with the president about replacing U.S. attorneys?

SAMPSON: I don't ever remember speaking to the president after the 2004 election.

LEAHY: So your answer would be no?

SAMPSON: Yes, no. I haven't spoken with the president since I worked in the White House.

LEAHY: Did you attend any meeting, then, with the president, since the 2004 election, where the replacement of U.S. attorneys was discussed?

SAMPSON: I did not.

LEAHY: Are you aware of any presidential decision document since the 2004 election in which President Bush decided to go ahead with the replacement plans for U.S. attorneys?

SAMPSON: I'm not aware of any.

LEAHY: Now, I'm going to give you a copy, or will provide you with a copy of a document. I'm actually going to go through a number of documents. And they're all -- they're OAG and then a whole series of zeros, and then a number. Just to make it easier, I'll just refer to them as OAG and the file number.

This is OAG-45. It's a copy of a December 4, 2006, e-mail exchange between you and Deputy White House Counsel William Kelley, copied to White House Counsel Harriet Miers. Is that correct?

SAMPSON: Yes, sir.

LEAHY: Now, Mr. Kelley's e-mail states, "We are go for the U.S. attorney plan. White House leg, political and communications signed off, acknowledged we have to be committed to follow through once the pressure comes." Is that correct?

SAMPSON: Yes.

LEAHY: Who headed the White House political operation at the time?

SAMPSON: Sara Taylor was the director of the Office of Political Affairs.

LEAHY: And was Ms. Taylor the overall head of the political operation?

SAMPSON: I understood that Ms. Taylor was the director of the Office of Political Affairs, and she -- that office, reported to Karl Rove, that ultimately reported to the president.

LEAHY: Who headed the White House communications operation at the time?

SAMPSON: I don't remember. I'm not sure if it was Dana Perino or -- I don't know, Senator.

LEAHY: Who headed the White House legal operation at the time?

SAMPSON: I think that the e-mail refers to White House leg, which is short for legislative affairs, and that was Candy Wolf, I believe.

LEAHY: Now, let me give you a copy of a document that's numbered OAG-40-43.

You notice the first page is a copy of a November 15, 2006, e- mail you sent to White House Counsel Harriet Miers. Her deputy, William Kelley, has copied the deputy attorney general, Paul McNulty. Is that what you were just handed?

SAMPSON: Yes.

LEAHY: The subject of the e-mail is, "USA Replacement Plan." The "USA" is referring to U.S. attorneys, is that right?

SAMPSON: Yes.

LEAHY: Attached there was a plan for the removal of a set of U.S. attorneys, including Paul Charlton, Carol Lam, Margaret Chiara, Dan Bogden, John McKay and David Iglesias, is that correct?

SAMPSON: Yes.

LEAHY: Now, in this e-mail, dated November 15, 2006, shortly after last fall's elections, you told Ms. Miers and Mr. Kelley that you had not informed anyone in Karl's shop which you considered a, quote, "pre-execution necessity," close quote. By "Karl," are you referring to Karl Rove?

SAMPSON: Yes.

LEAHY: In the e-mail, you asked Ms. Miers and Mr. Kelley to circulate the plan to "Karl's shop," is that right? Is that what you asked?

SAMPSON: Yes.

LEAHY: Do you know whether that was done?

SAMPSON: I believe that the previous e-mail that you provided me a copy of, OAG-45, indicates from Mr. Kelley that White House leg, political and communications have signed off. And the reference in the e-mail I drafted that's OAG-40 to Karl's shop was to the Office of Political Affairs at the White House.

LEAHY: But do you know whether then it was circulated to Karl's shop? I mean, your answer is it was, is that correct?

SAMPSON: I believe it was, yes.

LEAHY: OK.

And in the e-mail you write, "We'll stand by for a green light from you," is that correct?

SAMPSON: Yes, sir.

LEAHY: Now, you state in your e-mail that, quote, "You've consulted with the DAG" -- D-A-G -- close quote. That's the deputy attorney general, Mr. McNulty, correct?

SAMPSON: Yes.

LEAHY: Had you, by the time of your November 15 e-mail, discussed the replacement plan with the attorney general?

SAMPSON: I believe so.

LEAHY: You believe you had?

SAMPSON: Yes.

LEAHY: OK, let me give you a copy of a document number DAG-14. Now, this document contains Ms. Miers' response on November 15 to your e-mail that day, and your reply to her. You asked, quote, "Who will determine whether this requires the president's attention?" is that correct?

SAMPSON: Yes.

LEAHY: Did you get an answer to that question?

SAMPSON: No.

LEAHY: Who decided?

SAMPSON: I don't know.

LEAHY: Did the president reveal this plan for the removal and replacement of U.S. attorneys?

SAMPSON: I personally don't know.

LEAHY: You don't know either way? You've never heard either way.

SAMPSON: I don't know. That's correct.

LEAHY: And do you know today either way?

SAMPSON: I don't know.

LEAHY: Between this November 15 e-mail exchange and the December 4 e-mail from Mr. Kelley which informed you of White House leg and political and communications had signed off on the plan, did you have further communications with the White House regarding the plan to regard and replace several U.S. attorneys?

SAMPSON: I don't remember specifically. There was a Thanksgiving holiday in between there, and I just don't remember.

LEAHY: So you don't know whether you did or not?

SAMPSON: I don't remember if I did or not.

LEAHY: Let me give you a copy of the document numbered OAG-231.

LEAHY: That's a December 7, 2006, e-mail exchange between you and Mr. Kelley of the White House Counsel's Office, copying Scott Jennings, special assistant to the president, deputy director of political affairs, is that correct?

SAMPSON: I'm sorry, Senator. I was looking at the document.

LEAHY: Is this a copy of a December 7, 2006, e-mail exchange between you, Mr. Kelley of the White House Counsel's Office, copying Scott Jennings, special assistant to the president, deputy director of political affairs?

SAMPSON: Yes.

LEAHY: You received this e-mail from Mr. Kelley on the day seven of the U.S. attorneys were told to resign, asking you to talk to Scott Jennings about the particulars of Kevin Ryan's situation. He's one of the U.S. attorneys told that day to resign.

And did Mr. Kelley write, quote, "Karl would like to know some particulars as he fields these calls," close quote?

SAMPSON: Senator, I didn't remember this until looking at this document right now. But what I remember is that after Mr. Ryan was called and asked to resign, that some -- that the White House Office of Political Affairs had received some calls; that Mr. Ryan had called in some political chits, as it says there.

LEAHY: But my question was, does it say, "Karl would like to know some particulars as he fields these calls"? Is that in the e- mail?

SAMPSON: It is.

LEAHY: And that's Karl Rove?

SAMPSON: I assume so.

LEAHY: Do you have many other Karls spelled with "K"?

(CROSSTALK)

SAMPSON: I'm sorry, Mr. Chairman. I think it must have been.

LEAHY: OK.

And you responded by copying Mr. Jennings, asked him to call you, and then sent another e-mail to Kelley yourself, asking Kelley to forward something to Mr. Jennings.

What were you asking Mr. Kelley to forward to Mr. Rove's deputy?

SAMPSON: I don't remember, Mr. Chairman. It looks like I replied to both Mr. Kelley and to Mr. Jennings, and then again forwarded it to Mr. Kelley and asked him to forward it to Mr. Jennings. I don't remember why.

LEAHY: Well, I wish you did remember. It'd be awfully helpful.

My time is up. We're going to come back to this. And I would hope that you would search your memory as we go along.

Senator Specter?

SPECTER: Thank you, Mr. Chairman.

Mr. Sampson, first of all, thank you for coming in. It is not easy to be in your position. And to appear voluntarily is commendable. So thank you for doing that.

In the time I have on the first round, I want to take up two questions with you.

One is, was any United States attorney asked to resign because either that United States attorney was pursuing hot leads on corruption which somebody wanted stopped or whether any U.S. attorney was asked to resign because the U.S. attorney refused to prosecute cases which should not have been prosecuted?

And then I want to get to the question as to whether Attorney General Gonzales has been candid in his responses.

Starting off with U.S. Attorney Carol Lam, it has been reported that on the day that Ms. Lam was the subject of an e-mail from you raising an issue about asking her to resign, that she broadened the investigation to include the chairman of the House Appropriations Committee, and that the day before she had initiated search-and- seizure warrants.

SPECTER: And my question is: Was there any connection between those two events, the issuance of the search-and-seizure warrants, the broadening of the investigation to include a member of the House, chairman of the Appropriations Committee, and the e-mail which you sent saying, "We ought to be looking to replace Ms. Lam"?

SAMPSON: There was never any connection in my mind between asking Carol Lam to resign and the public corruption case that her office was working on.

SPECTER: Is it just a...

SAMPSON: I don't remember...

SPECTER: ... just a coincidence that you sent that e-mail saying, quote, "The real problem we now have with Carol Lam, that leads me to conclude that we should have someone ready to be nominated on 11/18, the day her four-year term expires"?

Now, admittedly, that's some time in the future. But if neither of those incidents was connected, what was the problem with Ms. Lam to ask her to resign?

SAMPSON: The real problem at that time was her office's prosecution of immigration cases. In the months...

SPECTER: And that's the sole reason she was asked to resign?

SAMPSON: No, sir. But at that time of that e-mail, that's what was in my mind when I said: "The real problem with Carol Lam that leads me to believe that she should be asked to resign when her four- year term expires."

SPECTER: Let me move on. Let me...

SAMPSON: In my mind, that was immigration enforcement.

SPECTER: Let me move on, then, to a situation with the U.S. attorney in New Mexico.

Your e-mails show that the name of David Iglesias was not added until November 7th, 2006, which -- he had not been on a list of anyone to be asked to resign.

SPECTER: But it was added on that day, which was the day of the election and after the calls had been placed to Mr. Iglesias.

Was there any consideration at all of asking Mr. Iglesias to resign because he refused to carry out a prosecution which you thought should have been carried out?

SAMPSON: Not to my knowledge.

In mid-October, as this process was being finalized, I went back and looked at a list -- at the list of U.S. attorneys whose four-year terms had expired to see if anyone else should be added to the list. And I did that in consultation with others at the Department of Justice, including Mike Elston, who is the deputy attorney general's chief of staff, the deputy attorney general and others.

And there were four U.S. attorneys who were added to the list sometime there in mid-October, and appeared on the list on November 7, or -- or during that period of time. And they were close cases. They were U.S. attorneys who, for a variety of reasons...

SPECTER: Mr. Sampson, I have your answer. And I need to move on because of the limitation of time.

SAMPSON: Very good.

SPECTER: Are you prepared to swear under oath that no U.S. attorney was asked to resign because the U.S. attorney was pursuing an investigation which you thought was too hot, or was failing to undertake a prosecution which you thought should have been made?

SAMPSON: To my knowledge, that was the case.

SPECTER: OK.

Well, let me turn to the issue as to the candor or truthfulness of the attorney general.

In his press conference on March the 13th, Attorney General Gonzales said that he was not involved in any discussions relating to the issue. But the e-mails show that on November 27th, there was a meeting which Attorney General Gonzales attended which took up the issues or, apparently, discussions on the U.S. attorney appointments.

Was your e-mail correct that Attorney General Gonzales was present at a meeting on November 21st, at which there were discussions about U.S. attorneys?

SAMPSON: I don't think the attorney general's statement that he was not involved in any discussions about U.S. attorney removals is accurate. And...

SPECTER: Is what? Is accurate?

SAMPSON: I don't think it's accurate. I think he's recently clarified it.

But I remember discussing with him this process of asking certain U.S. attorneys to resign. And I believe that he was present at the meeting on November 27th.

SPECTER: So he was involved in discussions, contrary to the statement he made at his news conference on March 13th?

SAMPSON: I believe yes, sir.

SPECTER: In the limited time I have remaining, I want to come to one final issue from this round. And that is the question of whether there was a calculation by the Department of Justice to use this new provision in the Patriot Act to avoid Senate confirmation or Senate scrutiny on replacement U.S. attorneys.

Without going into it now, because I have no time left but want to finish the question, isn't it true, as these e-mails suggest, that there was a calculation on your part and the part of others in the Department of Justice to utilize this new provision to avoid confirmation by the Senate and to avoid scrutiny by the Senate and to avoid having senators participate in the selection of replacement U.S. attorneys?

SAMPSON: Senator, that was a bad idea by staff that was not adopted by the principals.

I did advocate that at different times. But it was never adopted by Judge Gonzales or by Ms. Miers or any of the...

SPECTER: But it was adopted. It was your idea -- at least your idea, according to the e-mails.

SAMPSON: I recommended that at one point.

SPECTER: But you're saying that others didn't adopt it?

SAMPSON: I was the chief of staff, and I made recommendations of different options that the decision-makers might pursue. And I did recommend that at one point. But it was never adopted by the attorney general.

SPECTER: Was it ever rejected by the attorney general or Ms. Miers?

SAMPSON: It was rejected by the attorney general. He thought it was a bad idea and he was right.

SPECTER: Do you have an e-mail or any confirmation of that rejection?

SAMPSON: I didn't communicate with the attorney general by e- mail, so I don't.

SPECTER: Well, I'll pick this up in the next round. I think there's a lot more to it from the e-mails, which I'll get into in detail.

LEAHY: Thank you, Senator Specter.

I'm somewhat boggled because that's exactly the provision of the Patriot Act, now been repealed by the Congress, that was used. It was an idea never adopted by anybody. Somehow miraculously it was used, at least for eight of these U.S. attorneys.

Senator Schumer?

SCHUMER: Thank you, Mr. Chairman.

Again, Mr. Sampson, let me thank you for coming here voluntarily. I think that's most appreciated.

I want to follow up on Senator Specter's discussion about the attorney general and his involvement in the dismissal of these eight U.S. attorneys and these statements about it.

First, let's go over some of the attorney general's statements.

As you know, at a press conference on March 13th, the attorney general discussed this process of dismissing the U.S. attorneys and he said, "I never saw documents. We never had a discussion about where things stood." Was that statement accurate?

SAMPSON: I don't think it's entirely accurate what he said.

I don't remember if the attorney general ever saw documents. I didn't prepare memos for him on this issue.

But we did discuss it as early as -- before he became the attorney general, when he was the attorney general designate in January of 2005, I think; and then, from time to time, as the process was, sort of, in a thinking phase through 2005 and 2006. And then I remember discussing it with him as the process sort of came to a conclusion in the fall of 2006.

SCHUMER: So there were repeated discussions.

SAMPSON: Yes. And I think the attorney general clarified that a couple of days ago.

SCHUMER: Just want to get it clear.

So were there at least five?

SAMPSON: I don't remember specifically, but it would -- I spoke with him every day, so I think at least five.

SCHUMER: Yes, OK.

And you asked about the documents -- I asked you about the documents. You said you're not sure he's read a document. He received documents that mentioned this.

SAMPSON: I don't know that he did. I don't think the attorney general saw every iteration of the list.

SCHUMER: Let me ask you...

SAMPSON: And I'm not sure that he saw the replacement plan that I drafted.

SAMPSON: I don't remember if he did or not.

SCHUMER: The November 27th meeting that Senator Specter alluded to; he was there, right?

SAMPSON: Yes, I think so.

SCHUMER: OK.

And the purpose of that, according to the e-mails, was to discuss U.S. attorneys with you and other senior Justice officials, right?

SAMPSON: Yes.

SCHUMER: Was a document handed out at that meeting? Was there any paper?

SAMPSON: I don't think so. I had circulated the replacement plan to the deputy attorney general and others who were discussing this matter. And -- and we may have had it at that meeting, but I don't remember.

SCHUMER: Was there a discussion at the meeting?

SAMPSON: Yes.

SCHUMER: Did the attorney general participate in the discussion?

SAMPSON: I think so. I don't -- I don't remember the meeting clearly, Senator.

SCHUMER: OK. But your recollection is, he did speak at the meeting?

SAMPSON: Yes.

SCHUMER: OK. Now, that in itself says a whole lot.

At the same press conference, the attorney general also said, "The charge for the chief of staff here was to drive this process. And the mistake that occurred here was that information that he had was not shared with individuals within the department who were then going to be providing testimony and information to Congress."

The attorney general was referring to you as his chief of staff, correct?

SAMPSON: Yes.

SCHUMER: Was that an accurate statement that he made?

SAMPSON: Senator, I believe that -- that at no time did I ever intend to mislead the Congress, or mislead witnesses that were coming before the Congress. I think we mishandled the preparation for Mr. McNulty's testimony...

SCHUMER: Sir, I'm sorry to interrupt. I just am trying to get yes-or-no questions.

He said, OK, that the mistake that occurred here was that information you had -- Karl Sampson had was not shared with individuals within the department.

SCHUMER: Is that true or false?

SAMPSON: Senator, I shared information with anyone who wanted it. I was very open and collaborative in the process, in the preparation for Mr. McNulty and Mr. Moschella's testimony.

SCHUMER: So I want to ask, did you share information with Mr. McNulty and Mr. Moschella?

SAMPSON: I did.

SCHUMER: So the attorney general's statement is wrong. It's false. How can it not be?

If you shared information with Mr. McNulty and Mr. Moschella, and the attorney general is saying it wasn't shared with individuals in the department who were providing testimony, to wit Moschella and McNulty, his statement's false, correct?

SAMPSON: Senator, as I look back on that process, the problem was that we were focused on other questions.

SCHUMER: I understand but it's just...

SAMPSON: And I think any information that I didn't provide was...

(CROSSTALK)

SCHUMER: Time is limited.

SAMPSON: I'm sorry, sir.

SCHUMER: The statement is false, correct? The statement is false. There's no way to believe it's not.

SAMPSON: I don't think it's accurate if...

SCHUMER: OK, we'll leave it at that. It's not accurate.

SAMPSON: ... the statement implies that I intentionally withheld any information.

SCHUMER: Right. I'm not asking intent; I'm just asking whether it was false and you said it was inaccurate.

CORNYN: Mr. Chairman, I think it's not fair to the witness to not allow him to answer the questions and to continually interrupt and to ask whether something's true or false and...

(CROSSTALK)

LEAHY: If we could -- gentlemen, the senator from Texas is going to have a chance to follow up if he wants. If he feels they're not answered, he can follow up.

(CROSSTALK)

CORNYN: Mr. Chairman, it's not fair. This witness is testifying under oath and if the penalty of perjury is attached to this testimony, he ought to be able to answer the question fully and not be interrupted.

LEAHY: And this witness has said a couple dozen times that he doesn't remember on things, and we're trying to find what in Heaven's name he does remember. I'll let the senator from New York continue.

SCHUMER: Thank you.

And I think the questions are clear-cut, factual and demand some factual answers. And I'll continue.

CORNYN: And the witness ought to be allowed to answer the question fully.

SCHUMER: Similarly, DOJ spokesman, on March 24th, Ms. Scolinos, said the attorney general did not participate in the selection of U.S. attorneys to be fired.

SCHUMER: Was that an accurate statement?

SAMPSON: I don't think that's an accurate statement.

SCHUMER: Ms. Scolinos did say on that occasion that the attorney general did sign off on the final list. Was that an accurate statement?

SAMPSON: Yes, that's an accurate statement.

SCHUMER: OK.

And when did he sign off on the final list?

SAMPSON: I don't remember specifically. It was during this period in time when we had an ongoing discussion.

I remember that he asked me to make sure that I was consulting with the deputy attorney general, and that he agreed with the list of U.S. attorneys who should -- who we might consider asking to resign. And he also asked that I be sure to coordinate with the White House.

SCHUMER: Right.

Did the attorney general add or remove any names from the list at any time?

SAMPSON: I don't remember him ever doing that.

SCHUMER: OK.

Did you discuss with the attorney general the reasons or method for selecting individuals to put on that list?

SAMPSON: I don't remember specifically doing that.

You know, we had talked over the course of a couple of years about the strengths and weaknesses of U.S. attorneys, and he was more interested in making sure that senior department leaders agreed that that was the right list.

SCHUMER: But at some point in time you mentioned the names to him, right?

SAMPSON: Yes, I think so.

SCHUMER: OK.

So how could Mister -- Ms. Scolinos say he didn't participate at all in the -- quote, her words, "did not participate in the selection of the U.S. attorneys to be fired"?

SAMPSON: I can't really speak to what she said.

SCHUMER: OK. Thank you.

I have many more questions in this regard, Mr. Chairman, but I'm at a synapse here, so yield.

LEAHY: Senator Cornyn, I recognize you next.

CORNYN: Thank you, Mr. Chairman.

Mr. Sampson, in your written statement you say, "I believe the department's response was bad mishandled. It was mishandled through an unfortunate combination of poor judgments, poor word choices, poor communication and preparation for the department's testimony before Congress."

Is that your testimony today?

SAMPSON: Yes.

CORNYN: Mr. Sampson, for me, these next two questions are the most important part of this inquiry. I'm talking about for me personally.

In your prepared statement you explain that to your knowledge no United States attorney was asked to resign for an improper reason. You say that the limited category of improper reasons include an effort to interfere or influence the investigation or prosecution of a particular case for political or partisan advantage.

At any time were you approached by anyone with the administration with a complaint about a U.S. attorney that you would consider taken alone to be an improper reason to remove the individual?

SAMPSON: No, Senator, I don't remember anything like that.

CORNYN: I believe Director Mueller of the FBI testified a couple of days ago and was asked whether any of this -- these removals -- to his knowledge had provoked a response from an FBI agent to the effect that it had interfered with an ongoing investigation or prosecution, and his testimony was consistent with yours.

Am I correct that the Public Integrity Section of the Criminal Division oversees the department's efforts to combat public corruption through the prosecution of elected and appointed public officials at all levels of government?

SAMPSON: Yes.

CORNYN: At any point during the process that you were evaluating U.S. attorneys, did you have any direct contact with attorneys or other employees of the Public Integrity Section or supervisors in the Criminal Division in relation to the work of a particular United States attorney or a particular district?

SAMPSON: I don't remember that.

I spoke with Alice Fisher from time to time about various issues, but I don't remember speaking with her ever about the idea of identifying a set of United States attorneys who might be asked to resign. And I certainly didn't speak with her with the idea of identifying U.S. attorneys who might be asked to resign so as to influence a case for political reasons.

CORNYN: Mr. Sampson, the United States attorneys, are they the ones -- the ones that are appointed by the president, confirmed by the Senate, are those the ones who typically handle the day-to-day investigation and prosecution of public corruption cases or other serious crimes?

SAMPSON: It's my understanding that those sorts of cases are usually handled by career investigators and prosecutors.

CORNYN: Is there any -- is there any reason, to your knowledge, to believe that the -- that the replacement of a United States attorney with another individual appointed by the president, and confirmed by the United States Senate, would by -- in and of itself, tend to interfere or impede with any investigation into any criminal -- serious criminal matter that a U.S. attorney's office was investigating or prosecuting?

SAMPSON: Not to my knowledge.

My observation was that U.S. attorneys -- political appointees -- came and went. We had -- I had participated in the selection of all of the U.S. attorneys from the beginning of the administration and about half of them had already left office. There was much turnover in the U.S. attorney ranks.

And it had -- it never was my belief that a U.S. attorney changeover would have much influence at all on a particular case.

CORNYN: Mr. Sampson, why have you chosen to voluntarily appear before the committee today rather than invoke your rights under the United States Constitution, under the Fifth Amendment?

SAMPSON: Well, because I wanted to come up to the Senate and explain the facts as I understood them. I considered what the appropriate thing to do was, and for me, it was to come and testify here today.

CORNYN: At least one of the other people that worked with you at the Department of Justice has invoked her rights under the Fifth Amendment to the United States Constitution.

Do you have any -- any opinion with regard to why it is that a public servant working at the Department of Justice would find it necessary, when a civic committee is conducting an investigation, to invoke her rights against self-incrimination?

SAMPSON: Senator, I don't really.

It's no small thing to come up here and meet before this committee. But -- but I really wouldn't want to venture an opinion.

CORNYN: Well, Mr. Sampson, I -- I appreciate your testimony. And basically, there -- from everything that this committee has heard so far, at least what I've heard, there is no evidence that any of this replacement of U.S. attorneys was designed to or actually did impede a criminal investigation or prosecution.

If there was any evidence, I'd be the first one to be jumping down your throat. But I've heard no evidence of that.

I regret, if in fact at the end of this investigation there is -- continues to be no evidence of that, I regret the fact that dedicated public servants get caught up in politically motivated attacks against the administration or other individuals and find it necessary to have to hire lawyers and to invoke their rights under the Constitution not to testify, rather than risk perhaps prosecution for perjury or some other related criminal matter.

CORNYN: I think it's unfortunate. I really do. And I appreciate your testimony here today.

SAMPSON: Thank you, Mr. Chairman.

LEAHY: Thank you.

I'm not quite sure how to take that last statement.

We have investigations all the time. Obviously, if people don't commit perjury, they don't get prosecuted for perjury.

If everybody -- if they feel they might be the subject of a criminal investigation, they do have a constitutional right to take the Fifth.

CORNYN: Mr. Chairman, my only point was, I believe there was some implication that by invoking the Fifth amendment, that inference of guilt could be drawn from that. And I think that's an incorrect statement of law.

And I don't think any negative inference can or should be drawn from anyone invoking their constitutional rights.

LEAHY: My statement was that if somebody doesn't commit perjury, they don't get charged with perjury.

Senator Kohl?

KOHL: Thank you, Mr. Chairman.

Mr. Sampson, what has always made our country and justice system so special is our confidence in the independence and the integrity of our judicial system, of which the Justice Department, as you know, is an integral part.

Our Justice Department exists to serve the rule of law and justice, not some partisan political agenda.

So the firing of these eight U.S. attorneys has disturbed me and others greatly. I believe it tells us how far from this proud tradition of our democracy the administration has fallen.

The administration has fired nearly a tenth of our nation's U.S. attorneys, but retained the remaining 85 percent -- 85. What separated the 85 who remained from the eight who were dismissed?

Your e-mails, Mr. Sampson, appear to tell us the story. The U.S. attorneys you chose to retain had proven themselves to be, quote, "loyal Bushies," or, quote, "exhibited loyalty to the president and the attorney general," unquote.

This process strikes at the core of the integrity of our justice system.

When one of the U.S. attorneys in my state of Wisconsin brings an indictment, I do not want to worry, and I don't want our citizens to have to worry, that he did so for some crass political motives or to settle scores with some political opponent or to advance the agenda of his political party.

It is a sacred tenet of our democracy that politics must stay out of criminal prosecutions.

Merely by pursuing investigations and obtaining indictments, U.S. attorneys have enormous power to blacken reputations and destroy lives. To retain U.S. attorneys on the basis of loyalty to a political agenda, to fire other well-qualified and regarded U.S. attorneys whom the political echelons at the Justice Department and the White House suspected were not loyal Bushies strikes at the very heart of our system of justice.

So, I ask you, Mr. Sampson, what confidence can citizens have in the fairness of our system and the unbiased nature of decisions to prosecute, after reviewing what happened with the dismissal of these U.S. attorneys?

Isn't there tremendous damage done to the Justice Department and our entire system of justice when the appearance of partisan politics seems to trump the administration of justice?

SAMPSON: Senator Kohl, thank you.

I understand the concern that animates your question. Let me just say that, in my e-mails, by referring to loyal Bushies or loyalty to the president and the attorney general, what I meant was loyalty to their policies and to the priorities that they had laid out for the U.S. attorneys.

The president, at the beginning of the administration, launched a domestic policy initiative called Project Safe Neighborhoods, to increase federal gun prosecutions. If that's the example -- that's an example of what I was referring to.

I agree wholeheartedly that, with regard to particular matters and investigating cases, that United States attorneys and federal law enforcement officers have to take the facts as they find them and prosecute cases based on the facts and the law.

I understand -- my observation is that United States attorneys also have another role, which is, as political appointees, to promote the president's priorities and initiatives in the area of law enforcement.

SAMPSON: So I hope that my answer has given you that assurance that I shared that view as well.

KOHL: Well, partially.

What is the public's perception to be when somebody who is -- like Karl Rove, who is the ultimate political operative, the ultimate political insider, who's function is political almost by definition, is so involved in this process? What would you expect average people to think around the country other than the process is highly politicized?

SAMPSON: Senator, I wouldn't want to speculate on what the perception around the country is. I don't know.

(CROSSTALK)

KOHL: Well, can you disagree with people who might have the impression, however inaccurate, that the process is highly politicized when the ultimate political insider is so involved it in?

SAMPSON: Senator, if that is the impression that people have, then I regret it because that does bring harm.

KOHL: But isn't the job of -- ones of the jobs of people like yourself to do everything that they can to see that that impression is not given however accidentally?

SAMPSON: Senator, the answer is yes. And I failed in that, and that's what I resigned.

KOHL: We have heard the attorney general compare his management style to that of a CEO. He seems to have said in recent days that he was not involved in determining which U.S. attorneys would be fired or for what reason. And yet he did acknowledge that he signed off on the final list of terminations that you compiled.

In essence, he is saying that he permitted his deputies to fire almost 10 percent of the U.S. attorneys with almost no input from him at all.

Now, this is hard to believe.

Either the attorney general is simply absent as manager of the Justice Department, or he's not been candid with the American people about his participation in this firings. Which one is it or is there some other explanation?

SAMPSON: Well, as I said in a previous answer, the attorney general was aware of this process from the beginning in early 2005. He and I had discussions about it during the thinking phase of the process.

Then after the, sort of, more final phase of the process in the 2006 began, we discussed it. He asked me to make sure that the process was appropriate, that I was consulting with the deputy attorney general and others in developing the list.

And then ultimately he approved both the list and the notion of going forward and asking for these resignations.

KOHL: Mr. Sampson, the fact that you and your colleagues at the top echelons of Justice decided to fire these eight U.S. attorneys, individuals that you have referred to in your written statement to the committee as, quote, "good people," who, quote, "each served our country honorably," makes us wonder what exactly do the other 85 U.S. attorneys do to keep their jobs?

Were there any political discussions regarding any U.S. attorneys who were not fired that led them to pursue cases that they were not otherwise working on, or not to pursue cases that they were working on?

But again, you fired these who were otherwise good people, honorable people, doing nice jobs. You didn't fire any of the other 85. What is it about the other 85 that caused them not to be fired?

SAMPSON: Senator, to my knowledge there was no -- no U.S. attorney asked to resign for the purpose of influencing a particular case for a political reason.

My view was that these were political appointees, and that under the statute they serve four-year terms and then can hold over. And so with regard to all 93 U.S. attorneys, we didn't even consider U.S. attorneys who were in the midst of their four-year term.

So we only considered, in a collaborative manner among senior Justice Department officials, United States attorneys who had served more than four years, who had completed their term. And of that group, we identified a group of U.S. attorneys who, it was the considered judgment of folks, could be thanked for their service and that it would be beneficial to have a new U.S. attorney appointed.

KOHL: Thank you, Mr. Chairman.

LEAHY: Thank you.

Mr. Sampson, I should have noted at the beginning, obviously if you at some point in here need a break or something for a couple of minutes, (inaudible) following the normal tradition of this committee, you're aware of that and give us a signal?

SAMPSON: Thank you, Mr. Chairman.

LEAHY: And we'll make it -- we'll make it possible for you to go.

What I'm going to do in going back and forth -- and we decided at the last meeting (inaudible) Senator Cornyn spoke first for the Republicans. But I want to go by the list that Senator Specter has. And under that list, Senator Hatch will -- will go next. Following Senator Hatch, Senator Feinstein on our side.

It's also my intention, people can plan, to go somewhere between 12:30 and quarter of 1 and break so that you and your attorneys can have -- have lunch.

LEAHY: It will depend upon just where we are in the sequence of questioning. And we'll break for about one hour.

Senator Hatch?

HATCH: Well, thank you, Mr. Chairman.

One indication that the process was thorough and deliberative was that in your January 2005 e-mail, "rough guess" -- you used the language -- the rough guess was that you were going to retire about 15 to 20 percent, and in the end less than 10 percent were asked to resign.

So this process, as I understand it, took almost two years, is that correct?

SAMPSON: Senator, the issue was raised, you know, in early 2005 about whether all the United States attorneys should be removed and replaced.

HATCH: I remember that.

SAMPSON: It was my view, along with others, that that would not be appropriate and that we might consider as a management effort to identify a smaller subset of folks who might be asked to resign after their four-year terms had expired. And the process after that took a while.

None of the United States -- in January of 2005, none of the first class of Bush-appointed United States attorneys had served their four-year term. The first expirations didn't begin until the fall of 2005.

So during 2005, it was really a thinking phase in the process where we were just identifying U.S. attorneys where there were issues or concerns with them.

HATCH: I'm grateful that you agreed voluntarily to come here today. And I'm glad you're here primarily because you were in charge of this process of evaluating U.S. attorneys and recommending some for replacement.

One thing the administration's consistently said is that seven of the eight U.S. attorneys were asked to resign for performance-related reasons. Now, the only way properly to evaluate the administration's decisions is on the administration's terms. So it is very important, it seems to me, to understand how the administration defined that key word "performance" in this process.

You were in charge of the evaluation process and in making the recommendations. In that January 9th, 2005, e-mail you spoke of a desire to remove U.S. attorneys who you described as, quote, "underperformers," unquote. Now, how did the administration view this category of performance?

SAMPSON: Senator, as I said in my opening statement, it was not a scientific or quantitative analysis for identifying U.S. attorneys who might be considered underperforming.

HATCH: But it was more than looking at just statistics, right?

SAMPSON: Frankly, Senator, it wasn't -- it was looking at statistics in a few of the cases, but in other cases it was a process of asking leaders in the department, folks who would have a reason to have an informed judgment, who were U.S. attorneys that presented issues and concerns.

HATCH: Well, I want to be crystal clear on this.

Our Democratic colleagues here in the Senate and in the House claim that there were no performance problems by using a very narrow definition of that term. They say the only legitimate performance problem is one that shows up on the statistical evaluation conducted every three years.

So let me ask you again, just to be clear: When you evaluated the performance of U.S. attorneys, did you look only at statistical categories and written evaluations, or was your idea of performance much broader than that?

SAMPSON: To me and to others in the process, performance-related was much broader. It included production in the office, management abilities, extracurricular U.S. attorney work on the attorney general's advisory committee or other work in developing policies of the administration. It included not engaging in policy conflicts with main Justice.

It was a general process where I talked to senior leaders in the department and asked them, "If we were going to ask a handful of U.S. attorneys to resign so that others might serve, who would you have on your list?"

And so performance-related is a plastic term that included a lot of things to a lot of people in the front (ph).

HATCH: A lot of additional things than what you've just said here today, right?

SAMPSON: Yes, sir.

HATCH: Well, based on the broader definition of performance you actually used, do you believe that there was or that there were legitimate performance-related bases for asking several of these U.S. attorneys to resign?

SAMPSON: Yes, I believe that all eight were asked to resign for reasons related to their performance.

HATCH: You were in charge of this project. It was assigned to you. We have hundreds, even thousands, of pages of documents showing that you worked very hard on this project for approximately two years. I want to ask you to respond to some of the many claims and charges swirling around, most coming from the other side of the aisle.

HATCH: One of my Democratic colleagues said that the only -- that the only U.S. attorneys the administration fired are those who, quote, "are investigating Republicans or not investigating Democrats when somebody wanted them to," unquote. Is that true?

SAMPSON: To my knowledge, that was not a consideration in adding a U.S. attorney to the list.

HATCH: One of my Democratic colleagues said that when you were the attorney general's chief of staff, you actually admitted that U.S. attorneys were fired for political reasons.

Have you ever admitted such a thing? Or were any of them asked to resign for political reasons? Or should I say improper political reasons, because the president -- they serve at the president's pleasure?

SAMPSON: U.S. attorneys are political appointees. And, as I said in my opening statement, I think the distinction between performance-related and political is artificial.

I'm not aware of any of the United States attorneys being asked to resign for the improper political purpose of influencing a case for political benefit.

But I'm aware that some were asked to resign because they weren't carrying out the president and the attorney general's priorities. And in some sense, that may be described as political by some people.

HATCH: But that's also described as a performance situation.

SAMPSON: That's right.

HATCH: Some of my colleagues focus on one of these U.S. attorneys more than any other, claiming that Carol Lam was asked to resign as U.S. attorney for the Southern District of California because she was investigating and prosecuting the corruption case involving former Representative Duke Cunningham.

They say it flat out, so let me ask you flat out: Did you conclude that Carol Lam should be replaced because she was pursuing the Cunningham case?

SAMPSON: I did not.

HATCH: Here's one of the things that confuses me about this claim that Carol Lam was removed because of the Cunningham case, or any other case, for that matter. Any other cases?

SAMPSON: Not to my knowledge, sir.

HATCH: As I read the documents provided by the Department of Justice, you listed Carol Lam as a recommended replacement on a chart dated February 24th, 2005. Now that was several months before the Cunningham scandal even broke in the media, which was before federal investigators and prosecutors, as far as I can see, got involved.

And I see correspondence and other evidence that complains about her performance are coming in even earlier, in 2004, from House members.

HATCH: And Southern California newspapers reported in 2003 about the frustration of Border Patrol agents that Carol Lam's office was bringing so few prosecutions of smugglers of immigrants.

And complaints about her performance in 2003 and 2004 led to a February 2005 recommendation that she be asked to resign for performance-related reasons. It seems pretty reasonable, if those are true.

I guess I'm baffled how a case that did not even exist could somehow have been responsible for her removal. And that is the tale being spun by some that I've heard, who -- and I confess, I just don't understand it.

And reading the record correctly, when did concerns and complaints about Carol Lam's performance arise and what were they?

SAMPSON: Carol Lam is a good person and a very skilled lawyer.

HATCH: I agree with that.

SAMPSON: But she consistently appeared on the list that I aggregated, based on input from other senior Department of Justice officials, from the beginning of this process.

My recollection is that, in the beginning, it was due to her office's failure to embrace the president's anti-gun violence initiative, Project Safe Neighborhoods. The district in San Diego simply did not devote any resources to that initiative. And it was the subject of consternation in former Deputy Attorney General Jim Comey's office and early on through the process.

Later, in 2005 and 2006, the concerns about Carol Lam related to her office's immigration enforcement, in the context of the debate that was going on about comprehensive immigration reform.

HATCH: Well, thank you, Mr. Chairman. Sorry I went over a little bit.

LEAHY: Thank you.

Senator Feinstein?

FEINSTEIN: Thank you very much, Mr. Chairman.

I'd like to go back to your answers to Senator Specter's questions, when he asked you about the notice you received on the search warrant on May 10th, 2006, and you indicate -- and he asked you if that was related -- the real problem aspect was related to this case. And you said no, it was her immigration record.

FEINSTEIN: I'm sending -- asking my chief counsel to give you a letter and asking that that letter be also distributed to the committee as well as to the press. This is a letter dated February 15th...

LEAHY: And does the senator want that in the record also?

FEINSTEIN: I would. Thank you very much.

LEAHY: Without objection.

FEINSTEIN: ... September 15, 2007, signed by the director of field operations of the United States Customs and Border Protection Agency. It's sent to Carol Lam. And it is a letter of commendation, and I will just read a few sections.

"To address the alien enforcement issue, your office supported the implementation of the Alien Smuggling Fast Track Program, and has demonstrated a commitment to aggressively address the alien smuggling recidivism rate.

"In support of Border Patrol referrals for prosecution, your office maintains a 100 percent acceptance rate of criminal cases while staunchly refusing to reduce felony charges to misdemeanors and maintaining a minimal dismissal rate and supporting special prosecution efforts.

"In validation of enforcement initiatives, your staff aggressively prosecuted enrollees in the Sentry program who engaged in smuggling to support a zero-tolerance posture. They have focused on cases of fraud, special-interest aliens, prosecution of criminal aliens and supported our sustained disrupt operations.

"The prosecution's unit presented 416 alien smuggling cases, which represents a 33 percent increase over the 314 cases presented in '05. The prosecutions unit identified and pursued the prosecution of several recidivist alien smugglers and presented 30 non-threshold alien smuggling cases for prosecution, resulting in a 100 percent conviction rate. This represents a 329 percent increase over the seven non-threshold cases presented in 2005."

Additionally, a cumulation study done by USA Today places Carol Lam as one of the top three attorneys in the United States for the prosecution of these cases. It is a real surprise to me that you would say here that the reason for her dismissal was immigration cases.

Now, if I might go on, who, Mr. Sampson, was Dusty Foggo or is Dusty Foggo?

SAMPSON: I understand from news reports, Senator, and from general knowledge, that he was an employee at the CIA.

FEINSTEIN: And who is Mr. Wilkes?

SAMPSON: I don't know. I understand, again from news reports, that he's affiliated somehow with Mr. Foggo.

FEINSTEIN: And are you aware that on May 10th Carol Lam sent a notice to the Department of Justice saying she would be seeking a search warrant of the CIA investigation into Dusty Foggo and Brent Wilkes?

SAMPSON: I don't remember ever seeing such a notice.

FEINSTEIN: But the next day you wrote the e-mail which says, "The real problem we have right now -- right now -- with Carol Lam that leads me to conclude we should have someone ready to be nominated on 11/18, the day after her four-year term expires," that that relates to her immigration record.

SAMPSON: The real problem that I was referring to in that e-mail was her office's failure to being sufficient immigration cases.

FEINSTEIN: OK.

SAMPSON: The attorney general in the month before had been subject to criticism at his -- at a hearing in the House Judiciary Committee. And thereafter at the Department of Justice, in our senior management meeting with the deputy attorney general and others, there had been a robust discussion about how to address that issue.

The department was being criticized for not doing enough to enforce the border, largely by House Republicans. And the attorney general was concerned about it. And he asked the deputy attorney general to take some action to address that issue.

I recall also that the deputy attorney general was scheduled to meet with the California House Republicans, who were critical of Carol Lam, on May 11th.

FEINSTEIN: Let me just move on.

On January 13th, Dan Dzwilewski, the head of the FBI office in San Diego, said that he thought Carol Lam's continued employment was crucial to the success of multiple ongoing investigations.

FEINSTEIN: Did you call FBI headquarters and complain about those comments?

SAMPSON: I did. I called Lisa Monaco (ph), who serves as a special assistant to the director of the FBI, and asked her why an FBI employee was commenting on that issue.

FEINSTEIN: And why would you think that the special agent in charge in the area should not comment on whether her termination was going to affect cases?

SAMPSON: I understood that Carol Lam was a political appointee, and that a decision had been made in the executive branch to ask her to resign so that others could serve.

FEINSTEIN: OK.

I'd like to just go over a series of cases quickly, in the time I have remaining. I'll finish it on the next round if I don't have a chance.

Were you aware that Bud Cummins was looking at an investigation into Missouri Republican Governor Roy Blunt? I'm just asking if you were aware of that.

SAMPSON: I don't remember being aware of that.

FEINSTEIN: OK.

To the best of your knowledge, was the attorney general?

SAMPSON: I don't know.

FEINSTEIN: Were there any discussions that you heard that discussed this?

SAMPSON: No, I don't -- I don't remember being aware of that.

FEINSTEIN: OK.

Were you aware that Dan Bogden had opened a probe relating to Nevada Republican Governor Jim Gibbons?

SAMPSON: I don't remember being aware of that.

FEINSTEIN: You were not.

Were you aware that John McKay declined to intervene in a contentious governor's race in Seattle?

SAMPSON: I remember hearing about that back in 2005, I believe. But I don't really have any specific recollection about that. I may just have heard of that through news accounts.

FEINSTEIN: Were you aware that Paul Charlton had opened preliminary probes into Republican Congressmen Jim Kolbe and Rick Renzi before the November election?

SAMPSON: I think that I was aware of that through news accounts.

FEINSTEIN: And of what were you aware?

SAMPSON: That he had -- that there was some preliminary investigation of those two congressmen.

FEINSTEIN: OK.

And were you aware that David Iglesias had been overseeing an investigation of state Democrats?

FEINSTEIN: And let me just put a period -- question mark there.

SAMPSON: I don't remember being aware of that until, you know, the last month or so.

FEINSTEIN: Were you aware that calls were made to Mr. Iglesias?

SAMPSON: I was not aware of that.

FEINSTEIN: Were you aware that there were concerns with that case?

SAMPSON: I was not aware of any concerns with any particular case in New Mexico.

FEINSTEIN: My time is up. Thank you, Mr. Chairman. I'll continue in the next round.

LEAHY: Senator Kyl is not here. We'll go to Senator Sessions.

SESSIONS: United States attorneys have got to be strong people. They are given difficult challenges. They're not shrinking violets. Somebody criticized them, they're not likely to wither and run and hide. I think that's important to note. And I think every day, most of them go forward, almost universally, making tough calls that they believe are just and fair and take the consequences no matter what people say.

I just hate anything that suggests here that there are some serious problem with United States attorneys not doing what they think is right because I think daily they do.

This idea to remove a number of United State attorneys, did the attorney general object? Did he call to the White House and say, "This is not a good idea"?

You expressed some concern. Your initial numbers were three, maybe four to be terminated. Did he object to removing a United States attorney for -- to give someone else a chance?

SAMPSON: No.

SESSIONS: You know, attorney generals are lawyers for the president in one sense -- no this personal lawyer, but they're the country's lawyer. And I think sometimes they just have to say no. And I think a lot of attorney generals have, and maybe we would have been better off if there had been some explanation of the difficulties that you've raised here with this process had been conveyed further up in a firm way.

Why didn't they -- you did say earlier in 2005, which was the appropriate time to tell people they would be leaving -- they'd completely nearly four years at that time; most had. Why didn't you tell them, "By the time your four years is up, maybe September, October, later in the year, that we want to replace you and you need to be looking for something else"? Why didn't that happen?

SAMPSON: Well, Senator, to my recollection is the very first U.S. attorneys had not completed their four-year terms until September.

SAMPSON: And then for the next year, sort of September '05 to September '06, is when that first class' four-year terms expired.

SESSIONS: But wouldn't you have told them in January of '05 that they would be moving on later on in that year, when their four years's completed?

SAMPSON: That was never communicated, I think perhaps because...

(CROSSTALK)

SESSIONS: That's sort of part of the bungling, it seems to me. That would have been -- perhaps you said it should be done quietly, respectfully of the United States attorneys, but it really didn't happen that way, did it?

SAMPSON: No, sir.

SESSIONS: Now, I think we've got to talk about this November 27th meeting.

The attorney general himself said he was not involved in any discussions about what's going on. "We never had a discussion about where things stood."

Now, this was a pretty big meeting. Your e-mails indicate you understood the seriousness of -- at least politically, if not substantively -- of removing a number of United States attorneys. Memos had been sent out. A lot of people of key importance were at that meeting. Isn't it true?

SAMPSON: Yes.

SESSIONS: How long did it take?

SAMPSON: I don't remember the meeting being that long, maybe 20 minutes.

SESSIONS: And who all was there?

SAMPSON: I don't remember specifically, and perhaps the documents reflect this.

I remember specifically that the deputy attorney general was there, and I believe that one or two of his deputies. I believe that Monica Goodling, who was the senior counsel to the attorney general, and the attorney general and myself.

SESSIONS: And the attorney general stayed the whole time?

SAMPSON: I don't remember specifically.

I know that he was there at least for a portion of the meeting. I think he's acknowledged as much in the last couple of days.

I remember in my mind that it was in the attorney general's conference room. And that at the close of the meeting I went to follow the attorney general into his office, and the deputy attorney general called me back with a question. I have that recollection in my mind.

SESSIONS: Well, I don't think it was a small matter. And I think the attorney general -- I'm disappointed he didn't remember that in his statement.

Now, with regard to Senator Schumer asking you about preparing Mr. McNulty for his testimony, the deputy attorney general didn't know all the e-mails that have been produced here, and didn't know all the conversations you'd had with people in the White House or other offices, about these appointments, did he?

SAMPSON: He did not. And at the time that we were preparing Mr. McNulty, I didn't remember all of them.

SESSIONS: So you're not saying that you told him everything it later turned out he really needed to know to answer the questions honestly in the committee, and accurately?

SAMPSON: In the preparation for Mr. McNulty, we really focused on the issues of the day, the questions that the Congress had. And I remember that Mr. McNulty was focused on trying to provide the Congress the information it wanted.

And so we talked about why, the different performance-related reasons each of the U.S. attorneys made it onto that list.

We talked about whether the administration had ever made a decision to circumvent the Senate's confirmation process.

And we talked about whether, to any of the knowledge of anybody in those preparation sessions, any of these U.S. attorneys had made it on the list, in an effort to influence a case for an improper political reason.

That's what we really focused on at his preparation. We didn't focus on the historical origins of this process that is initiated at the White House.

SESSIONS: I can understand how that's possible, and...

LEAHY: Senator Sessions?

SESSIONS: Is the green light still on?

LEAHY: I'm sorry. I read it wrong. You're OK. Go ahead, please. I apologize.

SESSIONS: I can see how that's possible. But when he was asked those things and when he responded, in some instances incorrectly -- do you have any information that, at that time, he knew something different and was providing information to the committee that he knew was inaccurate?

SAMPSON: I don't.

SESSIONS: And so you believe he testified to the best of his knowledge when he testified?

SAMPSON: I think we collectively failed to prepare appropriately. And I felt some responsibility for that.

SAMPSON: And that's why I offered my resignation to the attorney general.

But I didn't intend to mislead Mr. McNulty or Mr. Moschella or the Congress. And I honestly don't think either of them intended to.

SESSIONS: Well, I just think we -- we want to get that straight if we can. And I appreciate your candor on that subject.

With regard to Carol -- I guess my time is up.

I would just say this: With regard to the FBI supervisor's comment that her presence as United States attorney was crucial to the success of corruption cases, he should have probably been disciplined for that, because it's not so.

She probably -- I would be amazed if she personally was trying those cases. United States attorneys turn -- turn over all the time. And I don't believe that that's an accurate statement. If it is, I'd like to see him make proof of that.

But I -- and if it comes up in this committee that what occurred had some tendency to block a legitimate prosecution, then people are going to be in big trouble with me and, I think, this Congress. But I assume and hope and pray that that was just an overreaction by him, to make a statement that was over the top...

LEAHY: Thank you, Senator Sessions.

SESSIONS: ... and I think it was not correct for him to do so.

LEAHY: Thank you.

Senator Cardin?

CARDIN: I thank you very much, Mr. Chairman.

Mr. Sampson, thank you for being here.

In your prepared statement, you indicate that one reason for dismissal would be the loss of trust or confidence of important local constituencies in law enforcement or government. And I want to ask you whether that played a role in the eight U.S. attorneys that were dismissed. But I'm particularly interested, quite frankly, in New Mexico and California. And I would appreciate if you could answer that somewhat briefly.

SAMPSON: Senator, the reason that eight U.S. attorneys were put on the list is -- was related to their performance. Related...

CARDIN: My question is, related to the concerns of the local political establishment?

SAMPSON: I understand.

What -- I understand that the eight were put on the list because of concerns related to their performance. I also understand that -- I know that at the time, the department knew that Congressman Issa and others were very critical of Ms. Lam.

I also have been reminded that the attorney general received three calls from Senator Domenici complaining about Mr. Iglesias, and that the deputy attorney general received a call from Senator Domenici complaining about Mr. Iglesias.

I'm not sure those things were on my mind when those names were added to the list. But they certainly may have been influential. I know that the department cares about the views of Congress...

CARDIN: But who would be the principal person that you -- advised you on who should go on the list? Who would be responsible for weighing the local political issues?

SAMPSON: Well, that wasn't a -- I don't believe that was specifically a consideration. I guess I just wanted to share with you that -- that looking back on this, as I sit here today, the department as a whole was aware of those complaints from those members of Congress. No one in the senior DOJ leadership who I was getting input from would be responsible for assessing the views of Congress specifically.

CARDIN: You mention in your testimony that, "I developed and maintained a list that reflected the aggregation of views of these and other departmental officials over a period of almost two years."

The chairman asked you in the beginning whether you had additional documents. Is this a document that would be available, that reflects these different views as relates to the U.S. attorneys?

SAMPSON: It wasn't one document. And it wasn't a -- it was in the context of a, sort of, a presidential personnel context, where I gathered information from various sources...

CARDIN: Did it include political information locally?

SAMPSON: I don't remember. I don't remember specifically looking for that or receiving that.

CARDIN: How did you arrive at eight as the number? Could it have nine, could it have been seven, could it have been 15? Was there a specific number you were looking for?

SAMPSON: There really wasn't.

In fact, in mid-October, after presenting the list to different DOJ officials, I remember asking, "Let's go back and look at all the remaining United States attorneys whose four-year terms have expired," which was another 30 maybe, "and see if there are any folks there that ought to be added to the list."

And I remember that four U.S. attorneys were added to the list at that time, relatively close cases, but ones that we could consider whether it would be beneficial or not to ask them to resign.

CARDIN: You indicate you compiled a list over two years, but it's not one document, it's numerous documents. Are those documents available?

SAMPSON: I don't personally have control of any documents. I don't work at the Justice Department anymore. I don't think they exist. They were lists that I kept and marked up and then threw away and a new list, so I believe that the...

CARDIN: So over two years you -- I'm a little bit confused. Your testimony says that, "I developed and maintained a list that reflected the aggregation of views of these and other department officials over a period of almost two years." Is that not accurate then?

SAMPSON: To be clear, it was not one list that was sustained through the two years. It was an...

CARDIN: And this list no longer exists?

SAMPSON: Senator, what it was -- the Executive Office of United States Attorneys prepares a running chart of all the United States attorneys, of when they were appointed, you know, and other U.S. attorneys who are in the pipeline to be appointed or are there on interim appointments. It's a master chart of the U.S. attorneys at that specific time. And...

CARDIN: But your statement said that it had an aggregation of views related, I assume, to the performance. And my question is whether that exists, and you're indicated it was more note-taking, and so you didn't maintain one consistent list over the period of two years.

SAMPSON: That's accurate. All I can say is that it wasn't scientific and it wasn't well-documented.

CARDIN: I want to get to perception here. Because I tell you, we all worry about perception. Perception and public confidence go hand in hand.

You acknowledge here that an inappropriate way to discharge a U.S. attorney would be for interference or influence the investigation or prosecution of a political case for political or partisan advantages.

You've also acknowledged that you were aware of what was happening in California at the time that the decision was made to ask for the resignation of the U.S. attorney.

You also acknowledge you were aware in New Mexico of the contacts that were made in regard to a sensitive decision on whether to prosecute or not.

CARDIN: Do you see a perception problem here?

SAMPSON: Senator, at the time, in my mind, I did not associate at all the idea of asking a U.S. attorney to resign and the idea that it would be done to improperly influence a case for...

CARDIN: Do you see a perception problem here, of the timing relative to the investigations and the U.S. attorneys that were selected?

SAMPSON: Senator, in retrospect, I do. And that -- I believe that it was a failure on my part. And I want to take accountability and responsibility...

CARDIN: You're saying the failure was the manner in which you handled it, but not the decisions that were made on the dismissal of the U.S. attorneys?

SAMPSON: I'm acknowledging, Senator, that it was a failure on my part, and others, but I will hold myself responsible for not -- for the lack of foresight that people would perceive it as being done to influence a case for an improper political reason.

CARDIN: And the impact...

SAMPSON: I didn't associate...

CARDIN: ... it's having on U.S. attorney's offices across this country?

SAMPSON: And I regret that.

CARDIN: You regret it.

Would you -- if you could do it over again, would you have a different list, no list, or what -- I'm not sure I understand what you're acknowledging to this committee: whether it's just a public relations problem in presenting it or whether it's a real problem in the method that was used to ask for the U.S. attorneys to resign.

SAMPSON: I guess I was just trying to answer your question.

I was acknowledging that, at the time, I personally did not take adequate account of the perception problem that would result.

CARDIN: Thank you, Mr. Chairman.

LEAHY: Thank you.

Is Senator Kyl coming back?

(CROSSTALK)

LEAHY: Well then, what we will do, is we will go to Senator Whitehouse at this point.

LEAHY: And then we will recess until quarter of 1.

Senator Whitehouse?

(UNKNOWN): Quarter of 1? Quarter of 2.

LEAHY: Quarter of 2. We were using -- I guess we weren't even using California time.

WHITEHOUSE: Thank you, Chairman.

LEAHY: Quarter of 2.

WHITEHOUSE: Hello, Mr. Sampson.

SAMPSON: Senator.

WHITEHOUSE: Could you tell me who, other than your family and your lawyers, you've discussed your testimony today with, before you came in here?

SAMPSON: No one.

WHITEHOUSE: Who had it been coordinated with, to your knowledge, other than your own lawyers and your family?

SAMPSON: No one. I've not spoken with anyone at the department or anywhere else.

WHITEHOUSE: When you were in charge of this project, did you keep a file on this project?

SAMPSON: I think it would be too much to say that I kept a file. In my lower right-hand desk drawer, I had the charts that I referred to in answering Senator Cardin's question. It was just, sort of, a drop file. It was changed in and out.

I think, in looking back and reviewing the documents in preparation for this testimony, I see that there were lots of lists at different times. But as I said to Senator Cardin, I didn't keep one list.

WHITEHOUSE: But did you keep one file where you kept information related to this project?

SAMPSON: Again, just as, sort of, a drop file in my lower right hand desk drawer.

WHITEHOUSE: Did somebody else keep it for you?

SAMPSON: No. There really was no file. There really was no documentation of this. It was an aggregation of views and various lists and notes at different points in time.

As the process finalized in the fall of 2006, it became a little more formalized, but only in the sense that we were working in the senior leadership of the department to finalize the list.

WHITEHOUSE: So this was a project you were in charge of, this was a project that lasted for two years, this was a project that would end the careers of eight United States attorneys, and neither you nor anybody reporting to you kept a specific file in your office about it?

SAMPSON: Senator, I didn't keep a specific file on this issue. I -- I guess I just don't want to associate myself with -- with the premise in your question that it ended the careers of eight U.S. attorneys. In my view...

WHITEHOUSE: Eight U.S. attorneys, in event.

SAMPSON: My view is they are good people and skillful lawyers and served well for four or five years...

WHITEHOUSE: But not U.S. attorneys.

Let me ask you a different question, if you know.

Is it true that a career attorney working for the Department of Justice who refuses to cooperate with an OPR or an OIG investigation, and who refuses to testify, is terminated as a result of refusing to cooperate?

SAMPSON: I don't know.

WHITEHOUSE: You don't know?

SAMPSON: I don't know.

WHITEHOUSE: Do you know if it's the policy of the Department of Justice that an officer of a corporation that is under investigation who refuses to cooperate and testify is required by the department -- the department requires the corporation to have that officer dismissed?

SAMPSON: I don't know.

I -- I understand that there are -- that the department has a policy with regard to the charging of corporations. But I'm not familiar with it. I'm not well-versed enough to answer your question.

WHITEHOUSE: We have a situation right now in which there is a employee of the Department of Justice who has asserted Fifth Amendment rights against self-incrimination with respect to their conduct in office at the Department of Justice. And that person has, as of the last I've heard, not been terminated.

In your recollection and to your knowledge, in the entire history of the Department of Justice, has there ever been an attorney working for the Department of Justice who asserted Fifth Amendment privileges against self-incrimination regarding their conduct in office who was not terminated and who was kept on as an employee and on the payroll?

SAMPSON: I've never looked at that question, and I don't know.

WHITEHOUSE: Are you aware that courts and juries are allowed regularly as a matter of standard practice to draw an adverse inference, it's called, from the assertion of Fifth Amendment privilege by a witness in a civil case?

SAMPSON: I've not researched that issue, and I don't know. And I wouldn't want to venture a guess here, today.

WHITEHOUSE: All right.

In your experience as an attorney, have you ever tried a criminal case?

SAMPSON: I have.

WHITEHOUSE: Where and when?

SAMPSON: In the Southern District of Florida in 2004, I was appointed a special attorney and went and tried a case down there.

WHITEHOUSE: That was the one case?

SAMPSON: Yes.

WHITEHOUSE: OK.