HOUSE JUDICIARY COMMITTEE, SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW HOLDS A HEARING ON THE DISMISSAL OF U.S. ATTORNEYS

MARCH 6, 2007

SPEAKERS:

REP. LINDA T. SANCHEZ, D-CALIF. CHAIRWOMAN

REP. JOHN CONYERS JR., D-MICH.

REP. HANK JOHNSON, D-GA.

REP. ZOE LOFGREN, D-CALIF.

REP. BILL DELAHUNT, D-MASS.

REP. MELVIN WATT, D-N.C.

REP. CHRIS CANNON, R-UTAH RANKING MEMBER

REP. JIM JORDAN, R-OHIO

REP. RIC KELLER, R-FLA.

REP. TOM FEENEY, R-FLA.

REP. TRENT FRANKS, R-ARIZ.

REP. LAMAR SMITH, R-TEXAS EX OFFICIO

WITNESSES:

WILLIAM MOSCHELLA,

PRINCIPAL ASSOCIATE DEPUTY ATTORNEY GENERAL,

DEPARTMENT OF JUSTICE

CAROL LAM,

FORMER U.S. ATTORNEY 

DAVID IGLESIAS, 

FORMER U.S. ATTORNEY 

BUD CUMMINS, 

FORMER U.S. ATTORNEY 

JOHN MCKAY, 

FORMER U.S. ATTORNEY 

DANIEL BOGDEN, 

FORMER U.S. ATTORNEY 

PAUL CHARLTON,

FORMER U.S. ATTORNEY

JOHN SMIETANKA,

FORMER U.S. ATTORNEY

REP. DARRELL ISSA, R-CALIF.

FORMER REP. ASA HUTCHINSON

FORMER DEPUTY ATTORNEY GENERAL GEORGE TERWILLIGER

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SANCHEZ: This hearing of the Committee on the Judiciary, Subcommittee on Commercial and Administrative Law will now come to order.

I will now recognize myself for a short statement.

In the wake of the Watergate scandal, a constitutional crisis that demonstrated the lengths to which our system of justice can be manipulated to achieve a political agenda, our nation made the decision that our law enforcement system should be free from the influence of politics. We decided that ideological partisanship has no place in the dispatch of justice.

Recently, we have seen troubling signs that this line is again being crossed. The question we are here to answer today is, are important decisions about our justice system being made for political reasons.

We recognize that U.S. attorneys serve at the pleasure of the president. However, in the past few months it appears that the Bush administration has exploited the change in interim appointment limits of U.S. attorneys by purging high-performing U.S. attorneys and replacing them with political cronies and inexperienced lawyers.

This purge is one more example of the administration's concerted effort to promote partisan politics over sound management. Time and time again, we have seen this president undermine the legal foundations of our constitutional system of government, particularly by seeking political advantage in areas that have traditionally transcended politics.

Congress must determine if, once again, competency in upholding the law is being sacrificed for political ideology. For example, Arkansas U.S. Attorney Bud Cummins was replaced with Timothy Griffin at the insistence of former White House counsel Harriet Miers. Mr. Griffin is a long-time Republican operative who has a thin legal record but substantial connections to the RNC and Karl Rove. I hope to learn today why the administration replaced an experienced and highly competent U.S. attorney with a partisan loyalist.

We also need to determine if the administration is making a systematic effort to curtail ongoing political corruption investigations. Former San Diego U.S. Attorney Carol Lam led the investigation of former California Representative Randy "Duke" Cunningham and his coconspirators, discovered pervasive and widespread political corruption and secured a guilty plea from Mr. Cunningham. Despite announcements of two related indictments just days before her departure, she was replaced with an interim appointee with almost no criminal law experience.

We must investigate whether U.S. attorneys are being retaliated against for their role in investigations of corruption. Last week we learned that shortly before the November 2006 elections, two congressional Republican members contacted former New Mexico Attorney David Iglesias regarding a corruption probe of a local Democratic elected official. I'm deeply concerned that an ethical violation has occurred here.

I am also concerned that John McKay, a former Seattle U.S. attorney, may have been fired to appease Washington-state Republicans who were angry over his failure to convene a federal grand jury to investigation allegations of voter fraud in the 2004 governor's race. And I have similar concerns that Paul Charlton, former U.S. attorney for Arizona, and David Bogden, former U.S. attorney for Nevada, faced retribution for their roles in political corruption investigations.

Specifically, it has been alleged that Paul Charlton was dismissed because he was investigating charges involving land deals and influence pedaling by sitting Republican congressmen, and there is speculation that David Bogden was ousted for investigating Governor Jim Gibbons' receipt of unreported gifts and payments in exchange for his help as a member of the House Intelligence and Armed Services Committees.

We have also convened this hearing to consider H.R. 580, legislation authored by my friend and colleague from California, Representative Howard Berman. This legislation would restore the necessary legislative response to restore checks and balances in the U.S. attorney appointment process. The Berman bill would reverse a new provision in the USA Patriot Act, allowing the attorney general to indefinitely appoint federal prosecutors through the end of the Bush administration without Senate confirmation.

To help shed some light on these issues, we have with us today a truly notable witness panel. We are pleased to have the six recently replaced former U.S. attorneys, William Moschella, principal associate deputy attorney general, Representative Darrell Issa, former Representative Asa Hutchinson and former Deputy Attorney General George Terwilliger. We also have two additional former U.S. attorneys, including the president of the National Association of Former United States Attorneys.

Finally, we are joined by an attorney from the Congressional Research Service who will discuss the CRS report that concludes that these mass firings in the middle of an administration are unprecedented in recent history. Accordingly, I very much look forward to hearing the testimony.

I would now like to recognize my colleague, Mr. Cannon, the distinguished ranking member of my subcommittee, for his opening remarks.

CANNON: Thank you, Madame Chairman.

This hearing is frankly two hearings rolled into one. The first hearing, the one the majority doesn't want to have, is entitled H.R. 580, restoring checks and balances in the confirmation process of U.S. attorneys. If the majority were serious about this hearing, we would be receiving testimony about whether it's wise to return to a policy that allows judges to make interim appointments of prosecutors that practice before them.

We could ask whether such practices raise ethical, constitutional or prudential concerns. We could discuss past instances when judges either refused to exercise their authority to appoint interim U.S. attorneys or abused the authority by appointing someone that was not qualified to serve in that position.

But the majority doesn't want to have that hearing. Instead, they want a show trial of recently-dismissed U.S. attorneys claiming disingenuously that the dismissals have something to do with the first hearing.

(INAUDIBLE)

U.S. attorneys serve at the president's pleasure, now and always. The president can dismiss a U.S. attorney for any reason or for no reason at all. How do we know this? President Clinton dismissed 93 U.S. attorneys in his first months in office, a purge that makes the dismissal of eight U.S. attorneys look like a rounding error. But were those dismissals inappropriate? No. Under Article 2 of the Constitution, it is the president's responsibility to see that the laws are faithfully executed. U.S. attorneys are at the heart of his leadership team, making sure the laws are enforced, consistent with his policies and priorities in each judicial district in the country. The president is entitled to have who he thinks will best do that job at all times. He deserves it and the nation deserves it.

Second, the president's explanations for the dismissals at issue today, though not required, are reasonable. The Department of Justice has explained to this committee the reasons for these dismissals. In every case, the president had a legitimate reason to believe that an infusion of fresh leadership would serve the country. Each of these U.S. attorneys had served the full four-year term to which they are appointed. Some had served more. Some of them had, in one area or another, for one reason or another, parted paths with the president in implementing one or more of his enforcement priorities. Others had presented other issues that prompted the president to want to try someone new. And in at least one case, the president just wanted to provide another qualified individual the opportunity to serve as a U.S. attorney.

These U.S. attorneys are entitled to their opinions, and those whose practices or positions differed from national policy may have had their reasons. But they were obliged to implement the president's priorities fully and to carry out their duties as the president saw fit. They were not entitled to their jobs. It is the president's responsibility to see that the laws are enforced. If he determines that he needs new leadership to fully achieve his priorities, he has a responsibility to obtain it.

Again, U.S. attorneys serve at the president's pleasure, not at their own. These U.S. attorneys do not debate this. Mr. Cummins' has stated that the president can remove a U.S. attorney for any reason or no reason or even an idiotic reason. I hope that wasn't in reference to the president, but we have had lots of presidents who have released lots of U.S. attorneys.

Mr. Iglesias has been quoted in the press as saying that even if he was "moved out strictly for political reasons, I'm OK with that." Speaking for the group as a whole, Mr. Iglesias has said that "we are not disgruntled employees." They recognize the president's prerogatives, and so should we.

Third, the record backs the president up. The Department of Justice has shown in briefings and other communications with the Congress that the president had legitimate reasons to opt for new leadership in these districts. Again, this is not to say that the sitting U.S. attorneys were all necessarily doing bad jobs, or any of them were doing bad jobs, but that the president has backed up his reasonable explanations with evidence for his belief that he could do better in achieving his priorities and that it was time for a change. Not a shred of hard evidence brought before me or this subcommittee has done anything to disprove that.

Loose accusations of political retaliation and favoritism have been recklessly bandied about without substantiation. Not a single public corruption prosecution or investigation has been slowed or halted because of these personnel decisions. On the contrary, ongoing prosecutions and investigations in these districts have moved forward regardless of the transition of leadership. It is simply a commitment to bring more new cases in the president's priority enforcement areas that has prompted the department to seek a change. This is laudable, it is appropriate and it should be respected.

What has been the response of the majority? To ignore the president's prerogatives, to ignore his sound explanations to turn these former public servants into political footballs and to run after the phantom notion that the president must have engaged in retaliatory hardball politics. The conclusion is clear. The president was entitled to make these changes in his leadership team. Even if we were to disagree with his reasons, he was entitled to make them. And in any event, his reasons were entirely reasonable. Accusations that these dismissals were motivated by the politics of retribution are false and do a disservice to the public.

Likewise, accusations that these dismissals were made to clear the way, to avoid Senate confirmation of U.S. attorneys are far from the mark. The only political maneuvering occurring here is that the majority, which is willfully disregarding the department's reasonable explanations to stir up a groundless partisan controversy and attempt to reverse some legislation that benefits the American people.

The Republican members of this subcommittee encourage the majority to avoid the temptation of political headlines and instead work to address the real problems the country needs to face. We stand ready, willing and able to work to achieve bipartisan results that will benefit the American people. It is time to pick up the work and stop loosing precious time on false issues and refusals to believe the truth.

And I yield back, Madame Chairman.

SANCHEZ: I thank the gentleman for his statement.

I would now like to recognize Mr. < Conyers, a distinguished member of the subcommittee and the chairman of the Committee on the Judiciary.

CONYERS: Thank you, Madame Chairman.

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

I want our friend, the ranking member of the subcommittee, Chris Cannon, to understand that this is not immaterial or irrelevant activities. It's been in the headlines, on TV, in the newspapers. The country is flooded with this. It's even been in the Senate Judiciary Committee.

Look this is not...

CANNON: Would the gentleman yield?

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

CANNON: The fact that the press needs something to make a big issue out of does not mean it should drive our deliberations and our processes because it's easy to report wild and vast allegations and yet as I think you'll see in this hearing, as we saw certainly in the Senate hearing, the substance is modest but it will still make the headlines.

CONYERS: I accept and receive the gentleman's admonitions.

Now I want him to rest more comfortably in his chair, because we are here to hear the measure that is before us. House Resolution 580, introduced by the gentleman from California, Mr. Berman and myself, and we have afforded you three witnesses for that purpose. I presume that you chose the witnesses or at least had something to do with it.

So don't think that we are not here for the legislative business which we have published and I hope that these hearings can adjust several important hearings.

The first is, what is the impact of these unprecedented series of forced resignations have had on our criminal justice system. The 94 United States attorneys' offices are the heart and soul of our federal law enforcement system and in many respects the crown jewel of the Justice Department.

The lawyers who work in these offices are the very best and brightest of our lawyers. It is absolutely critical that the U.S. attorneys who supervise them, whether chosen by Democrats or Republicans, it doesn't matter, be of unquestionable integrity and independence.

I have to question what sort of impact these firings have not only on the officers involved but every law enforcement official in the nation. How does this impact the continuity of our ongoing investigations? How does it impact the enforcement of our immigration laws, our gun laws, our drug laws, not to mention our public corruption laws? Can we really afford on-the-job training of law enforcement novices when the lives and safety of American citizens are so clearly at stake?

What can we learn about the real reasons these prosecutors were fired? I'm troubled when the justifications put forth for these firings change by the day in reaction to the latest revelation. What started out as performance-related firings quickly switched to failure to follow policy priorities. Yet as of today, nearly three months after these discharges, we have yet to learn of any documented evidence identifying any specific concerns that were raised with any of these prosecutors before they were discharged. That is no way to run an office, let alone a legal office responsible for life and death decisions.

What do these mass firings and the way that they were handled say about our present administration? Good and honest prosecutors appear to have had their reputations unjustly besmirched and they may have been threatened for telling the truth. They have been courageous to come before us and they've said that they were being fired for poor performance when the exact opposite seems to be true.

Ladies and gentlemen, for the purposes of honoring the five- minute rule, I will submit the rest of my statement.

And I thank the subcommittee chairwoman.

SANCHEZ: I thank the gentleman for his statement.

And without objection, other members' opening statements will be included in the record.

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

Before we call Mr. Moschella to the table to testify, I would ask the former U.S. attorneys we have subpoenaed to come to the table briefly.

I want you to know that we are going to ask Mr. Moschella to tell us what he knows about the reasons for your terminations, including what may have been said in various conversations and what may have been written in various reports. Mr. Moschella may be hesitant to discuss some of this information based on privacy or confidentiality interests ascribed to each of you.

On Wednesday, February 28 and Monday, March 5, I was briefed by the department concerning the alleged performance-related reasons for your termination. Today we are going to ask Mr. Moschella if he would repeat those reasons for us. However, for him to do so today, you would need to agree to waive any privacy or confidentiality interests to the statements made to me on February 28 and March 5 in that briefing.

Are you willing to such a limited waiver of your privacy and confidentiality interests?

And I also want to emphasize that this is totally voluntary. If any of you have reservations, we will respect that. We would not, of course, ask Mr. Moschella to improperly disclose grand jury or other investigative information of a sensitive nature in open session. And any of you who wish will have an opportunity to respond to Mr. Moschella.

Do we have your permission to have a limited waiver of those rights so that Mr. Moschella can repeat statements that were made in briefings to this subcommittee chair?

Let the chair indicate that all of the witnesses have assented by head nodding and verbal "yeses."

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

I am now pleased to introduce the witness on our first panel for today's hearing. William Moschella is the principal associate deputy attorney general for the Department of Justice. Prior to that appointment, he served as assistant attorney general for DOJ's office of legislative affairs. He was also chief legislative counsel and parliamentarian to the House Committee on the Judiciary.

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

Mr. Moschella, given the gravity of the issues we are discussing today and your role in these hearings and so there is no misunderstanding, we would appreciate it if you would take an oath before you begin your testimony. Do you object to doing so?

Please stand and raise your right hand.

Do you solemnly swear or affirm under penalty of perjury that the testimony you are about to provide the committee will be the truth, the whole truth and nothing but the truth so help you God?

Please be seated.

Without objection, your written statement will be placed into the record and we would ask that you limit your oral remarks to five minutes. You will note that we have a lighting system that starts with a green light. At four minutes, it turns yellow, and then red at five minutes.

After the witness has presented his testimony, subcommittee members will be permitted to ask one round of questions subject to the five minute limit.

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

CANNON: Madame Chairman, before Mr. Moschella proceeds, may I just clarify the scope of the commitment here.

My understanding is that Mr. Moschella, under questioning, can answer questions about the office and activity within the office as it relates to performance of the U.S. attorneys, but not about cases if any were -- did you discuss any cases with the congresswoman at all?

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

SANCHEZ: He may not discuss any pending cases.

CANNON: Did he discuss pending cases with you in that meeting?

SANCHEZ: I don't believe that he did.

CANNON: So, what he's going to be talking about under your questioning, apparently, is going to be statements he made to you in a meeting about the qualifications, the activities and the performance of these U.S. attorneys?

SANCHEZ: Correct. It will be statements that were made in the two briefings of members of this subcommittee as to the so-called performance-related excuses or reasons that they gave for requesting the resignation of the U.S. attorneys who will be testifying here.

CANNON: Thank you.

MOSCHELLA: Madame Chairman, just before I begin my opening testimony, I just want to make clear, I'm not sure about the previous exercise that we just went through. The Privacy Act has a specific exception in it with regard to a presentation before the Congress. And so to the extent that that was meant to be a Privacy Act labor, it's unnecessary in this context.

SANCHEZ: It doesn't hurt to have a backup plan, Mr. Moschella.

MOSCHELLA: Madame Chairman, Mr. Cannon, members of the subcommittee, I appreciate the opportunity to testify today.

Let me begin by stating clearly that the Department of Justice appreciates the public service that was rendered by the seven United States attorneys who were asked to resign last December. Each is a talented lawyer who served as U.S. attorney for more than four years and we have no doubt they will achieve success in their future endeavors, just like the 40 or so U.S. attorneys who have resigned for various reasons over the last six years.

Let me also stress that one of the attorney general's most important responsibilities is to manage the Department of Justice. Part of managing the department is ensuring that the administration's priorities and policies are carried out consistently and uniformly. Individuals who have the high privilege of serving as presidential appointees have an obligation to carry out the administration's priorities and policies.

United States attorneys in the field as well as assistant attorneys general here in Washington are duty-bound not to make prosecutorial decisions but also to implement and further the administration and department's priority and policy decisions. In carrying out these responsibilities, they serve at the pleasure of the president and report to the attorney general. If a judgment is made that they are not executing their responsibilities in a manner that furthers the management and policy goals of departmental leadership, then it is appropriate that they be asked to resign so that they can be replaced by other individuals who will.

To be clear, it was for reasons related to policy, priorities and management, what has been referred to broadly as performance-related reasons, that these United States attorneys were asked to resign.

I want to emphasize that the department, out of respect for the United States attorneys at issue, would have preferred not to talk about those reasons, but disclosures in the press and requests for information from Congress altered those best laid plans. In hindsight, perhaps this situation could have been handled better. These U.S. attorneys could have been informed at the time they were asked to resign about the reasons for the decisions.

Unfortunately, our failure to provide reasons to these individual United States attorneys has only served to fuel wild and inaccurate speculation about our motives. And that is unfortunate, because faith and competence in our justice system is more important than any one individual. That said, the department stands by the decisions. It is clear that after closed-door briefings with House and Senate members and staff, some agree with the reasons that form the basis for our decisions and some disagree. Such is the nature of subjective judgments.

Just because you might disagree with a decision does not mean it was made for improper political reasons. There were appropriate reasons for each decision.

One troubling allegation is that certain of these United States attorneys were asked to resign because of actions they took or didn't take relating to public corruption cases. These charges are dangerous, baseless and irresponsible. This administration has never removed a United States attorney to retaliate against them or interfere with or inappropriately influence a public corruption case. Not once.

The attorney general and the director of the FBI have made public corruption a high priority. Integrity in government and trust in our public officials and institutions is paramount. Without question, the department's record is one of great accomplishment that is unmatched in recent memory. The department has not pulled any punches or shown any political favoritism. Public corruption investigations are neither rushed nor delayed for improper purposes. Some, particularly in the other body, claim that the department's reasons for asking these United States attorneys to resign was to make way for pre- selected Republican lawyers to be appointed and circumvent Senate confirmation. The facts, however, prove otherwise.

After the seven United States attorneys were asked to resign last December, the administration immediately began consulting with home state Senators and other home state political leaders about possible candidates for nomination. Indeed, the facts are that since March 9, 2006, the date the attorney general's new appointment authority went into effect, the administration has nominated 16 individuals to serve as United States attorney and 12 have been confirmed.

Furthermore, 18 vacancies have arisen since March 9, 2006. Of those 18 vacancies, the administration: (1) has nominated candidates for six of them, and of those six, the Senate has confirmed three; (2) has interviewed candidates for eight of them; (3) is working to identify candidates for the remaining four.

SANCHEZ: Mr. Moschella, your time has expired. If you could just briefly conclude.

MOSCHELLA: Let me repeat what has been said many times before and what the record reflects. The administration is committed to having a Senate-confirmed United States attorney in every single federal district.

In conclusion, let me make three points. First, although the department stands by the decision to ask these United States attorneys to resign, it would have been much better to have addressed the relevant issues up front with each of them. Second, the department has not asked anyone to resign to influence any public corruption case and would never do so. Third, the administration at no time intended to circumvent the confirmation process.

I'd be happy to take your questions.

SANCHEZ: Thank you for your testimony.

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

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

Could you please summarize for the subcommittee the particular reasons with respect to each individual, Ms. Lam, Mr. McKay, Mr. Cummins, Mr. Bogden, Mr. Iglesias and Mr. Charlton, why they were asked to resign?

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

SANCHEZ: You have about four minutes to do so.

MOSCHELLA: I notice that two individuals are not here, and those individuals would have been in the management category...

SANCHEZ: We're interested solely in the individuals sitting behind you.

MOSCHELLA: ... just so the record is clear.

With regard to Carol Lam, a distinguished prosecutor and someone who did fulfill more than her four-year term, there were two basic issues. It has been a priority of the Department of Justice and this administration, both in violent crime and in immigration. In violent crime, Project Safe Neighborhoods, which is our landmark anti-gun program, has been talked about by the president, by the attorney general, in conferences, at U.S. attorneys meetings. And quite frankly, her gun prosecution numbers are at the bottom of the list. She only beat out Guam and the Virgin Islands in that area.

On immigration, it's been reported in the press after our briefings with the Senate Judiciary Committee that her numbers for a border district just didn't stack up. The president of the United States, this administration, has made immigration reform a priority and those on the border, in these border districts, have a responsibility there and to the rest of the country to vigorously enforce those laws.

SANCHEZ: Mr. McKay?

MOSCHELLA: With regard to Mr. McKay, the department really had policy differences and were concerned with the manner in which he went about advocating particular policies and we'll get into the details of information sharing, but he spent quite a considerable amount of time advocating for a particular system, basically advocating that the Justice Department give our good housekeeping seal of approval for this particular system, but we decided, because various jurisdictions around the country have different systems, that we would plug our pipe -- one DOJ pipe in which we share with state and local governments -- to those systems.

SANCHEZ: Mr. Cummins?

MOSCHELLA: I think Mr. Cummins' situation has been well- documented. His was not for performance-based reasons. I'll just refer to, in the interest of time, the deputy attorney general's testimony a couple of weeks ago in the Senate.

SANCHEZ: We'd like to get the information on the record here, if you don't mind.

MOSCHELLA: It may take a little bit longer than the minute and 35 seconds that I have, but Mr. Cummins was -- the administration asked Mr. Cummins to move on only after we knew that -- you know, he had indicated he was not going to serve out the remainder of his term -- a qualified individual who had served both as a prosecutor at main Justice and in his district, was coming back from Iraq after serving his country for a year in Mosul, not in the green zone, and prosecuting over 40 JAG-related cases there, was interested in a U.S. attorney position.

Mr. Griffin was considered for the other district in Arkansas earlier in his tenure, was interviewed. He had gone all the way through the process and likely would have been the candidate. He would have but for the fact that he took another position, he probably would have been the U.S. attorney in that other district. So it was clear that he was interested in a position and given the knowledge that Mr. Cummins was not likely to serve out the remainder of his term, because there had been at least one press report that I'm aware of where that was indicated.

SANCHEZ: OK. Mr. Bogden? I'm sorry to hurry you along, but we have limited time here. If you could please get through the final three as briefly as you can. Mr. Bogden?

MOSCHELLA: Sure.

The general sense in the department about Mr. Bogden is that given the importance of the district in Las Vegas, there was no particular deficiency. There was an interest in seeing new energy and renewed vigor in that office, really taking it to the next level.

It's important to note that the reason why this process was undertaken was really to ensure that in the last two years of this administration we were fielding the best team possible, and that's what the attorney general was doing when we -- as we reviewed these.

SANCHEZ: OK. Mr. Iglesias?

CANNON: Pardon me, Madame Chairman. We're going to have a large number of witnesses and many people here who want to participate. I don't mean to be a skunk to the party, but if we do the five-minute rule, we're probably going to get through more quickly.

SANCHEZ: OK.

WATT: Madame Chair, I'd be delighted to yield the gentlelady my time for questioning and pass, because I think we need this information in the record.

SANCHEZ: I appreciate that, Mr. Watt. I understand that.

WATT: I yield the gentlelady my five minutes.

SANCHEZ: OK. Thank you, Mr. Watt.

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

MOSCHELLA: Sure. And it is difficult to do it in such a short time frame. As you know, our briefing took about 40 or 50 minutes.

SANCHEZ: Right. I think you can distill that, though, to the heart of the matter fairly quickly.

MOSCHELLA: I will.

SANCHEZ: It's usually a one or two sentence reason.

MOSCHELLA: There was a general sense with regard to this district, again, Mr. Iglesias had served, as they all did, the entire four-year term, that the district was in need of greater leadership. We have had a discussion about the EARS Report, and the EARS Report does pick up some management issues and Mr. Iglesias had delegated to his first assistant the overall running of the office. And, quite frankly, U.S. attorneys are hired to run the office, not their first assistants.

SANCHEZ: OK. And Mr. Charlton?

CHARLTON: I would put Mr. Charlton more in the policy category. Mr. Charlton had undertaken in his district a policy with regard to the taping of FBI interviews and set a policy in place there that had national ramifications. It did not go through the whole policy process. It has implications for prosecutions, for law enforcement agencies, the bureau's sister agencies at ATF, DEA, Marshals, ICE, CBP and the like, and that was just completely contrary to the way policy development occurs in the Department of Justice.

Furthermore, on the death penalty, we have a process in the Department of Justice. It is the one area that is non-delegable by the attorney general. And Mr. Charlton, in a particular case, was told and was authorized to seek in a particular case. He chose instead to continue to litigate after that long and exhaustive process, going from his career people to him to the criminal division, the Capital Case Unit, which comes to the recommendation of the deputy attorney general's office, and then the attorney general.

SANCHEZ: Thank you, Mr. Moschella.

I'm going to reserve the balance of Mr. Watt's time an turn to my ranking member, Mr. Cannon, for questions.

CANNON: May I -- I don't think that you can reserve time. I think that Mr. Watt has to use it. You can return it to Mr. Watt and he can ask questions or yield back.

WATT: I'd be happy to take it back and at an appropriate time re-yield it to you if that...

CANNON: I don't think that you can hold time. We may go a second round, which is perfectly appropriate.

I don't mean to be a stickler here, but we have lots of folks that have lots of questions and lots of witnesses.

WATT: It's my time, and I can take it...

(CROSSTALK)

WATT: When my turn comes, I can take it. I don't know that there is anything in the rules that prohibits me from taking the rest of my time.

CANNON: I think that the normal procedure would have been for me to take time. If you wanted to give...

WATT: If you had objected to my yielding it to the chair at that moment, she might have had to take it in my time slot, but you didn't object.

CANNON: No, that is correct. I did not object because of our personal relationship, but once your time is granted, I think you lose that time for the round.

WATT: I don't think so.

CANNON: So if you want to take time -- I think that's the rule. But this is -- I don't mean to be a stickler here. If you want to take the time, fine. But I'd like to...

(CROSSTALK)

WATT: Well, why are we talking about this if you don't mean to be a stickler?

(CROSSTALK)

SANCHEZ: We'll take that issue...

(CROSSTALK)

(GAVEL)

SANCHEZ: Excuse me.

We will take that issue under advisement.

In the meantime, Mr. Cannon, you will be recognized for your five minutes to ask questions.

CANNON: Thank you very much.

Thank you, Mr. Moschella, for being here.

I am one of your great admirers. I appreciated working with you here on the committee where you served as parliamentarian and legal counsel to the committee for several years. In fact, how long did you serve on this committee?

MOSCHELLA: Since '98 to 2003.

CANNON: Thank you.

Great service. We appreciate it on the committee. And we appreciate your being back here. And I want to thank you for your very thoughtful statement in a difficult environment and give you a chance, first of all, to add anything that you'd like in particular.

I know that you were a little bit rushed, but you did mention Lam's prosecution or low-end number of prosecutions on the firearms issues. Can you elaborate on that a little bit, please?

MOSCHELLA: Well, when the president ran for election, one of the cornerstone priorities that he had was preventing violent crime. We do so through our Project Safe Neighborhoods Program. Congress has appropriated millions and millions of dollars for this program over the last several years.

Our firearms prosecutions have gone up I believe over 70 percent over the time of this administration and we expect the U.S. attorneys to follow in those priorities. The U.S. attorneys hear about those priorities at conferences, PSN conferences, at U.S. attorneys conferences, through memos and other forums. Indeed, at one of the PSN conferences, President Bush gave a videotaped presentation about the importance of prosecuting violent criminals.

CANNON: And how did Ms. Lam's district rank in terms of number of prosecutions during the relevant period?

MOSCHELLA: I don't have the numbers committed to memory, but she was 91st out of 93 districts.

CANNON: And the other districts were -- do you recall what 92 and 93 were?

MOSCHELLA: Guam and the Virgin Islands.

CANNON: Places that don't have the kind of significant crime that we have in Southern California.

MOSCHELLA: And certainly don't have the significant resources of the Southern District of California.

Let me say, I think every U.S. attorney will say, "I have resource problems." And it's true. Congress in the past several years has not funded the president's request and we actually got a pretty good appropriation out of the joint resolution. So there are strains, and we have set specific priorities.

That said, these are high administration priorities and we expect that those priorities be fulfilled.

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

MOSCHELLA: Well, at about the 2004, 2005 time frame, just at the time, coincidentally, that the administration is really gearing up to make its case on the Hill for comprehensive immigration reform, the numbers in that district dropped precipitously, and it was because of a policy instituted to focus on, and I know Ms. Lam will say, on higher priority prosecutions.

The truth is, on the border we need to prosecute these cases before they become interior problems. And I understand prioritizing, but we have made this a priority for the border, and to have both components of comprehensive immigration reform work, the guest worker program and enforcement, you need them both, and the Congress has put a lot of resources towards this effort. We've put more resources on the border. We can always use more, but the other border districts did substantially more.

CANNON: Since time is limited, let me just clarify. You are speaking in terms of Ms. Lam's priorities and what she thought was higher priority, and then you went on to talk about what we needed. When you talk about what we needed, you're talking about what the president has directed, what the attorney general has directed and what the Department of Justice was telling Ms. Lam to do. Is that not correct?

MOSCHELLA: That's right. And quite frankly, members of Congress, some from the House, some from -- at least one in the Senate, Senator Feinstein, wrote specifically about this issue, the concern that the San Diego area, which is an extremely important sector and port of entry, that it not become kind of a magnet for these coyotes and other smugglers.

CANNON: And did it become a magnet?

I see my time has expired.

WATT (?): Madame Chair, I ask unanimous consent to yield the gentleman one minute of my time.

CANNON: And I'll just let the witness answer the question.

SANCHEZ: Will you please restate the question, Mr. Canno?

MOSCHELLA: Did it become a magnet?

CANNON: In other words, was there change in the patterns at the border?

MOSCHELLA: Well, I know that the border patrol and others in that area were very concerned about the numbers of apprehensions made and the number of prosecutions that were declined. So I don't have a specific figure for you. But when you lower the prosecutions, the deterrence level certainly will go down.

SANCHEZ: The time of the gentleman has expired.

The chair now recognizes the gentleman from Michigan, Mr. Conyers, for five minutes.

CONYERS: Thank you.

This is a little bit astounding. Here we have the greatest corruption prosecution in the end of the 20th century and 21st century by Ms. Lam, and you say she rates so poorly that we're going to have to improve her office by replacing her.

This past Sunday, Mr. Moschella, on interviews with the Justice Department officials, the "New York Times" reported that discussions began in October about removing U.S. attorneys and that after a list was identified, it was presented to Attorney General Gonzales and Deputy Attorney General McNulty. Is that correct?

MOSCHELLA: That's generally correct. There was a process, starting in October...

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

Who inside the department was involved in the discussions to identify the U.S. attorneys to be removed?

MOSCHELLA: Well, the discussion occurred in really a collaborative way between the attorney general's office...

CONYERS: Yourself?

MOSCHELLA: No. I joined the deputy's office in October, on October 3, just about when this process began.

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

MOSCHELLA: The chief of staff was involved.

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

MOSCHELLA: That's correct.

CONYERS: Monica Goodling, in the office of the attorney general?

MOSCHELLA: Yes, sir.

CONYERS: And who else?

MOSCHELLA: I would say that was probably the core group, and then at certain stages other folks...

CONYERS: What about Michael Battle?

MOSCHELLA: As I was saying, some may have been consulted to obtain either information or...

CONYERS: Yes. What about Michael Battle?

MOSCHELLA: Yes, he was consulted.

CONYERS: OK. And he has since resigned as head of the executive office of the U.S. attorneys?

MOSCHELLA: I think he's got another couple weeks on the job. But to the extent that the question somehow implies that he is being forced out, nothing could be further from the truth.

CONYERS: Well, I haven't implied anything.

MOSCHELLA: Not you. But it's implied. We've received many...

CONYERS: Look, we're not reviewing the media right now. I just am trying within this limited time to get some responses from you.

You were involved subsequently, though, in these discussions. Am I right?

MOSCHELLA: That's right. I was involved in the discussions.

CONYERS name=ctx20>>: Did you consult former DOJ officials, like James Comey?

MOSCHELLA: I don't believe Mr. Comey was consulted.

name=ctx19>< CONYERS name=ctx21>>: Well, was anyone at the White House consulted or did they offer any input in compiling the list of U.S. attorneys to be terminated, to the best of your knowledge?

MOSCHELLA: The list was complied at the Department of Justice.

name=ctx20>< CONYERS name=ctx22>>: Was the White House consulted?

MOSCHELLA: Well, eventually, because these are political appointees...

name=ctx21>< CONYERS name=ctx23>>: Sure.

MOSCHELLA: ... which is unremarkable, send a list to the White House, let them know...

name=ctx22>< CONYERS name=ctx24>>: I understand.

MOSCHELLA: ... our proposal and whether they agreed with it.

name=ctx23>< CONYERS name=ctx25>>: The answer is yes. Your answer is yes?

MOSCHELLA: Yes.

name=ctx24>< CONYERS name=ctx26>>: All right. I believe that's ordinary process.

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

MOSCHELLA: Our contact is the counsel's office.

name=ctx25>< CONYERS name=ctx27>>: Who is that?

MOSCHELLA: Specifically who in the counsel's office?

name=ctx26>< CONYERS name=ctx28>>: Well, is it true that it was the White House that asked that you find a position for Mr. Rove's former deputy, Mr. Timothy Griffin?

MOSCHELLA: If you mean you as in me, personally...

name=ctx27>< CONYERS name=ctx29>>: You, as in Mr. Moschella.

MOSCHELLA: No.

name=ctx28>< CONYERS name=ctx30>>: But what about the department?

MOSCHELLA: There was a point in time when, before Mr. Griffin had come back from Iraq, and knowing that he would be returning from his service in Iraq, that the counsel to the president communicated and asked is there...

name=ctx29>< CONYERS name=ctx31>>: So your answer is yes...

(CROSSTALK)

SANCHEZ: The time of the chairman has expired.

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

MOSCHELLA: I don't know if we got it all. There was a communication about whether or not there was a place for Mr. Griffin and, obviously, he had already been considered for the other district in Arkansas, so there is an interest in allowing him to continue to serve his country in that capacity.

name=ctx30>< CONYERS name=ctx32>>: Thank you, Mr. Moschella.

SANCHEZ: Thank you, Mr. name=ctx31>< Conyers name=ctx33>>.

The chair now recognizes the gentleman from Ohio, Mr. Jordan, for five minutes.

JORDAN: Thank you, Madame Chair.

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

Before or after the department determined to dismiss this group of attorneys, did the department ever interfere with one of their districts' public corruptions cases?

MOSCHELLA: Absolutely not.

JORDAN: Never asked to speed any up? Never asked to dismiss a case?

MOSCHELLA: No.

JORDAN: Before or after the department determined to dismiss this group of attorneys, did the department support the attorneys' investigations and prosecutions of public corruption cases, whether against Republicans or Democrats or whomever?

MOSCHELLA: Absolutely. I mean, the attorney general, as I said, the attorney general and the director of the FBI have made this area a priority. Who else other than the FBI and the Justice Department can root out the kind of corruption that we want to see rooted out? And I think that the record -- and Mr. name=ctx32>< Conyers name=ctx34>> mentioned Ms. Lam. I didn't say that Ms. Lam's performance in the things that she was doing was poor. The Cunningham case is something, as I said, we applaud, we herald, and if public officials are engaged in that kind of activity, they need to be brought to justice.

All I pointed out with regard to that district is that in the other priority areas, they were not being as vigorously pursued as we would have liked.

JORDAN: You had mentioned in your earlier testimony and you just referenced it right there, about Ms. Lam, that she was 91st out of 93 or 92nd out of 94 districts. For the other five attorneys, can you give me a summary of where they may have ranked in specific areas of prosecution cases relative to that, you know, to the 94 districts across the country?

MOSCHELLA: Well, in the other districts, we didn't have this same sort of difference on prosecution. We certainly had these other policy differences. For example, as I mentioned for Mr. Charlton, on death penalty or FBI taping and the like.

We certainly were aware, those who are considering these things, we certainly were aware that in Mr. McKay's district, that the sentencing -- within -- he had one of the -- maybe one other district was lower, but one of the lowest within guidelines sentencing ranges, and we had -- Deputy Attorney General Comey had sent out a memo I believe in 2004 to all U.S. attorneys indicating that we, the Justice Department, need to do our part to ensure that we get the maximum number of within guideline sentences.

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

JORDAN: You also mentioned in your testimony relative to Mr. McKay, since you just brought him up there, that there were policy differences. Can you elaborate a little bit more on those policy differences?

MOSCHELLA: He was a vigorous and strong proponent of a particular information sharing system called LInX. He did a lot to promote it around the country and within the department, but we had a difference, and the manner in which we...

JORDAN: And it was fair to say that you communicated the difference that the leadership in the Department of Justice had with him, and yet he continued to promote that?

MOSCHELLA: Yes. He was always in contact, particularly on this issue, because the deputy attorney general's office is really driving information sharing policy. So he clearly knew the position of the department in this regard.

JORDAN: Appreciate it.

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

SANCHEZ: Thank you.

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

Pardon me, I skipped over a colleague.

The gentleman from Georgia, Mr. Johnson. My apologizes. You're recognized for five minutes.

JOHNSON: Thank you.

Mr. Moschella, is it true -- or I should say, isn't it a fact that several of the individuals in the group that drew up the termination list have close associations with the White House, in particular Kyle Sampson, who worked at the White House until coming to DOJ in 2003 and one of Monica Goodling's jobs at Department of Justice is to be a liaison to the White House. Is that correct?

MOSCHELLA: That's correct. But that's her job. I would hope that the White House liaison within the department had a close working relationship with the White House. It's kind of in the job description.

JOHNSON: Of course.

MOSCHELLA: And Kyle Sampson is the chief of staff to the attorney general. I assume that the chief of staff to the attorney general has some relationship.

JOHNSON: Is it possible, Mr. Moschella, that there are conversations that they or others had with you or had -- that they had or other had -- that you don't know about? Isn't that correct? There's possibilities that they had conversations that you don't know about? Isn't that correct?

MOSCHELLA: Well, Congressman, in preparation for this hearing, I did what I think is the appropriate amount of due diligence to collect the facts and so while anything is possible, I believe I know...

JOHNSON: It's possible, and you answered the question.

Were there meetings of the group within the Justice Department that compiled the termination list?

MOSCHELLA: Meetings? There were meetings.

JOHNSON: And were there memoranda or record of these meetings or e-mails or other communications on the subject that were generated?

MOSCHELLA: I don't know of any memoranda that was created. At some point, names were put on a list, but I don't know about the specific records.

JOHNSON: Who would have control of that list? Who would maintain control of that list?

MOSCHELLA: Well, if folks have a list in their...

JOHNSON: Specifically who?

MOSCHELLA: I don't know what information is in anyone's files. The information could be in any number of places.

JOHNSON: All right.

At some point, recommendations were made to Deputy Attorney General McNulty and Attorney General Gonzales about which U.S. attorneys to terminate. Did they agree with those that your group recommended or were there any changes to the list that they made?

MOSCHELLA: I wouldn't put it exactly the way you did, sir. This was not kind of a working group that made a recommendation to the DAG and the AG. It was more a collaborative process between...

JOHNSON: So they were involved, along with your group, in making this list?

(CROSSTALK)

MOSCHELLA: And there was a consultation process, and as they were looking at...

JOHNSON: They came to a consensus kind of agreement, is that what it was?

MOSCHELLA: That's right. It came to a consensus.

JOHNSON: All right, well, let me ask you this question then. Is there anything that evidences the agreement? Any written memoranda, any documentation that evidences that consensus agreement? Or is it just in someone's head?

MOSCHELLA: I don't have a specific document in mind, but...

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

MOSCHELLA: No, but I assume that there is -- that the names were on a piece of paper at some point. And the names are the seven that...

JOHNSON: Did you make a list of the names?

MOSCHELLA: I did not.

JOHNSON: Did you see anyone else make a list?

MOSCHELLA: I did not see anyone make a list.

JOHNSON: How many times did this group meet along with McNulty and Gonzales about this list?

MOSCHELLA: I don't know a specific number of times that the group met.

JOHNSON: Do you recall the dates that you all met?

MOSCHELLA: No. And as I said, I may have been involved in some of the meetings. I did not have a basis upon which to add substantively to the record of the U.S. attorney. So I may not have been in any meetings.

Prior to serving as the Pay DAG (ph), I was the assistant attorney general for legislative affairs for three and a half years and so...

JOHNSON: Mr. Moschella, I'm getting ready to run out of time and I want to ask you this question.

The committee is very interested in further inquiry into this matter. Can I have your assurance that you'll make available to the committee the individuals I have asked you about and all memoranda, e- mails and other documents on this subject as was asked by myself and previous questioners? Can I get your commitment on that?

MOSCHELLA: Congressman, we have done everything we can to cooperate, including providing documents to the committee, having the briefings. We'll continue to work with you.

JOHNSON: Thank you, sir.

SANCHEZ: The time of the gentleman has expired.

The chair now recognizes that gentleman from Florida, Mr. Keller, for five minutes.

KELLER: Thank you, Madame Chairman.

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

MOSCHELLA: Yes, sir.

KELLER: Because I only have five minutes, I'm going to limit my questions to Ms. Lam's situation. That's been brought up quite a bit.

Did the Department of Justice headquarters ever discourage Ms. Lam from bringing the case against Duke Cunningham?

MOSCHELLA: No. In fact, I know that there was discussion about which district to send it to, and her district was favored over another district.

KELLER: Did the Department of Justice actually assist Ms. Lam in trying to help her obtain documents from Congress relating to the Duke Cunningham case?

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

KELLER: Let me be crystal clear. Did Ms. Lam's role in prosecuting Duke Cunningham have anything whatsoever with her being asked to resign?

MOSCHELLA: No, sir.

KELLER: Now, it's my understanding from your earlier testimony, the concerns that the attorney general had with her related to the prosecution of gun crimes and immigration enforcement. Is that correct?

MOSCHELLA: Yes, sir.

KELLER: OK. And those concerns, in fact, actually predated the Duke Cunningham scandal coming to light. Isn't that correct?

MOSCHELLA: Yes. Well, I don't know exactly when Duke Cunningham...

KELLER: I'll refresh your recollection. This is the story that broke the Duke Cunningham story wide open, published by "San Diego Union Tribune" June 12, 2005. "Lawmakers' home questioned." This was the beginning of the end, appropriately, for Mr. Cunningham.

I have letters here, letter after letter, over a year before that. February 2, 2004, Congressman Darrell Issa writing to Ms. Lam, complaining that she is not prosecuting alien smugglers. March 15, 2004, Ms. Lam responds to Congressman Issa. May 24, 2004, Will Moschella, on behalf of DOJ, responding to Mr. Issa, raising concerns about an illegal alien smuggler, Antonio Imparo Lopez (ph) not being prosecuted.

Does that refresh your recollection?

MOSCHELLA: It does.

KELLER: So, in fact, the concerns that were being raised, which ultimately led to her dismissal, were raised before we even knew about the Duke Cunningham scandal. Is that right?

MOSCHELLA: Well, I don't want to get...

KELLER: Before the public knew about it.

MOSCHELLA: Yes, those concerns existed. As I testified in the 2004-2005 time frame, when she specifically changed policy in the department, there was a precipitous drop in the number of immigration cases.

KELLER: Let me cut you off, because I've got to go with some more questions.

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

MOSCHELLA: On the gun side, yes. I believe she had a conversation about it with Deputy Attorney General Comey. On the immigration side, I don't know specifically what was communicated. I know there was back and forth with regard to what was going on in her district.

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

KELLER: Let me again refresh your recollection. On April 6, 2006, Attorney General Gonzales testified before the full House Judiciary Committee, and I relayed to him some concerns I heard from border patrol agents, having spent a week with the border patrol in San Diego, about their complaints about there not being any prosecution of people who are smuggling aliens unless they commit a violent act against someone or bring 12 people with them.

And this specifically was my question to Attorney General Gonzales: "What if anything will you do to see that the U.S. attorney in San Diego prosecutes those alien smugglers, at least those who have been repeatedly arrested by border patrol agents?"

Answer, by Gonzales: "I'm aware of what you're talking about with respect to the San Diego situation, and we are looking into it. We're asking all U.S. attorneys, particularly those on our southern borders, to do more, quite frankly. We need to be doing more, and we are looking at the situation in San Diego, and we are directing that our U.S. attorneys do more, because you're right, if people are coming across the border repeatedly, particularly those who are coyotes and they're smugglers, whether criminals or felons, they ought to be prosecuted."

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

MOSCHELLA: I was sitting behind him.

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

MOSCHELLA: I can't tell you if a transcript or something like that was sent to her. I don't know.

KELLER: You don't know? OK.

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

SANCHEZ: Thank you.

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

LOFGREN: Thank you, Madame Chairwoman.

The Department of Justice has praised the Cunningham corruption probe as really a lynchpin in the growing pursuit of public corruption cases and I believe at the time that former U.S. Attorney Carol Lam left the office, that probe had led to at least two more indictments and I think was still ongoing, based on press accounts.

I am concerned about the state of those investigations. The top FBI official in San Diego, according to the "San Diego Union Tribune," was quoted as saying that Ms. Lam's dismissal would undermine multiple continuing investigations. And I realize that mid-last month several members of Congress wrote to the department, suggesting that Ms. Lam be retained as outside counsel so that those corruption investigations would not be disrupted and would be completed. Is the department intending to take that course of action?

MOSCHELLA: No. We see no reason to have outside counsel on this case. And let me say, I would be surprised if it were Ms. Lam's opinion that the prosecutors on the case were not able to fulfill the...

LOFGREN: Reclaiming my time, I'm just quoting the top FBI official who expressed the concern that these investigations would be disrupted.

MOSCHELLA: I can say -- let me say that that individual also used a very inflammatory word in one of the press articles and said that the decision was politics, and there's absolutely, positively no basis for it. No one is...

(CROSSTALK)

LOFGREN: I don't know the individual. I do know the FBI, and they tend not to be very political people. They're tough cops.

(CROSSTALK)

MOSCHELLA: My brother is an FBI agent. I respect their...

(CROSSTALK)

LOFGREN: And they're not tough cops?

MOSCHELLA: And they are. But let me tell you, that comment was absolutely irresponsible.

LOFGREN: Well, you can imagine, if you will, Mr. Moschella, that the impact of these firings has led to concern about the role of politics across the country.

Let me ask you this, and we'll hear from the fired U.S. attorneys shortly on the alleged reasons for their termination, but would you agree with me and the CRS that although U.S. attorneys have in fact sometimes been dismissed in the past, the discharge of this many U.S. attorneys, I think it's eight so far, in this short a period of time is unprecedented?

MOSCHELLA: I don't know if it's unprecedented. But as I said before, what was going on at the department was a process to look at what we can do in the last two years of the administration to push the policies and priorities of the department. Nothing more, nothing less.

In January, the attorney general directed that he get briefed on his policy and priority areas. He had set specific goals, specific metrics that we measure ourselves by, and we intend to fulfill our own goals in this regard.

LOFGREN: Let me ask you this. Is it true that at least with respect to the six U.S. attorneys that are here with us today, all received favorable performance reviews or EARS evaluations?

MOSCHELLA: No. And let me just say that has been talked about. EARS reports are not reviews of the U.S. attorneys themselves. The U.S. attorneys have two supervisors, the attorney general and the deputy attorney general. Neither...

LOFGREN: Have these reports been provided to the committee?

MOSCHELLA: I believe they have.

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

We learned just today that Mr. Battle has apparently submitted his resignation sometime ago. Have you provided a copy of his resignation letter to the committee or record of his resignation decision to his committee?

MOSCHELLA: No.

LOFGREN: Could you do so?

MOSCHELLA: I will get back to the committee, but let me just say, I saw Mike Battle yesterday and had a good laugh over this. Mike Battle had indicated to folks in the department that he was looking last year and folks have known about this for quite sometime.

LOFGREN: Well, if we could just get the documents, that would be very good.

Now, we're interested in the nature and extent of communications between the department and members of Congress concerning any of the terminated U.S. attorneys. Can you provide us with communications from members of Congress, on both sides of the aisle, in advance of the terminations of the U.S. attorneys?

MOSCHELLA: We'll go back and see what -- the only letters, really, that I know of, are the ones by Senator Feinstein and the ones referenced by Mr. Keller.

LOFGREN: Verbal communication would also be included, if you could.

SANCHEZ: The time of the gentlewoman has expired.

The chair now recognizes the gentleman from Florida, Mr. Feeney, for five minutes.

FEENEY: Thank you, Madame Chairman.

Mr. Moschella, thanks for being back with us.

There is one statement in your testimony that probably isn't technically correct. You say, like other high-ranking officials in the executive branch, you're referring to U.S. state attorneys, in quotes, "They may be removed for any reason or no reason at all," end of quote. That probably isn't exactly accurate, that you couldn't fire somebody because, for example, of their race or ethnicity. You couldn't fire somebody to obstruct justice. Would it be correct that you can't fire even high-level officials for any reason whatsoever?

MOSCHELLA: As we said, everyone -- there was a reason, whether folks agree or disagree with these, there was a reason.

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

MOSCHELLA: I have not done the Article 2 analysis about whether or not there is any limitation on the president. I don't believe so, but there are all reasons in this case. It wouldn't be the right thing to do in the examples that you said.

FEENEY: I think what you really intended or ought to have said there is that these are not lifetime appointments, they serve at the pleasure of the president. And within reason, he's got the ability to, just as he does to hire them, to fire them for anything that would be a legal reason.

MOSCHELLA: They're like the folks sitting behind you today. They're at-will employees. I sat there for almost 13 years.

FEENEY: Aside from the performance issues on some specific benchmarks that you mentioned in the Southern California case, you also point out that these are not just prosecutors, that they have managerial and policy responsibilities. And so that, for example, you point out that the attorney general, at U.S. attorney conferences and through memos, even the president of the United States through a video, announces his priority policies and what can you do to state attorneys who are simply ignoring the attorney general and the president of the United States when it comes to management responsibilities and policy priorities? Other than firing, do you have any other discipline mechanisms?

MOSCHELLA: No, there isn't a way that you can garnish their -- I don't believe you can garnish their wages, or something like that. I mean, they are the presidential-appointed, Senate-confirmed leader of that office, and I don't know how else we would communicate to them those priorities, other than the manner in which you state, the memos, conferences and the like.

FEENEY: I remember a great deal of criticism of the former secretary of defense and criticism of the president for not asking him to step down earlier. There was even criticism after he did step down. Recently, we've had people with the U.S. Army resign because of a situation at Walter Reed.

It seems as if the administration is damned if they do and damned if they don't when it comes to replacing people that are not putting priorities on their policies. I can tell you, I for one have been strongly critical, not just of independent state of attorneys for lack of enforcement, for illegal immigration issues and violent crime, but of the administration itself, and I'm delighted to hear that no matter how successful in one area a state attorney is, that if they're not prosecuting illegal immigration offenses, and especially firearm offenses with respect to violence, that I personally am delighted that there is a signal sent to all state attorneys that these are priorities of the administration and, personally, I want to congratulate you.

By the way, one thing that we haven't put formally in the record, Congressman Keller talked about his correspondence and Congressman Issa's, but it wasn't just Republicans complaining about lack of enforcement in Southern California. Senator Feinstein's letter on June 15, 2006 made very clear that the U.S. attorney's office for the Southern District of California may have some of the most restrictive prosecutorial guidelines nationwide for immigration cases, such that many border patrol agents end up not referring their cases.

I also want to stress the importance of vigorously prosecuting these types of cases. And she goes on to say that she's concerned that lacks prosecution can endanger the lives of border patrol agents.

So Republicans and Democrats in Congress are urging the administration to do a better job in Southern California. And as you said, you can't garnish wages. You really only have one remedy available to you, and I personally applaud you for using it. I hope everybody else along the border gets the message. By the way, I hope they'll quit...

SANCHEZ: The time of the gentleman has expired.

FEENEY: ... prosecuting border patrol agents, if I can add my two cents on that, too.

SANCHEZ: The gentleman from Massachusetts, Mr. Delahunt, is recognized for five minutes.

DELAHUNT: Thank you, Madame Chair.

Mr. Moschella, I'm going to ask you to keep your responses as concise as possible because there is a series of questions I'd like to pose to you.

I found it interesting that you used the word authorized the U.S. attorney to seek the death penalty. Does that mean in terms of your policy that if main Justice makes a decision to authorize the U.S. attorney to seek the death penalty, that that U.S. attorney must comply with that authorization? Is there any discretion at all?

MOSCHELLA: Yes. It's to seek.

DELAHUNT: Then it's a decision made in Washington. It's not made in the local jurisdiction?

MOSCHELLA: That's right. This is a non...

(CROSSTALK)

DELAHUNT: Thank you.

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

MOSCHELLA: No, sir.

DELAHUNT: Wouldn't it have been a better practice to extend that courtesy to them?

MOSCHELLA: As I said, in hindsight, it absolutely would have. I think that...

DELAHUNT: Thank you.

MOSCHELLA: Yes, sir.

DELAHUNT: You know, you mentioned that in response to a question by Congresswoman Lofgren, that I don't think that you really meant it, that it was unprecedented or that there had been precedents in terms of the eight dismissals within a matter of months.

MOSCHELLA: My only point is I have not gone back in past administrations and done a...

DELAHUNT: To be perfectly candid, Mr. Moschella, and I do have respect for you, you know that, this has been a matter that has been raised prior, too, and you haven't gone back and done that kind of research?

MOSCHELLA: I have not.

DELAHUNT: There was a Senate hearing this morning. It's my understanding that during the course of that hearing, one of the individuals that is present here today, Mr. Cummins, testified before the Senate that he received a telephone call from Michael Alspin (ph) on or about February 20. Are you aware of that testimony?

MOSCHELLA: I'm generally aware of it. I don't know that I caught it all. I caught some of it.

DELAHUNT: OK. Well, according to my information, the former U.S. attorney testified that Mr. Alspin (ph) explained that the public perceived the Department of Justice as being reluctant to disseminate specific information regarding the U.S. attorneys' dismissals. But that if the dismissed U.S. attorneys continue to speak to the media, the Department of Justice would have to release information that would exacerbate the U.S. attorneys' situation.

Mr. Cummins further mentioned that Mr. Alspin (ph) suggested that it would be a bad idea for the dismissed U.S. attorneys to voluntarily testify in Congress. Are you familiar with that testimony by Mr. Cummins?

MOSCHELLA: I'm not sure that that's what he said. In fact, after questioning by Senator Specter, he said that whatever transpired, he said I wouldn't make a good witness at a trial in this matter. He didn't have a clear recollection of specific words, and that it was his opinion that whatever it was, was friendly advice. And that is a quote. He said it was friendly advice.

DELAHUNT: OK. Thank you, Mr. Moschella.

Would you have...

MOSCHELLA: Can I just say...

DELAHUNT: I don't have a lot of time.

MOSCHELLA: I will be very brief.

DELAHUNT: My time is very short.

Let me just pose one additional question, then. Would the Department of Justice make Mr. Alspin (ph) available to this committee for purposes of inquiry into this matter?

MOSCHELLA: That's not a decision for me, but I'll certainly take it back and get back to you as soon as we can.

DELAHUNT: Who is the decision for?

MOSCHELLA: I will consult with the new acting head of the Office of Legislative Affairs.

DELAHUNT: Well, I think that you have an increase in your pay grade. Would your recommendation be favorable that this committee would have an opportunity to inquire of Mr. Alspin (ph)?

MOSCHELLA: I think Mr. Alspin (ph) would probably be happy to talk to you about that.

DELAHUNT: I thank you and I yield back.

SANCHEZ: Thank you. Would...

MOSCHELLA: Madame Chairman, may I just -- because I didn't get an opportunity to just make one point in that questioning by Mr. Delahunt.

I just want to say, as I said, we should have, in retrospect, told these U.S. attorneys the reasons. And the record is that we did not go out publicly and talk about these things. The record is that the press reported on it. There were inquiries by the Congress. We briefed the Senate. The deputy attorney general briefed the Senate in closed door sessions...

SANCHEZ: Mr. Moschella, will that be your policy in the future, moving forward, that you will explain to U.S. attorneys who you are asking to resign the reasons for their termination, prospectively?

MOSCHELLA: It seems to me the prudent course.

SANCHEZ: Thank you.

We've been advised by the House Parliamentarian that once Mr. Watt's time began it could not be interrupted, and therefore that Mr. Watt's time for this round of questions has expired.

Is there any objection to Mr. Watt receiving three minutes of time now for questioning?

CANNON: Madame Chair, reserving the right to object, I'd be pleased if Mr. Watt had five minutes to question.

SANCHEZ: Is there any objection to Mr. Watt being recognized for five minutes for this round of questioning?

Hearing none, Mr. Watt is recognized for five minutes.

WATT: I thank both the chairman and the ranking member.

Mr. Moschella, this morning's "New York Times" published an article saying that former federal prosecutor of Maryland, Thomas DiBiagio, was forced out in early 2005 because of political pressure stemming from public corruption investigations involving associates of the state governor, Mr. Ehrlich, our former colleague.

First, are you aware of efforts made by any prominent Maryland Republicans to pressure Mr. DiBiagio to back away from the inquiries about the Ehrlich administration?

MOSCHELLA: I am not.

WATT: Are you aware of any complaints made to the FBI by Mr. DiBiagio about this incident?

MOSCHELLA: I am not.

WATT: Now, when you say you are not aware of it, does that mean it is not the case, or you just don't have any personal knowledge of it?

MOSCHELLA: I'm saying that I don't have personal knowledge. But...

WATT: Have you done anything to review these allegations?

MOSCHELLA: I have, in the last several hours since the story broke this morning.

WATT: And you haven't found any impropriety there, is that what you are saying?

MOSCHELLA: That's correct. And, in fact...

WATT: I'm just trying to get to the bottom of this.

MOSCHELLA: But let me...

WATT: Did Mr. DiBiagio's investigation into whether associates of Governor Ehrlich had improperly funneled money from gambling interests to promote legalized slot machines in Maryland play any role in his dismissal?

MOSCHELLA: Absolutely not.

WATT: And you're saying that as a matter of fact, not just based on your personal knowledge? Were you involved in his dismissal?

MOSCHELLA: No. As I said, I was not in the deputy's office until October of last year. But I -- what I want to...

WATT: Are you saying that is a statement of facts on behalf of the department, or are you saying it based on your knowledge?

MOSCHELLA: No, I am, because I -- and this is what I wanted to explain -- I spoke to 42-year career veteran David Margolis who is the person in charge of ethics matters in the department under this administration and the Clinton administration. And he walked me through what occurred then.

WATT: OK. Well that's why I'm just trying to make sure that there was no impropriety. Is it your testimony, then, that Mr. Ehrlich and no one else in his administration contacted the Department of Justice about Mr. DiBiagio's performance as U.S. attorney?

MOSCHELLA: In fact, I believe it's Mr. Margolis' recollection that they supported him in the U.S. attorney position.

WATT: OK. And tell us, then -- if you know, Mr. Moschella -- what the circumstances under which Mr. DiBiagio was asked to leave.

MOSCHELLA: Thank you, Congressman.

As I said, I discussed this matter with David Margolis, who has the responsibility in the department for these matters. It came to his attention that there were inappropriate e-mails and a staff meeting initiated by Mr. DiBiagio in which he specifically called for public corruption cases within a specific time frame, indicating that he wanted to bring some prior to the election.

This was so egregious that the deputy attorney general at the time, Jim Comey, had to write him a letter saying, "You will not bring any public corruption cases without running it by me first."

WATT: So wait a minute, now. This seems entirely inconsistent with your prior testimony that this was totally unrelated to any public corruption investigation. Am I missing something here? Didn't you just testify that there was no connection?

MOSCHELLA: His being asked to remove had nothing to do with any public corruption case. What I'm saying is he sent several e-mails...

WATT: But wasn't this before the election of Governor Ehrlich, and he was trying to get a prosecution done or charges brought before that election? And you're saying that an instruction from the Department of Justice to him not to pursue an investigation and charges before the election is not related?

MOSCHELLA: We didn't tell him not to pursue any specific case. In fact, I am happy to provide the committee with the agenda for the staff meeting that he called.

And I just want to make this clear, after this just kind of outrageous kind of conduct occurred, David Margolis commissioned a specific review of him in which the evaluators found that the office was in disarray, poorly managed, had extremely poor morale.

This is something that is kind of well known in...

WATT: All coincidentally right after he said...

SANCHEZ: The time of the gentleman...

WATT: ... "I want to pursue a prosecution before an election involving the governor of Maryland." That's all coincidental, I take it.

MOSCHELLA: I don't know.

SANCHEZ: The time of the gentleman has expired.

(UNKNOWN): (OFF-MIKE)

SANCHEZ: Yes?

(UNKNOWN): I'd request unanimous consent that Mr. Watt be extended an additional two minutes so that he can explore with Mr. Moschella the circumstances in this particular situation.

SANCHEZ: The request is for unanimous consent for Mr. Watt to continue with this line of questioning for two minutes. Is there any objection?

Hearing none, Mr. Watt you may continue.

WATT: I guess the question I'm raising is, you've testified on the one hand that there is no connection, and then you've come right back around and testified that there is a connection because there was a specific letter that went out from the Justice Department saying you shall not put a time line on this, and then you say there's no connection?

MOSCHELLA: No, no, no.

WATT: It seems to me that the investigation should have been launched of the person who wrote that letter.

MOSCHELLA: No, no. There is no "this," as in a specific case. So, in other words, he was requesting from his staff, and I think that if you look at, the "Baltimore Sun" early examined this issue, the concern -- and I can tell you that...

(CROSSTALK)

WATT: Was the e-mail related to this particular corruption investigation or it was a general e-mail?

MOSCHELLA: It was general.

WATT: OK. And your response was a general response, related to no particular corruption investigation. Is that what you're saying?

MOSCHELLA: That's right.

WATT: OK.

I yield back the balance of my time.

SANCHEZ: Thank you, Mr. Watt.

The gentleman from Arizona, Mr. Franks, is recognized for five minutes.

FRANKS: Madame Chairman, I have no questions for this witness. Thank you.

SANCHEZ: Mr. Moschella, thank you very much for your testimony.

If you could please stick close in case there are further questions.

We will now move to our second panel. Will the second panel of witnesses please be seated.

COHEN: Thank you, Madame Chair. I had a bill I had to handle, first one, passed.

But is there a chance Mr. Moschella could come back for just a minute?

SANCHEZ: Is there any objection to recalling Mr. Moschella so that Mr. Cohen may question him?

Hearing no objection, Mr. Moschella?

And Mr. Cohen, the gentleman from Tennessee, is recognized for five minutes.

COHEN: Thank you, Madame Chairman, and I appreciate the committee.

If these questions have been asked of you, sir, I apologize. But you've discussed Mr. Cummins, and at some point you had said that he had made it known that he wanted not to fill out his term. Did he make that known to you?

MOSCHELLA: No, sir.

COHEN: Did he make it known to anybody at the Department of Justice?

MOSCHELLA: What I've been told is that both because of some press reporting and some comments made to colleagues, that it was generally known that he would be looking to move on at some point, not serving out the full, you know, the second term, the full second term.

COHEN: What other situations does the administration depend on press reports to take policy actions? Does the administration regularly act on press reports or do they basically act on facts that they ascertain themselves?

MOSCHELLA: I didn't say that it was done solely on that. There was information that he had indicated, as I'm told, by two colleagues, for example at the U.S. attorneys conference, that it wouldn't be -- because of whatever particulars to his situation, he wouldn't be there for the entire second term.

COHEN: Did anybody pick up the phone and ask him if he wanted to resign?

MOSCHELLA: I don't believe so. I haven't been told that that happened.

COHEN: You said that you hired Mr. Griffin, that he'd obviously served this country nobly in Mosul, and that he wanted to serve this country in another capacity, and that's the reason you hired him. Is that correct?

MOSCHELLA: Mr. Griffin had gone through the process for the other district in Arkansas and was one of four individuals considered, and as I think I've already testified, was most likely to be the person selected for that position. He had prosecutorial experience here in Washington and in Arkansas. He worked on the Project Safe Neighborhood Project for Mr. Cummins, but then he took another position, so he was not selected for the other district, and then after that served in Iraq.

COHEN: And you said after he came back from Iraq you wanted to give him this opportunity. Is that not correct, sir? I believe I heard that before I left.

MOSCHELLA: No, that's right.

COHEN: What are the other Affirmative Action Iraqi veteran programs that you have in the Department of Justice? Was this the entire Affirmative Action Iraqi veteran Department of Justice program, or do you have other programs for people returning from Iraq?

MOSCHELLA: Well, of course we have the veteran's preference laws which we institute through our personnel system, but this is not a normal personnel matter. This is a presidential-appointed, Senate- confirmed position.

COHEN: And if he had not been in Iraq, would you have still hired him?

MOSCHELLA: Pardon me?

COHEN: If he had not gone to Iraq, would you have still wanted him to be the U.S. attorney?

MOSCHELLA: As I said, before he went to Iraq, he was considered for another position and would likely have been selected but for the fact that he took another position.

COHEN: You're familiar with Deputy Attorney General Palm McNulty?

MOSCHELLA: I am.

COHEN: And isn't it true that at a Senate hearing that Mr. McNulty admitted that Mr. Griffin was not the best possible person for the job?

MOSCHELLA: I don't recall that to be his testimony?

COHEN: What do you recall as his testimony? Did he suggest anything about Mr. Cummins not being a good attorney general?

MOSCHELLA: No. He didn't suggest that Mr. Cummins would not...

COHEN: What did he say about Mr. Griffin?

MOSCHELLA: That Mr. Griffin was well qualified. Mr. Griffin had as much -- I think Mr. Cummins would tell you he had as much prosecutorial experience, if not more, than when Mr. Cummins started in his position as U.S. attorney.

COHEN: And where was that prosecutorial experience?

MOSCHELLA: It was both here in Washington, in the criminal division, in the U.S. attorney's office, in Mr. Cummins' office, as an assistant United States attorney and then as a JAG lawyer.

COHEN: What role did Mr. Rove play in recommending him to the Department of Justice?

MOSCHELLA: I don't know that he played any role?

COHEN: Do you know if there's any correspondence or any e-mails from the White House or any person, Ms. Miers, Mr. Rove or anybody else, to the Department of Justice concerning either replacing Mr. Cummins or replacing him with Mr. Griffin?

MOSCHELLA: No. As I think the deputy attorney general briefed members of the Senate, that there was a communication at some point from the counsel to the president to the department in anticipation of Mr. Griffin coming back from Iraq and seeing if there was a position within the department and that he had already been considered for a United States attorney position.

SANCHEZ: The time of the gentleman has expired.

COHEN: May I ask one last question?

SANCHEZ: Does the gentleman ask unanimous consent for one last question?

COHEN: Unanimous consent, yes. Yes, ma'am.

SANCHEZ: Any objection?

Hearing none...

COHEN: I believe you talked about Mr. Alspin's (ph) memo and you said you didn't think it was an enhanced -- that possibly it was an enhancement, as Mr. Cummins said. Is that correct? That it possibly could be an enhancement?

MOSCHELLA: What memo? I'm confused.

COHEN: An escalation. I think that was the term Mr. Cummins used, that there could be an escalation of charges. You said that wasn't true.

MOSCHELLA: That's certainly not Mr. Alspin's (ph) recollection of the conversation. And before you got here, I testified in recalling Mr. Cummins' response to Senator Specter that he took it as friendly advice, and then others testified that they took it as more threatening. What I would say to the panel is that the person who was on the other end of the line took it as friendly advice and those who were not a party to the conversation may have taken it as more threatening.

SANCHEZ: The time of the gentleman has expired.

COHEN: Thank you, Madame Chair.

SANCHEZ: Thank you.

Again, Mr. Moschella, we thank you for your testimony. If you could please stay close.

At this time, I would like to ask the second panel of witnesses to please be seated.

I'm pleased to introduce our second panel of witnesses. Our first witness, Ms. Carol Lam, served as a U.S. attorney for the Southern District of California from 2002 until February of 2007. She joined the United States Attorneys Office for the Southern District of California as an assistant U.S. attorney in 1986 where she was chief of the major fraud section. In 2000, she was appointed to be a judge of the San Diego Superior Court.

Our second witness, David Iglesias, was U.S. attorney for the District of New Mexico from October 2001 until the end of February 2007. Mr. Iglesias was a U.S. Navy JAG officer from 1985 to 1988. After leaving active duty in 1988, Mr. Iglesias continued his career in public service by serving as state assistant attorney general special prosecution. He's also a reserve captain in the Navy where he serves as staff judge advocate for Readiness Command Southwest.

Our third witness, Daniel G. Bogden, served as U.S. attorney for the District of Nevada from October 2001 to February 2007. Prior to that, he was chief of the Reno Division of the United States Attorneys Office, where he had worked since 1990. He also served on numerous task forces and committees, including the Attorney General's Advisory Committees on Violent and Organized Crimes and Native American Issues and the executive board of the Southern Nevada High Intensity Drug Trafficking Area.

Our fourth witness, Paul Charlton, was U.S. attorney for the district of Arizona from 2001 to February of 2007. As U.S. attorney, Mr. Charlton served as chairman for the Border Subcommittee and chaired the Arizona Antiterrorism Advisory Committee. Prior to his presidential appointment, he worked since 1991 as an assistant U.S. attorney in the District of Arizona.

Our fifth witness, H.E. "Bud" Cummins, was U.S. attorney for the Eastern District of Arkansas from 2001 until December of 2006. Prior to that, he was chief legal counsel for Governor Huckabee. He clerked for U.S. Magistrate John F. Forster, Jr. in the Eastern District of Arkansas and later clerked for the then chief judge of that district, Stephen Reasoner. He is currently working as a consultant for a bio- fuels company.

Our final witness on the panel, John McKay, served as a U.S. attorney for the Western District of Washington from October 2001 until January 2007. Prior to that, he was aide to Congressman Joel Pritchard. He served as special assistant to the director of the FBI while he was a White House fellow in 1989-90 and as president of the Legal Services Corporation from 1997 to 2001. He also received in 2001 the Washington State Bar Association's Award of Merit, its highest honor.

I would like to extend to each of the witnesses my warm regards and appreciation for your cooperation with our subpoenas and for your presence here today.

Given the gravity of the issues that we are discussing today and your role in these hearings, and so there is no misunderstanding, we would like to ask each of you, as we did with Mr. Moschella, to take an oath before you begin your testimony. Does anybody object to doing so?

Thank you.

Would you each please stand and raise your right hand. Do you solemnly swear or affirm under penalty of perjury that the testimony you are about to provide the committee will be the truth, the whole truth and nothing but the truth, so help you God?

Thank you.

Please be seated.

Ms. Lam, will you please proceed with your testimony?

LAM: Thank you.

Good afternoon, Madame Chair and members of the subcommittee.

My name is Carol Lam, and until recently I was the United States Attorney for the Southern District of California.

In the interest of conserving time, I will be making introductory remarks on behalf of all the former United States attorneys before you on the panel today, with whom I have had the great privilege of serving as a colleague.

From the following districts: Bud Cummins, Eastern District of Arkansas; Paul Charlton, District of Arizona; Daniel Bogden, District of Nevada; David Iglesias, District of New Mexico; and John McKay, Western District of Washington.

We thank the committee and your subcommittee for your courtesy in the manner in which we were subpoenaed to appear before you today and we will do our best to answer fully and completely any questions posed to us by members.

Each of us is very appreciative of the president and our home state senators and representatives who entrusted us five years ago with appointments as United States attorneys. The men and women in the United States Attorneys Office, based in 94 federal judicial districts throughout the country, have the great distinction of representing the United States in criminal and civil cases in federal court.

They are public servants who carry voluminous caseloads and work tirelessly to protect the country from threats, both foreign and domestic. It was our privilege to lead them and to serve with our fellow United States attorneys around the country.

As United States attorneys, our job was to provide leadership in each of our districts to coordinate federal law enforcement and to support the work of assistant United States attorneys as they prosecuted a wide variety of criminals, including drug traffickers, violent offenders and white collar defendants.

As the first United States attorneys appointed after the terrible events of September 11, 2001, we took seriously the commitment of the president and the attorney general to lead our districts in the fight against terrorism. We not only prosecuted terrorism related cases but also led our law enforcement partners at the federal, state and local levels in preventing and disrupting potential terrorist attacks.

Like many of our United States attorney colleagues across this country, we focused our efforts on international and interstate crime, including the investigation and prosecution of drug traffickers, human traffickers, violent criminals and organized crime figures. We also prosecuted among others fraudulent corporations and their executives, criminal aliens, alien smugglers, tax cheats, computer hackers and child pornographers.

Every United States attorney knows that he or she is a political appointee, but also recognizes that the importance of supporting and defending the Constitution in a fair and impartial manner is important and devoid of politics. Prosecutorial discretion is an important part of a United States attorney's responsibilities. The prosecution of individual cases must be based on justice, fairness and compassion, not political ideology or partisan politics. We believe that the public we served and protected deserves nothing less.

Toward that end, we also believe that within the many prosecutorial priorities established by the Department of Justice, we have the obligation to pursue those priorities by deploying our office resources in the manner that best and most efficiently addresses the needs of our districts. As presidential appointees in particular geographic districts, it was our responsibility to inform the Department of Justice about the unique characteristics of our districts. All of us were long-time if not lifelong residents of the districts in which we served.

Some of has had many years of experience as assistant U.S. attorneys and each of us knew the histories of our courts, our agencies and our offices. We viewed it as a part of our duties to engage in discussion about these priorities with our colleagues and superiors at the Justice Department. When we had new ideas or differing opinions, we assumed that such thoughts would always be welcomed by the department and could be freely and openly debated within the halls of that great institution.

Recently, each of us was asked by Department of Justice officials to resign our posts. Each of us was fully aware that we served at the pleasure of the president and that we could be removed for any or no reason. In most of our cases, we were given little or no information about the reason for the request for our resignations.

This hearing is not a forum to engage in speculation and we decline to speculate about those reasons. We have every confidence that the excellent career attorneys in our offices will continue to serve as aggressive, independent advocates of the best interests of the people of the United States and we continue to be grateful for having had the opportunity to serve and to have represented the United States during challenging and difficult times for our country.

While the members of this panel all agree with the views that I've just expressed, we will be responding individually to the committee's questions and those answers will be based on our own individual situations and circumstances. The members of the panel regret the circumstances that have brought us here to testify today. We hope those circumstances do not in any way call into question the good work of the United States attorney's offices we led and the independence of the career prosecutors who staff them.

And while it is never easy to leave a position one cares deeply about, we leave with no regrets because we served well and upheld the best traditions of the Department of Justice.

Thank you and we welcome the questions of the chair and members of the committee.

SANCHEZ: Thank you, Ms. Lam.

I know that no other U.S. attorney has prepared written testimony. However, if witnesses would like to take a few minutes to respond to Mr. Moschella's testimony, you may do so now.

If nobody wishes to have that opportunity, we can just move straight into questioning. Is there any interest in responding to Mr. Moschella's testimony?

Mr. Iglesias?

IGLESIAS: May I have a minute to review my notes?

SANCHEZ: Absolutely.

Mr. Bogden?

BOGDEN: I thank the committee and I'm also thankful for this subpoena, because after going through a very traumatic and emotional time for me since December 7 when I got the call concerning what was happening with my position, I finally today got an explanation as to why I was asked to step down.

After 16-1/2 years in the Department of Justice, knowing full well that my career with the Department of Justice now is essentially over, I relish the 5-1/2 years I had as United States attorney, but it's not a whole lot of solace when I realize that the reason why I was asked to step down is so new blood could be put in my position.

My only question and concern of the department is what happened to the old blood? Our district has achieved, I think I've been an outstanding leader for the district, and I think we've accomplished the things that we needed to accomplish. We followed through on what the attorney general wanted us to do as far as our priorities and our mission, and I've very proud of the way that my staff and my office was able to achieve under some very, very difficult conditions.

I know that as a presidential appointee, I serve at the pleasure of the president, and I have been asked to step down and I can accept that and I'll have no regrets in that regard.

SANCHEZ: Thank you.

Mr. Iglesias?

IGLESIAS: Yes. Madame Chair, I'd like to just briefly -- I promise this will not take anywhere near five minutes.

Leadership. 2001, my office prosecuted 5,508 criminal defendants. 2006, 6,212 for an increase of 13 percent. Immigration cases went from 2,146 in 2001 to 2006 3,825, for a 78 percent increase. Increase in FTEs was only 7 percent. Cases handled per assistant U.S. attorney went from 76 to 100 during that five years period.

62 percent of what my office does is immigration related, 24 percent drugs, 4 percent firearms. We have a 95 percent conviction rate.

These numbers show improvement. Improvement does not happen in a vacuum. I respectfully challenge Mr. Moschella's characterization of my five years as somehow lacking in leadership.

That's all I have.

SANCHEZ: Thank you, Mr. Iglesias.

Mr. Charlton?

CHARLTON: Thank you, Madame Chair, Mr. name=ctx33>< Conyers name=ctx35>>, Ranking Member.

I would like to address very briefly the idea that Mr. Moschella spoke about relating to the FBI's taping policy, because there is in my mind no small amount of irony in the Department of Justice having chosen that as the reason for my having been asked to resign.

I would underscore that I understand full well that I serve at the pleasure of the president and am grateful for having had that opportunity. But as that is one of the reasons they discussed, I wish to make these points.

First, the United States attorney, unlike many United States attorneys in the country, in Arizona, is responsible for prosecuting violent crime offenses that take place in Indian country, on the Indian reservations, Arizona's 21 Indian reservations, in fact the largest Indian reservation in the nation, the Navaho Indian Reservation, is in Arizona. That means we are essentially the district attorneys for those tribes. We prosecute murders, kidnappings, rapes, child molestation cases.

In child molestation cases in particular, because I am a career prosecutor before I had to leave in January. In child molestation cases in particular, the best evidence that you often receive are the words that come from the molesters' mouths, because there is often times very little if any physical evidence of the molestation.

Now, with that as a general umbrella, it's important to know that the FBI has a policy that discourages the taping or recording of confessions. In the District of Arizona, we have lost, we will lose and continue to lose cases, have pled down, will plead down and will continue to plead down child molestation cases so long as that policy is in place.

It is the responsibility of the chief law enforcement officer in every district to ask law enforcement agencies to provide the best evidence so that you can go forward with a reasonable likelihood of success of a conviction. I exercised that discretion when in February of 2006 I asked all federal law enforcement agencies to, where appropriate, obtain taped statements of any confessions that were made by suspects so that in particular in Indian country we could better do our job in prosecuting those cases.

After having issued that letter and asking federal law enforcement to implement that program, in March of 2006 I received a call from the deputy attorney general's office telling me that the deputy attorney general and the director of the FBI were displeased with that letter and that they wanted me to revoke that policy.

I indicated that I felt so strongly about this matter, I referred them to the fact that we were losing cases or pleading down cases because of the inability to obtain taped confession. I told them that I would resign before I would withdraw this pleading -- before I would withdraw this program.

The deputy attorney general's office asked me not to resign over this issue, but instead to submit a request for a pilot program citing examples of cases that had been pled down or lost because of the FBI's failure to tape confessions, and in March of 2006, I did so. I was promised by the deputy attorney general's office that there would be an expeditious review of this matter and that it would be reviewed favorably.

I left the job with the United States attorney on January 30, 2007. I have not received anything from the Department of Justice with regards to my request regarding that pilot program.

That's all I have, Madame Chairman.

SANCHEZ: Thank you, Mr. Charlton.

Mr. Cummins?

CUMMINS: Thank you, Madame Chairman.

I would just echo what has been said. It was an honor for me to serve as a United States attorney. I'm very appreciative of the president for giving me -- for entrusting me with that responsibility. I served purely at the pleasure of the president and they were entitled to take that job back any time they wanted, and I frankly was not entitled to carp about it, and I didn't and neither did any of my colleagues up here.

I would just try to remind everyone, I have a sense that there's people sitting in certain circles, which happen to be the team I think I'm on, that are saying don't these guys know that they serve at the pleasure of the president? Why are they complaining? And the fact is, we didn't complain. I don't believe any of us complained.

This became a dispute between Congress and the administration, and the first time I thought we were entitled to speak was when, frankly, it became horribly mismanaged in the way that they defended their actions to Congress, because the statements that were made were just not consistent with the facts in my case at first, and after they -- and I will say the deputy attorney general straightened the facts out in my case. And I could have walked away and maybe still be in the inner circle of my team. But only at that point did I start becoming aware of the circumstances surrounding these other individuals, and because I was pretty intimately familiar with what had gone on and the history of the thing, I frankly was very uncomfortable that they were being mistreated and that the statements that were being made were being offered up to explain other motivations.

And I didn't think that was fair to them, because I know these people as former colleagues to be very good at what they do. That's not to say they had a stranglehold on their job or that they thought they would be there forever or that they were going to, you know, whine if somebody decided to make a change. But they are entitled to not have somebody offer up pretextual reasons, if that was what occurred.

I don't know the truth about why these decisions were made in their cases. But, frankly, the only reason I continue to be involved in this or outspoken at all is, you know, a great concern on my part, and I think many of you share it, that people are suggesting that these people were doing something wrong that they were never told about and that's why their jobs were taken away, and they probably don't deserve to be treated like that.

SANCHEZ: Thank you, Mr. Cummins. I appreciate your testimony.

Mr. McKay?

MCKAY: Thank you, Madame Chair.

I did not seek this forum when I was asked to resign. I did resign. I resigned quietly. I didn't speak out publicly until the department came forward in sworn testimony and declared that my service and by inference the work of the men and women whom I led in Seattle and in Tacoma suffered from performance-related problems. I felt it was my duty then to step forward and to contest that and I appear here of course under subpoena, along with the rest of the individuals before you.

It was my privilege to serve as United States attorney. And I know that others can serve in that role and that they will serve at the pleasure of the president. I am very pleased to hear the department change its views regarding my service and the work of the men and women in my office and to indicate that it's no longer a performance issue but a difference in policy. That is a change from prior position of the Department of Justice.

What Mr. Moschella just testified to regarding information sharing, I would simply say this: all of my work on the program called LInX was fully authorized by the deputy attorney general of the United States in a memorandum dated April 2004. At that time, the deputy attorney general declared the Seattle Washington State LInX program to be the pilot project of the Department of Justice.

That memorandum remained in force and effect past the time that I was ordered to resign. I was appointed to chair a group of 15 United States attorneys. By then, chairman of the AGAC, the Attorney General's Advisory Committee, Paul McNulty, he chose me to lead the information-sharing work of the United States attorneys.

Deputy Attorney General McNulty, while serving as United States attorney in Virginia, himself led a LInX information-sharing system of which there were five growing to seven and which will I believe continue to grow.

The EARS evaluation, Madame Chairman, that was referenced by Mr. Moschella, in fact all of them relate, I believe, to the leadership of the individual United States attorneys and to their fulfillment or nonfulfillment of Department of Justice priorities.

I know that in my case, it indicated that my leadership was outstanding in every way that I am aware of in that report.

Finally, as to LInX, the department did leave out the fact that in January of this year, I was awarded the Department of the Navy's highest civilian award, the Distinguished Public Service Award for Innovation in Law Enforcement Leadership. That award was given to me because of the LInX program.

Thank you very much.

SANCHEZ: Thank you, Mr. McKay.

I've been advised that we have votes coming up on the House floor shortly. There will be two votes. We will begin the questioning -- I will begin by recognizing myself first. But when in fact they do call votes, we will have to stop and take a short recess until members reconvene and as quickly as we can get members to return, we'll continue.

I'd like to begin by recognizing myself for questioning.

Mr. Iglesias, can you tell me briefly how you came to leave your position as a U.S. attorney?

IGLESIAS: How much time do I have to answer that question?

SANCHEZ: We've got about five minutes, sir. You're going to have to be very brief.

IGLESIAS: Succinctly, until today I didn't know what the official reason was.

On the 7th of December last year, I was doing some Navy duty for a couple of days in Newport, Rhode Island. I was flying back. I took a call from Mike Battle, the director of the executive office. I hadn't talked to Mike for a while and wondered why he was calling. I figured it would be a very good call or a very bad call. And my instincts were correct.

He told me that the administration wanted to go a different way and I was expected to tender my resignation by the end of January, and I said, "Mike," because I considered Mike to be a friend, I still do. He's a decent guy. I said, "What's going on here? I've received absolutely no warning there was a problem. Is there a problem? What's going on?"

He goes, "Look, Dave, I don't think I want to know. All I know is this came from on high."

So I was stunned and I told him that I'd probably have to ask for some more time. In fact, I asked Deputy Attorney General McNulty for a one-month extension until I could find another job and he granted that request.

SANCHEZ: I'm just going to interrupt you and jump in quickly, because I'd like to move along in the testimony.

You've been quoted in the newspapers as expressing concern that your termination was political and that you were appalled by two phone calls you received from members of Congress a few months before your dismissal. Can you briefly summarize for us those concerns?

IGLESIAS: Yes, ma'am.

On or about the 16th of October, while I was in Washington, D.C. on DOJ business, I received a call from Congresswoman Heather Wilson from New Mexico. I called her right back and she said she had heard lots about sealed indictments and she says, "What can you tell me about these sealed indictments?"

Well, asking a federal prosecutor about sealed indictments is like asking a research physicist about nuclear drop codes or launch codes. It's verboten. So I did not answer her question. I was evasive, nonresponsive, and I told her we sometimes did it for juvenile cases or national security cases and I could tell that she was disappointed by my answer. And she says, "Well, I guess I'll have to take your word for it."

Approximately two weeks later I received a call at home from Senator Pete Domenici. I had never received a call from Senator Domenici at home while I was a United States attorney. Initially it was his chief of staff, Steve Bell (ph), who said, "Hey, Dave, the senator wants to talk to you. You know, we're receiving some complaints about you."

And I said, "Oh, OK."

And he goes, "Will you talk to the center?"

I said, "Absolutely."

He handed the phone over to the senator and Senator Domenici wanted to talk to me about these corruption matters, corruption cases. These were widely reported in the local media. And he wanted to know if they'd be filed before November. And I gave an answer to the effect I didn't think so. And he said, "Well, I'm very sorry to hear that," and the line went dead. The telephone line went dead.

So I thought to myself, did he just hang up on me? He didn't call back, I didn't call back, but I had a sick feeling in the pit of my stomach that something very bad had just happened. And within six weeks, I got the phone call from Mike Battle indicating that it was time for me to move on.

SANCHEZ: Why do you believe that the November deadline was important? What was your sense after receiving those two phone calls? What caused that sick feeling in the pit of your stomach?

IGLESIAS: My sense was that they expected me to take action on these widely reported corruption matters and I needed to do it immediately.

The public corruption -- you have to understand that my office has successfully completed the most -- the biggest corruption case in New Mexico history. We successfully convicted two state treasurers and a couple of other guys for public corruption. That retrial had ended in September, and the state was full of rumors that there were more pending matters and it became the focus of the attack ads from both Patricia Madrid, who was challenging Congresswoman Heather Wilson.

I knew anything I said publicly could be used in an attack ad. I distinctly remembered John Ashcroft sitting me in his office in 2001 and saying, "When you come to the Justice Department, politics stay at the front door. You do not engage in politics, David."

I said, "Yes, sir."

So after I got those two phone calls, one asking about sealed indictments, the other asking if I was going to file anything before November, and the unprecedented nature of getting those phone calls, I had the distinct impression that I was to take action before November.

SANCHEZ: Thank you.

Mr. Iglesias, just this past weekend, Senator Domenici sent out a press conference claiming that he had complained about the U.S. attorney's office performance, particularly on immigration issues. What's your response to that, briefly?

IGLESIAS: That's news to me. I had never heard from the Justice Department of any complaints by any member of Congress.

SANCHEZ: Thank you.

I now would like to recognize the gentleman from Utah, Mr. Cannon, for five minutes.

CANNON: Thank you, Madame Chair.

Ms. Lam, I'd like to let you know I watched your testimony in the Senate. I think you're very bright and very tough. I asked a number of questions to Mr. Moschella about your work, largely just to point out the differences between you. I don't think there's any question but that there are differences. How those sort of sort themselves out on a national level is something else.

But I just wanted to let you know that those are not questions to hurt your character or your reputation, which I think you've much enhanced in this process, although I did find it interesting that you pointed out in your testimony here that you decline to speculate as to the reason you -- and the other U.S. attorneys declined to speculate as to the reasons for dismissal. And yet it seems to me that we've just heard Mr. Iglesias speculate, pardon me, ad nauseam, about what he guesses are the reasons for his dismissal.

Let me read to all of you a statement from the U.S. attorney's manual. All of this comes out of Section 1 8.010. "All congressional staff or member contacts with the USAO's, including letters, phone calls or visits of any other means, must be reported promptly to the United States attorney.

Ms. Lam, did you report the letters that you received from Representative Issa and Senator Feinstein?

LAM: Well, in fact I think those letters actually were not directed to me in particular, but actually to the attorney general. And Senator Feinstein, I may have received a copy of one. But there may have been one letter early on that came to me and I did convey that to the department.

CANNON: And Mr. McKay, did you report on your conversations with Mr. Hastings' staff?

MCKAY: Yes, I will. I received a telephone call from.

CANNON: No, no, no. Did you report that conversation with Congressman Hastings's staff? Did you report that to the U.S. attorney general's office?

MCKAY: To the main Justice? No, I did not.

CANNON: Why not? Not important?

MCKAY: No, it was important, but I called in my first assistant and criminal chief and reviewed the telephone call from Congressman Hastings's chief of staff to me following the 2004 governor's election. And we all three concluded that I had stopped the caller from crossing the line into lobbying or attempting to influence me.

CANNON: So in other words, you mean you kept him from going across the boundary which would have made it important enough to report?

MCKAY: That was our conclusion, yes.

CANNON: Mr. Iglesias, did you report the contacts from Ms. Wilson or Mr. Domenici?

IGLESIAS: No, sir.

CANNON: Why not? Were they also unimportant, like Mr. McKay has just pointed out?

IGLESIAS: They were very important. They were very important to my career. Mr. Domenici was a mentor and a friend. Heather Wilson was a friend. I campaigned with her in 1998. I felt terribly conflicted about having to report it. I eventually did.

CANNON: When?

IGLESIAS: In late February I reported it. Not to the Justice Department, but I made -- I started talking to the media about being contacted by two members of Congress.

CANNON: Oh, wait a minute. No, no. You started talking to the media and you call that reporting?

IGLESIAS: No, sir. That's what you just said.

CANNON: What did you say? You said that you reported it later. When did you report it?

IGLESIAS: I did not report it to the Justice Department.

CANNON: But you said earlier that you reported it...

IGLESIAS: To the media.

CANNON: You mean you reported it to the media, meaning you used that as your mechanism for communicating with the Department of Justice?

IGLESIAS: That's correct.

CANNON: Is that appropriate?

IGLESIAS: I think that's your job, sir.

CANNON: No, no, no. You were a U.S. attorney. Was that an appropriate action?

IGLESIAS: Not anymore.

CANNON: You're not a U.S. attorney anymore.

IGLESIAS: I'm a private citizen, sir.

CANNON: Were you a U.S. attorney when you announced that? When you went to the press?

IGLESIAS: No, sir. I said two members of Congress. I did not identify them until, in public, today.

CANNON: Were you a U.S. attorney when you said you had been contacted?

IGLESIAS: Yes, sir. I was.

CANNON: Did you in that press conference talk about upcoming or public corruption actions that would be coming soon?

IGLESIAS: My last press conference was my last day on the job as a United States attorney and there were questions about pending corruption matters. I indicated that I expected there to be a public comment sometime soon.

CANNON: Indicating that the public corruption case would be handed down?

IGLESIAS: I can't speculate as to what the local media thought about the comments.

CANNON: Well, it got reported. The local media said, "As the investigation of the kickback scheme reportedly involving construction of Albuquerque's Metro Court and several other buildings, a corruption case rumored to dwarf the Vigil and Montoya cases, Iglesias said he expected indictments to come up," quotation marks, "very soon," end of quotation marks. "But as he prepared for a news conference today in which he is expected to focus on a defense of his tenure, Iglesias said those indictments would not come under his watch."

Did you make those two comments?

SANCHEZ: The time of the gentleman has expired.

CANNON: Madame Chair, I know we're going to votes, but are we going to have another set of questions, or at least maybe a couple of sets?

SANCHEZ: We may have a second round of questions.

CANNON: I think the rule allows me five minutes for each witness, so I'll just waive that.

SANCHEZ: Why don't you go ahead and answer the last question and after that answer, we will take a short recess in order for members to walk across the Capitol to vote.

CANNON: And that question was, did you say those things that I have quoted to you to the press.

IGLESIAS: I don't recall using the word indictment. I did say that there would be some public announcements as to the questions involving the alleged corruption matters.

And by the way it's Vigil, not Vigil. It's Vigil.

SANCHEZ: OK. Thank you.

The committee will stand in recess while members go to the Capitol to vote. As soon as we can get members to return here after the last vote, we will reconvene the hearing.

(RECESS)

SANCHEZ: The subcommittee will be called to order.

Before we left for votes, we had begun the first round of questioning. I believe Mr. Cannon from Utah had finished his questioning.

And I will now recognize the gentleman from Michigan, Mr. name=ctx34>< Conyers name=ctx36>>, for five minutes.

name=ctx35>< CONYERS name=ctx37>>: Thank you, Madam Subcommittee Chair.

I'd like to turn to Mr. McKay for just a moment. Mr. John McKay, I've been impressed listening to you today and this morning, as a steadfast and professional lawyer. Do you know of anything in your performance as U.S. attorney or were you advised of anything in your performance that would justify a performance-related termination?

MCKAY: No, Mr. Chairman.

name=ctx36>< CONYERS name=ctx38>>: And, of course, it goes without saying that, if nobody was told why they were being discharged to begin with, that leaves you totally up in the air. This is a colossal admission of maladministration on the part of the Department of Justice and just happening not to tell anybody why they were being terminated, because you serve at the president's pleasure. That's quite inadequate to me.

In fact, the New York Times reported on March 1st of this year that you received, Mr. McKay, positive performance evaluation just one year ago, in which you were found to be an effective, well-regarded, and capable leader. Is that essentially what that article said?

MCKAY: I believe that's correct, Mr. Chairman. I did receive, I think, the final evaluation, which are called EARS evaluations for our office, was finished on September 22nd of 2006.

name=ctx37>< CONYERS name=ctx39>>: Now, referring to Mr. Moschella's stated reason for your dismissal, I understand that you were praised by the FBI special agent-in-charge, Laura Laughlin, for your work in promoting information-sharing, and called it one of your greatest contributions to law enforcement.

Do you remember that? And is it correct?

MCKAY: I do, and it is correct.

name=ctx38>< CONYERS name=ctx40>>: In addition, sir, I understand that the chief judge in your district, the Honorable Chief Judge Robert Lasnik, stated, "This is unanimous among the judges: John McKay was a superb U.S. attorney. And for the Justice Department to suggest otherwise is just not fair. By every measure, the performance of his office improved during his tenure."

Had you been aware of those comments made about you?

MCKAY: I read them in the paper, Mr. Chairman, and I was grateful on behalf of the hard-working men and women of my office who really earned those accolades.

name=ctx39>< CONYERS name=ctx41>>: Now, particularly in light of the absence of any other reasonable explanation for your termination, I was disturbed by a report from the Seattle Times, dated February 16, 2000, which I will ask unanimous consent to enter into the record at this time.

SANCHEZ: Without objection, so ordered.

name=ctx40>< CONYERS name=ctx42>>: The report states, in part, "One of the most persistent rumors in Seattle legal circles is that the Justice Department forced McKay, a Republican, to resign to appease Washington State Republicans angry over the 2004 governor's race. Some believe McKay's dismissal was retribution for his failure to convene a federal grand jury to investigate allegations of vote fraud in the race."

Now, is it correct that it was your determination, in your office, not to convene such a grand jury?

MCKAY: Yes, that's correct.

name=ctx41>< CONYERS name=ctx43>>: And what do you make of the Seattle Times' story itself, in general?

MCKAY: Well, I would say, Mr. Chairman, that it is very true that the controversy surrounding the 2004 governor's election was one that had a lot of public debate. I was aware that I was receiving criticism for not proceeding with a criminal investigation. And, frankly, it didn't matter to me what people thought. Like my colleagues, we work on evidence, and there was no evidence of voter fraud or election fraud. And, therefore, we took nothing to the grand jury.

name=ctx42>< CONYERS name=ctx44>>: Thank you. This article went on to report that there were some in Washington State upset about that, including a lobbyist for the Building Industry Association of Washington, who said that he had urged President Bush to fire you as a result.

I understand that, earlier today, you testified in the Senate about a call that you received from someone on behalf of a congressman concerning the 2004 governor's race. Who was that call from?

MCKAY: That call was from the then-chief of staff of U.S. Representative Doc Hastings, Ed Cassidy.

name=ctx43>< CONYERS name=ctx45>>: Please explain when that call was made to you and what transpired during the call, please.

MCKAY: Mr. Chairman, I received a telephone call in the weeks following the 2004 governor's election. It would have been in late 2004, early 2005. He telephoned me and asked for information about any action that my office was taking on the election, again, a very controversial matter.

I related to him the information that was publicly available at the time, which was that the Seattle division of the Federal Bureau of Investigation was taking any information that any citizen had about election fraud or election crime and, in fact, that my office, in consultation with the voting rights section, had done the same, so that anyone with information should report it to the bureau.

That was all I told him, and he then began to advance the conversation, and I cut him off.

SANCHEZ: The time of the gentleman has expired.

name=ctx44>< CONYERS name=ctx46>>: Thank you for your testimony.

SANCHEZ: Thank you, Mr. name=ctx45>< Conyers name=ctx47>>.

The chair now recognizes the gentleman from Ohio, Mr. Jordan, for five minutes.

JORDAN: Thank you. Thank you, Madam Chair.

I want to direct my comments to Mr. McKay, who was just speaking. In the testimony that Ms. Lam read for all of you, she indicated that, you know, everyone understands you serve at the discretion of the president, his pleasure, that you can be removed for any reason.

Of course, it would have been nice if you would have been given a reason. I think Mr. Moschella's point was well-taken. When you think about how this was done, it could have certainly been handled better, and I do sympathize with you in that regard.

Nevertheless, there were reasons given by the department and, in your case, specifically, too, I think they talked about sentencing guidelines and policy differences.

I'm just going to, in respect of the time we have, focus on the policy differences, because tell me if I'm right. And maybe this is me reading too much into it, but it seems to me this scenario was something like this. You had an idea that you thought made sense. The folks at the main office didn't maybe -- weren't as enthused about it, maybe the way to say it. And you advocated strongly for it, maybe even after they said that, you know, this was not a direction we were going to go.

I can respect that; I think my time in the general assembly in Ohio, the governor of my same party and I differed on policy decisions all the time. I can remember specifically having him yell at me on the phone and hang up. Of course, the main difference is, the governor can't get -- he can't get rid of me. Thank goodness. He would have if he could have, but he couldn't.

So I understand the situation. I appreciate people who advocate strongly for what they believe in. But is that a fair assessment of what took place in the policy differences reason that was given by the department for your being not -- or for you being let go?

MCKAY: Well, let me say, I never asked for an explanation...

JORDAN: I understand.

MCKAY: ... of anyone from the Department of Justice. I came forward only when it was stated that there were performance issues in my office, which is now apparently not the position of the Department of Justice.

On the issue of information-sharing, I was the chairman of the information-sharing committee of the United States attorneys. It was my job to speak out on information-sharing. And I did that.

And, no, I was never advised that the Department of Justice wanted to go in a different direction until they told me that I was going in a different direction.

JORDAN: Not at all?

MCKAY: Not at all.

JORDAN: Specifically with this, what's it called, this particular system, called the -- did you call it the LInX system? I don't remember.

MCKAY: Yes, Law Enforcement Information Exchange, which was a Department of Justice-sanctioned pilot program in Washington State, of which I was the leader.

JORDAN: Is that system still in place? Is it being used by the Department of Justice in certain jurisdictions around the country?

MCKAY: It is being used at 160 police agencies in the state of Washington.

JORDAN: Relative to the U.S. attorney's district, is it being used...

MCKAY: Yes, sir.

JORDAN: In how many of the 93 districts is it being used?

MCKAY: I believe in five locations the pilot programs are still running, and it's being expanded to, I believe, seven, one in the Washington capital region, and one in the Los Angeles area.

JORDAN: Well, then explain to me then why the department felt you were too -- I mean, I guess I'm not seeing the connection there.

MCKAY: Well, I wouldn't try to speculate on the connection, and I think you should ask the Department of Justice, because they never explained it to me, Congressman, and I'm just being forthright about that.

JORDAN: Talk to me, then, about the second one, the sentencing guidelines. You were not meeting those criteria that the department had specified that you needed to -- you know, goals that you needed to get to.

MCKAY: Thank you. You know, it's very interesting now, today, for the first time, hearing that their differences with me were policy reasons, but I would say, even as to policy reasons, one would expect that they would have raised that policy issue with me or my office. And this is the first time I've heard from anyone at the Department of Justice about issues regarding about sentencings and sentencing ranges.

I'd point out, Congressman, that what they're referring to is sentences imposed by United States district judges, which fall inside or outside of the sentencing ranges. That has nothing to do with the policy positions of my office. Those are sentences imposed by judges in the Western District of Washington.

They had no differences with me, to my knowledge, on cases brought, the types of indictments brought by my office. In fact, I think the conclusion of their own evaluation team was exactly the opposite.

JORDAN: And how many of those decisions that you referenced did you appeal?

MCKAY: Congressman, we are only allowed to appeal with the approval of the Justice Department, and I couldn't tell you the number that were appealed, but all appeals are approved by the solicitor general at Main Justice, not by our offices.

SANCHEZ: The time of the gentleman has expired.

The chair now recognizes the gentleman from Georgia, Mr. Johnson, for five minutes.

JOHNSON: Thank you, Madam Chair.

Ms. Lam, when Mr. Moschella testified, he stated that there were three ways that equated to performance issues with U.S. attorneys that underlied their resignation request, and those were policy priorities and management. And he said, for you, that you failed in terms of your priorities.

Specifically, he said, on immigration prosecutions, you come from a border district, and your numbers, in his words, don't stack up. And your office came in 91 out of 93 districts, but isn't it a fact that, during the last two months that data was available, which would be June and July of 2006, that the Southern California judicial district ranks second in the number of immigration prosecutions? Isn't that a fact?

LAM: I think that may be true, and that may be referring particularly to alien smuggling offenses. And we have to distinguish between criminal aliens and alien smuggling.

JOHNSON: And isn't it a fact that, in 2005, 97.7 percent of the immigration cases referred to the Southern California U.S. attorney's office were prosecuted?

LAM: I couldn't tell you the figure. I'm sorry.

JOHNSON: Well, those are the figures that I have here, and I don't think that there's any problem with the veracity of those figures.

And he also cited that your priorities as to violent crime -- he mentioned the anti-gun program and said that your prosecutions were at the bottom of the list. But isn't it a fact that, in 2004, the last year that available data is available to us, that your office ranked ninth out of 94 judicial districts in the country in the percentage of ATF cases referred that were prosecuted?

LAM: Again, I'm not familiar with those particular statistics. I'm sorry, Congressman, but I will say this: My concern was making sure that gun prosecutions in the Southern District of California were being handled responsibly.

Project Safe Neighborhood is an important initiative. It was being handled responsibly, because it's a federal and state initiative. And the gun prosecutions in our district were being handled extremely responsibly by the D.A.'s office. There was only one D.A.'s office in San Diego County, and they were handling those gun prosecutions very, very well. There were no complaints from state and local officials.

JOHNSON: OK, thank you. And now your office has been involved and gained notoriety, did it not, in the prosecution of former Congressman Randy "Duke" Cunningham?

LAM: Yes, sir.

JOHNSON: And he entered a plea of guilty and received a sentence equating to about eight years...

LAM: That's correct.

JOHNSON: ... if I recall correctly, and then there was an ongoing investigation related to that corruption probe, is that correct?

LAM: That's correct.

JOHNSON: Do you surmise that your forced resignation would have anything to do with that investigation?

LAM: Well, as I indicated in my opening statement, I'm not here to surmise, Congressman.

JOHNSON: Well, thank you. I appreciate your professionalism, and I guess it's up for someone up here on this panel to make the summarizations of what may have occurred.

But the same thing seems to have happened, Mr. Charlton, in your situation, where they said Mr. -- the gentleman who testified, Mr. Moschella, said that you fell down, in terms of policy.

And he mentioned specifically the taping of the FBI interviews, and he said that that seemed to go against DOJ policy. And I guess he didn't understand exactly why you felt like you needed taped interviews of confessions and admissions from suspects in child molestation, as well as other cases, so that you could help create a better track record, as far as your successful prosecutions go.

But yet, at the same time, it appears that you were involved in a public corruption investigation, as well, having to do with an investigation of Congressman Rick Renzi of Arizona. Is that correct?

CHARLTON: Congressman Johnson, were I still the United States attorney, my response would be, it's our policy to neither confirm nor deny where there's an ongoing investigation of any individual. And I think, with all due respect and intended respect, it's probably the most appropriate thing for me to do, is to respond in the same way to that question, sir.

JOHNSON: Well, let me just...

SANCHEZ: The time of the gentleman has expired.

JOHNSON: Thank you.

SANCHEZ: Thank you.

The chair now recognizes Mr. Keller, the gentleman from Florida, for five minutes.

KELLER: Thank you, Madame Chairwoman.

And, Ms. Lam, let me ask you a few questions. You're a Bush appointee?

LAM: Yes, sir.

KELLER: And did you serve out your full four-year term of your appointment as U.S. attorney?

LAM: Yes, sir, the first four-year term, yes.

KELLER: And you serve at the pleasure of the president, and you can be removed for any reason or no reason at all, is that correct?

LAM: Yes, sir.

KELLER: OK. Do you have any evidence whatsoever that your role in prosecuting Duke Cunningham is the reason you were asked to resign?

LAM: I was not looking for evidence; I don't have any indication one way or the other.

KELLER: I know you weren't look for it, but do you have any evidence, that you have at all, that you were asked to resign...

LAM: No, sir.

KELLER: OK.

Well, let me just say a few things, and I want to be fair to you. And your office is to be commended for successfully prosecuting that case. And you and the career prosecutors deserve a lot of credit for your work. If you never did anything the rest of your life, you will go down in the books as having a monumental achievement.

Did the Department of Justice headquarters ever discourage you from bringing the case against Congressman Cunningham?

LAM: No.

KELLER: In fact, didn't the Department of Justice assist your office in trying to attain documents from Congress in the Cunningham case?

LAM: In the Cunningham case? I'm not sure if that was true in the Cunningham case. It could be; I'm not sure.

KELLER: OK. Now, in your testimony, you said you were given little or no information about the reason for the request for your resignation. Is that right?

LAM: That's correct.

KELLER: And I assume you got the same call that the others have referenced on December the 7th of '06 from Mike Battle, telling you that you're going to be asked to resign?

LAM: Yes.

KELLER: And at that time, he gave you no reasons?

LAM: That's right.

KELLER: OK. Did you ask him for any reasons?

LAM: Yes.

KELLER: And what did he say?

LAM: He said, "I don't know."

KELLER: Thank you.

You heard earlier from Mr. Moschella that he believes the Department of Justice talked to you regarding concerns that they had relating to the prosecution for gun crimes. Did you recall ever speaking to anyone from the Department of Justice regarding any concerns they had relating to your prosecutions for gun-related crimes?

LAM: I spoke to Jim Comey when he came out to visit our office, I believe in 2003. It may have been 2004, but I think it was 2003.

KELLER: OK. Did you ever have any conversations with anyone from the Department of Justice regarding any concerns that they may have had relating to the need to have more prosecutions for alien smuggling?

LAM: I had a conversation with the other southwest border U.S. attorneys and the current deputy attorney general about our need for more resources to prosecute immigration along the border.

KELLER: OK. Were you, in fact, aware prior to being asked to resign that Border Patrol agents, and members of Congress from both parties, and the attorney general himself had raised concerns that, in their opinion, you weren't doing enough to prosecute alien smugglers?

LAM: I did not hear from the Department of Justice about the testimony you referenced today from the attorney general. I knew that there were concerns by the Border Patrol union, although I was in constant contact with Border Patrol management, which disagreed in large part with the union's position.

KELLER: OK. You recall back in February 2nd of 2004 receiving a letter from Darrell Issa to you, concerning the need to prosecute more alien smugglers, particularly someone named Antonio Amparo-Lopez?

LAM: Yes.

KELLER: And then you replied to him a month later, on March 15, 2004, essentially saying that you've referred this matter to the Department of Justice?

LAM: That's our requirement, yes.

KELLER: OK. Were you aware back in September 23 of '05 that 19 members of Congress had sent a letter to President Bush regarding concerns they had relating to the need for more prosecutions in your area of alien smugglers?

LAM: I was aware of that letter, yes.

KELLER: OK. I think you briefly mentioned this, but when I went to San Diego in January of '06, I talked to Border Patrol agents who were concerned about the need for more prosecutions. And I brought that up with Attorney General Gonzales. You've already my question and answer to him.

Is your testimony that, after that hearing, when he gave that, nobody from DOJ followed up with you to talk about the need to step it up, in terms of prosecuting more?

LAM: No.

KELLER: OK. One final thing, some folks on the other side have suggested that maybe you should be appointed as outside counsel to help with Cunningham-related cases or other corruption probe cases. And I understand you already have a pretty good job in the private sector. Are you seeking to be outside counsel for those cases?

LAM: No, that request was made without my knowledge and without consultation with me.

SANCHEZ: The time of the gentleman has expired.

KELLER: Thank you.

SANCHEZ: The chair now recognizes the gentlewoman from California, Ms. Lofgren, for five minutes.

LOFGREN: Thank you, Madam Chair.

And before going into my questions, I would like to ask unanimous consent to insert in the record a letter from Senator Dianne Feinstein to the attorney general, along with the response that she received from Will Moschella, on behalf of the Department of Justice.

SANCHEZ: Without objection, so ordered.

(CROSSTALK)

LOFGREN: ... several people here today.

Ms. Lam, Mr. Moschella and, earlier this week, the Department of Justice told members that it was the low numbers of immigration and gun cases that really was the cause of your need to be replaced and that you should address the president's priorities.

Were you specifically ever told what was expected of you, what the priorities of the president were?

LAM: I certainly knew what the priorities were. I was never specifically told that. I was not enforcing them at the cost of my job, no.

LOFGREN: So no one ever came and said, "You need to do x, y and z, in terms of prosecution, or else we've got a big problem here"?

LAM: No.

LOFGREN: And not about the immigration question, either?

LAM: The immigration question -- I've never made any secret of this, that, given the high numbers on the border, that my view is the way to tackle them -- we can best tackle the problem is to attack the problem at its root, as close to the root as we can get, and that's going to be bigger prosecutions that are going to take more resources and result in lower filings.

LOFGREN: Let me ask you this. It's been referenced, the letter sent by our colleague, Congressman Issa, along with then- Representative Cunningham and 12 other Republican members of the California delegation to the attorney general, then Ashcroft, asking him to require, as I understand it, a zero-tolerance stance against smuggling and a prosecution in every case.

Did the attorney general implement such a policy in response to that letter?

LAM: No.

LOFGREN: If he had implemented a policy such as that, did your office have the resources to actually implement such a policy?

LAM: It would be impossible. There are more than 180,000 people arrested on the California border with Mexico every year. I know in Phoenix, it's almost 600,000 people. I don't think any office in the country has ever prosecuted more than 5,000 or 6,000 felonies a year.

LOFGREN: No, prosecutors, like everyone in government, have to make decisions about resource allocations. We all do, and we don't have limitless resources. Since immigration is a focus of the department's criticism of you today, can you explain to us how you went about prioritizing your immigration-related prosecutions in your district?

What were you trying to achieve? Who did you prosecute? Why did you take the approach?

LAM: Absolutely. When I first arrived in the office in 2002 as the United States attorney, I noted that our filings were very high. However, a large percentage of our filings were being brought against low-level defendants, such as nannies who were returning to the country after going home for the weekend in Mexico and presenting false documents at the border.

These people were being prosecuted as felons and then given time served and released, the same for first-time, low-level foot- smugglers. It was a judicial revolving door, but no U.S. attorney wanted to be known as the U.S. attorney who lowered filings.

The result was, the office was not able to handle any higher- level investigations and prosecutions. So I made the decision that an adjustment had to occur. We studied the problems very, very closely. It took a couple of years to implement. We are now seeing the fruits of it.

And the letter you have just entered into the record, ma'am, was authored by Will Moschella, only three months before I received a phone call on December 7th to Senator Feinstein, defending our approach of seeking longer sentences against the worst offenders on the border.

I think it's a legitimate, valid approach and one that I had every indication that the department was supporting.

LOFGREN: I'm just about out of time. So the department -- you saw the letter drafted by Mr. Moschella to Senator Feinstein, essentially endorsing the approach you were taking. And did you ever hear contrary to that letter, that he didn't agree with the process you've just outlined?

LAM: No, ma'am.

LOFGREN: Has the department ever indicated concern to you that your district was suffering a higher crime rate than others and that your office and your prosecution policies were deficient?

LAM: Congresswoman, in fact, in December of 2006, the department sent a team of people out to study why the city of San Diego had the lowest violent crime rate in 25 years. They had met with me, and with the police chief, and with the sheriff, and had a very good meeting, trying to figure out why we had such a successful, low rate of crime.

LOFGREN: My time is up. I'd just like to say how impressed I am by the professionalism of all the witnesses. Thank you very much.

SANCHEZ: The time of the gentlelady has expired.

The gentleman from Massachusetts, Mr. Delahunt, is recognized.

DELAHUNT: Yes, I'd like to just echo the statement by my colleague from California. I spent 22 years as the elected state's attorney, district attorney in the greater Boston area, and I want to commend all of you for what is your obvious professionalism.

I have to tell you, what really strikes me is the lack of consultation on the part of the leadership at the Department of Justice, with each and every one of you. If there were problems, I would submit that it was incumbent on that leadership to provide you guidance and to have the kind of face-to-face discussion that I believe just simply is reflective of good management.

And in this case, this is a case study of mismanagement, poor management. You've been disrespected, and I think this is a very sad commentary on the operation of the Department of Justice. The longer I listen, the more outraged I become.

But in any event, let me apologize -- and I think I speak for most members on this committee, that your obvious professionalism is to be acknowledged. And let me, at least for myself, extend my gratitude for the contribution you have made to the United States of America.

Having said that, there's some questions here that I will address to Mr. Charlton. And, Mr. Charlton, let me say, if they didn't take your advice in the policy, in terms of taping confessions of child molesters, they ought to reconsider it. They ought to reconsider it.

I think we can all agree that child molestation is a crime that is particularly offensive and totally -- well, let me just let it sit there.

But maybe we ought to have another hearing, Madam Chair, upon that policy and why, particularly what the problem with the Department of Justice is, in terms of adopting what makes common sense, I would dare say, to any prosecutor, to prosecutor, in terms of preserving evidence so that those who molest our children can be incarcerated.

Mr. Charlton, isn't it correct that, on December 7th, Michael Battle, director of the executive office for the United States attorneys, called to notify you that you had been fired.

CHARLTON: Yes, sir.

DELAHUNT: Is it further correct that Mr. Battle refused to tell you whether the firing was related to your performance or to the performance of the office?

CHARLTON: Yes, sir.

DELAHUNT: Did you then make several additional calls to senior Department of Justice officials to try to find an explanation for the termination?

CHARLTON: Yes, sir.

DELAHUNT: Did you finally reach a senior official who told you that your firing was not performance-related?

CHARLTON: I reached a senior official who gave me a different explanation, yes, sir.

DELAHUNT: Well, what did he say to you?

CHARLTON: He told me that this was being done because I raised not only the fact that I had been asked to resign, but that others had been asked to resign. He indicated to me that this was being done so that other individuals would have the opportunity to, quote, "touch base," end quote, as United States attorney before the end of the president's term.

DELAHUNT: OK. And with whom did you speak? Who was that official?

CHARLTON: With William Mercer, the acting associate attorney general.

DELAHUNT: I thank you. And with that, I yield back my time.

SANCHEZ: Thank you.

The chair now recognizes the gentleman from Arizona, Mr. Franks, for five minutes.

FRANKS: Thank you, Madam Chair. Madam Chair, I'd like to yield to the distinguished ranking member, Mr. Cannon.

CANNON: I thank the gentleman.

Ms. Lam, just one little detail I'd like to follow up on. Is your office, the office you've left, competent to handle the prosecution of these two other indictments that were recently filed? Do you have any concerns about the competency?

LAM: Under the current leadership, I have no concerns.

CANNON: Thank you.

And, Mr. McKay, we talked earlier about the phone call you had from the chief of staff for Mr. Hastings. And you indicated or agreed with me, I think, when I said that you thought it was not that important. But it occurred...

MCKAY: No, I did not say that. I'm sorry, sir.

CANNON: I think what you said was that -- I said, so this just didn't arrive at the level of importance to report it?

MCKAY: That's correct, yes.

CANNON: OK, thank you. But as I thought about it later, I realized that, in the Senate, you -- I think it was the Senate; maybe it was here -- you said that it was a matter of concern such that you called your staff together.

MCKAY: Yes, that's correct.

CANNON: So it did raise some concerns with you. Did you talk about whether or not you should call DOJ and report it?

MCKAY: Yes, I did.

CANNON: And what did your staff suggest?

MCKAY: We all three agreed that I had stopped Mr. Cassidy before he crossed the line, and that it was not necessary to report it, and that we would leave it where it was.

CANNON: Great, thank you. And I think that was highly consistent with what you said earlier.

Did you call Mr. Hastings and suggest to him that his chief of staff had gotten close to the line?

MCKAY: No, Congressman, I did not. I believe I made that very clear to Mr. Cassidy.

CANNON: That he was getting close to the line?

MCKAY: Yes.

CANNON: So I guess what I'm going at here, you felt you communicated that what he was doing was getting close to being inappropriate, but you didn't feel any need to suggest that Mr. Hastings had a problem that he needed to correct within his office?

MCKAY: No, Congressman, if it had gotten to that level, I would have been calling the Department of Justice about the call. You see my point, his call was disconcerting to me, and it was enough of concern that I called my two senior advisers together.

But, no, I think Mr. Cassidy was very capable of reporting it to his own boss, and I left it at that.

CANNON: When people do embarrassing things sometimes, they don't tell their bosses. Where's my staff? I'll remind them. No, I'm sorry. That's a little light, I suppose.

The policy, though, doesn't talk about whether it's important or not. It talks about any contact. I'd just leave that with you on the record.

But one of the issues -- and, actually, I sort of missed this. I'm sorry, but I'm just following up on someone else's question. How many sentencing appeals were you recommending that the department authorize? And this goes back to an earlier conversation, I think, with Mr. Jordan.

MCKAY: I couldn't give you the number of appeals that we recommended to the solicitor general. I can tell you one is one that I handled myself, which was the appeal of the sentence imposed on the millennium bomber, Ahmed Ressam, a matter which I personally handled.

And I did recommend to the solicitor general that his sentence be appealed to the Ninth Circuit.

CANNON: Then it's like an isolated case. Were you recommending that more sentences would be appealed, or was that an issue?

MCKAY: Congressman, at some point it became the policy of the Department of Justice -- and I believe it became law for us -- to report to the department sentences imposed by district judges that fell outside the sentencing guidelines. And my office assiduously did that to Main Justice and to the solicitor general's office.

So I can't tell you the number of appeals we recommended, but there were many appeals in my office.

CANNON: Was that reporting essentially a recommendation to appeal, in your...

MCKAY: No, as I indicated earlier, of course, the sentences are imposed by the district judges, not by prosecutors. And so, many times, the judge may impose a sentence below the guideline range not recommended by us. And the procedure, which was followed by me and my office, was to report sentences outside the sentencing guidelines to Main Justice, which we did.

CANNON: In that process, did you talk to anybody about whether or not you should affirmatively appeal those? Or did you take that report as sufficient?

MCKAY: Well, I took the report as sufficient. But we did, on certain appeals, make recommendations that they'd be appealed to the Ninth Circuit, including the Ressam case.

CANNON: OK, so you would make that recommendation, and then you would be authorized or directed by Main Justice to go ahead with an appeal?

MCKAY: Yes, the solicitor general has complete authority over whether matters are appealed to the circuit courts by U.S. attorneys.

CANNON: Great. Thank you. I see the time is about over, and I would certainly look forward to a second round.

LAM: I'm sure I'm breaking some rule somewhere, but I did want to add something...

CANNON: It's my time. You're not breaking a rule.

LAM: Very good. You asked whether my office could competently handle the continuing prosecutions, and I do believe they can. However, I do think it's important to emphasize that, in sensitive prosecutions, high-profile prosecutions, it's very helpful to have a confirmed United States attorney, because of the many interactions with the Department of Justice and the many sensitive issues involved.

SANCHEZ: The time of the gentleman has expired.

The gentleman from North Carolina, Mr. Watt, is recognized for five minutes.

WATT: Thank you, Madam Chair.

Mr. McKay, let me just clarify one thing. Did the gentleman who called you from Representative Hastings' office indicate where he was calling at the direction or on behalf of the Congressman, or did he indicate either way?

MCKAY: He did not. I believe when I responded to him, I told him that I was certain that neither he nor the Congressman was in the process of lobbying me.

WATT: OK.

Mr. Bogden, I think you got your call on December 7, 2006, from Michael Battle, the director of the executive office of the United States attorneys, telling you that your services were not going to be needed any longer, is that correct?

BOGDEN: That's correct, sir.

WATT: And did you get any explanation on that occasion as to whether this termination was related to your performance or to the performance of your office?

BOGDEN: He just told me that the administration wanted the office to go in another direction. When I asked him further what direction that was, he could give me no further details. I pressed him a little further, and he admitted that he wasn't part of the decision process, but he had been given the marching orders to make the call.

I asked him, since I wanted an explanation as to why I had received a call, who I could speak with that could give me some information, he said he thought about that himself, and if he had received such a call, he would reach out to the deputy attorney general, Paul McNulty.

WATT: And did you subsequently talk to any senior Department of Justice officials to get any additional explanation?

BOGDEN: Yes, I talked to a couple of them. I attempted to reach out to Deputy Attorney General McNulty. He hadn't returned my call that day, so I reached out to the acting assistant attorney general, Bill Mercer, and I had a conversation with Mr. Mercer.

I let him know how disappointed I was and how upset I was, because I really felt that our office was going in the right direction and we were working very hard and achieving much. He then gave me an explanation.

He said that the administration has a very short two-year window of opportunity, concerning the United States attorneys positions, and that this would be an opportunity to put others into those positions so they could build their resumes, get an experience as a United States attorney, so that, for future possibilities of being federal judges or other political-type positions, they would be better enhanced to do so.

WATT: So, in effect, you were told that you were being fired to make way for some other Republican Party loyalist or political up-and- comer who the administration wanted to pad their resume?

BOGDEN: That's what it seemed to me to be.

WATT: And who was it that told you that?

BOGDEN: That was the acting assistant attorney general, William Mercer.

WATT: OK. Had you been engaged in an investigation of Governor Jim Gibbons at that point?

BOGDEN: I just have to say, as having been a United States attorney, that matters concerning investigation, I don't think it's appropriate for me to either confirm or deny that there was any such investigation.

WATT: OK. Can you tell us briefly what your EARS report, released in 2005, indicates about your performance?

BOGDEN: Well, I had an EARS report. The evaluation was done March 3 to March 7, 2003. The EARS report, the final version, came out August 4, 2004. It was a very positive report. It was one of those -- a good report, concerning our relationships with law enforcement, the things we were able to accomplish, things like that.

I think also received another letter, June 2, 2005, which was another letter from the executive office, in this case, the director of EOUSA, at that time Mary Beth Buchanan. She had high praise for our office in a number of areas. Those areas included terrorism, white-collar crime, drug programs, our OCDETF program, what we were doing to combat gun violence.

She noted that our district excelled in presenting the message of zero tolerance of official corruption, as was evidenced by our public corruption investigations. She also commented on our outstanding work in organized crime and crimes in Indian country.

WATT: And is it true that, under your leadership, your office was one of the top offices in the country, in terms of numbers of immigration cases, drug cases, gang cases, child exploitation cases, and gun cases prosecuted?

BOGDEN: And I think also identity theft there, sir, all...

(CROSSTALK)

WATT: Identity theft, also.

SANCHEZ: The time of the gentleman has expired.

WATT: Thank you, Madam Chair.

SANCHEZ: Thank you, Mr. Watt.

The gentleman from Tennessee, Mr. Cohen, is recognized for five minutes.

COHEN: Thank you, Madam Chairman.

Mr. Bogden, I'd just like to ask you one question, kind of an aside. I see that the Justice Department asserted you were fired because you resisted an obscenity task force. And I know what happens in Las Vegas stays in Las Vegas, what is obscenity in Nevada?

BOGDEN: Sir, that's the first I have heard that that was any type of issue. That certainly wasn't anything that was relayed to me by either EOUSA or the Department of Justice.

As far as what we've been able to do, we put together a Child Exploitation and Obscenity Initiative back in July of 2005. When we put that initiative into effect, we've been able to increase our child exploitation prosecutions five-fold, so I'm kind of surprised to hear that there'd be anything contesting what we were doing in the areas of either child exploitation or obscenity.

COHEN: Thank you, sir.

I know a little bit more about the area around the delta. And, Mr. Cummins, Congressman Berry speaks very highly of you, as do people throughout Memphis and the delta.

And, Mr. Cummins, Congressman Berry speaks very highly of you, as to people throughout Memphis and the Delta.

You were appointed in 2001 by President Bush, is that correct?

CUMMINS: Yes, Congressman. And while we're talking about your neighboring districts, I'd like to recognize that my home state, home district, Congressman Vic Snyder is in attendance and, I may be presumptuous, but I think he's mostly here because of our friendship and out of concern for what's happening to me and I'd just like to publicly say that I appreciate him.

We don't happen to be in the same political party. In fact, I was his opponent in 1996 for Congress. But he works hard and represents our district honorably and I appreciate his attendance here today.

COHEN: How did you make it -- the gentleman said you made it known you didn't want to finish up your term.

Who in the Justice Department did you allegedly tell that to or did you not?

CUMMINS: The short answer is I didn't. I mean, honestly, Jody and I, my wife, had kind of decided that I had probably passed up some opportunities already during my time as United States attorney and if another one came along, we ought to give it serious consideration.

A lot of our colleagues, maybe a third or more, had already moved on since 2001, when most of us started. And so I don't think I made any secret of that.

I didn't know that you were supposed to keep all -- anyway, I think what he's referring to are press reports that came out about comments I made after they had already called me and told me I was fired, when I did start kind of mentioning to the press that I might be moving on the future.

But, frankly, that was part of kind of my attempt to be discreet and kind of conceal the fact that they had handled it like they had handled it.

I chose to try to present a story like I would have expected them to handle it, which would have been more of a consultative process and treated me like I was a member of the team and called me and said, "Hey, we'd like to put this other guy in your district," and I'm pretty sure I would have done whatever they had asked me to do.

That isn't what happened and I was trying to kind of soften it up so that it wouldn't create a controversy. Obviously, I failed in that.

But I didn't know all these other dismissals were going to take place and had they not, it probably would have gone unnoticed.

COHEN: Kind of like the Cardinals when they call somebody up from Little Rock, they bring them off the farm team.

CUMMINS: That's right.

COHEN: Let you know when you're being relieved.

CUMMINS: That's right. It's a good analogy. The manager can take the pitcher off the mound anytime he wants. It's kind of nice if you get a pat on the rump and if you've been throwing strikes, they shouldn't go to the press conferences and say you were throwing balls. But they can take you off the mound anytime they want.

COHEN: On February 20, 2007, you received a letter, I believe, from Mr. Michael Elston.

CUMMINS: I'm not aware of a letter.

COHEN: A call, excuse me, a call.

CUMMINS: Yes, sir.

COHEN: And what was the gist of that call?

CUMMINS: Well, an article had appeared in the "Washington Post." I mean, I think the call, in short, was stimulated by whatever was said in the article had touched some nerves and there were one or more people at the department at that were irritated that some of us were, at that point, responding to media inquiries, because at that point, they had put forward these explanations about the dismissals that we were concerned about and didn't think were fair.

And I had a conversation with him about it. It was pretty congenial. But at the end of the conversation, there was one part of that I felt like I really -- I struggled with it, because I felt like it was a confidential conversation between Mr. Elston and I.

But I also kind of thought he wanted me to tell the others, and so I passed that part. I conveyed to the people at this table that that conversation had taken place.

COHEN: And you suggested it might be a major escalation of the conflict if they testified. Could it have been a surge?

CUMMINS: I'm not prepared to present my Iraq war plan today, but it was -- I'm reading from the e-mail I sent him and there was a part where I said that when the subject of testifying in Congress came up, that it was obvious that he viewed that as a major escalation in the controversy.

What I was trying to convince him of was that nobody at this table was driving the controversy, that all of us had attempted to take our orders, whether we thought they were good orders or bad orders, and go off quietly, that really this was about Congress calling the department to task on the decisions they made and it was our reaction to the department's position to try and defend these decisions.

And, frankly, from our perspective, they could have told you all it was none of your business. You might not have liked that, but we probably would have been fine with that and we'd have continued to go away quietly.

It was only when they gave the explanations they gave that we -- and I was trying to convince them of that, that we weren't trying to stir the controversy, that we turned down voluntary invitations to testify and that I didn't really necessarily anticipate that there was going to be anymore motivation to stir the pot.

But he made it clear that, in his view, that the department had been very restrained in their treatment of the issue and the disclosures they had made to defend their decisions and that if there was a perception that we were somehow trying to stir the pot, that it was likely that we would have to -- we, and really I'm talking about my colleagues more than me, because I had been separated out at that point -- but that they might suffer some embarrassment because of additional disclosure that would be necessary to defend the department's position.

Some people have tried to characterize that as a threat. Mr. Moschella said I characterized it as firmly. But I said, "It could have been either. I'm not going to characterize for you."

That was the nature of the discussion. It was pretty friendly, but I thought the point was there and I really felt like if I didn't tell these other people that and then they went out and gave an interview the next day and the world fell in on them, that I would feel bad about that.

So I felt like they needed to know this comment was made, go make your own decisions about what you do next, but you need to know the score and that's how I saw it.

COHEN: Thank you. My time is up. I want to thank you for your comments.

CUMMINS: I'm sorry for the long answer.

COHEN: That's fine.

I'd like to ask the chairwoman if we couldn't submit this, with unanimous consent, this copy of this e-mail, to make it part of the record.

SANCHEZ: Without objection, so ordered.

The chair would also like unanimous consent to include in the record several commendations for the work that Mr. Iglesias did in his time as U.S. attorney in New Mexico.

Without objection, so ordered.

We had considered possibly doing a second round of questions. I understand this has probably been a very long day for you.

We still have one other panel of witnesses to hear testimony and to question.

CANNON: Madam Chair?

SANCHEZ: Yes.

CANNON: I think that I have a right to five minutes for each witness and I thought that we had an understanding that we would have a second round.

I would ask unanimous consent that I be given five more minutes to question the witnesses and then if you'd like to dismiss, I would not object to that.

SANCHEZ: In light of the fact that you have been indulgent in granting our members additional time, we will yield to you five additional minutes to ask any follow-up questions.

After that, we will dismiss this panel and call up the third panel of witnesses.

CANNON: Thank you, Madam Chair. It actually has been an extraordinarily long day.

SANCHEZ: Without objection, it will be so ordered.

Mr. Cannon is recognized for five minutes.

CANNON: Thank you. And this has been an extraordinarily long day.

Mr. Cummins, I just want to remind you that leadership changes in parties and we hope you don't change parties. That's not a suggestion that you run against Mr. Snyder or anything like that.

CUMMINS: I appreciate the friendship I've received from my Democrat friends, but I have no intention of changing parties at this time.

CANNON: Good. Let me just say that you all have been put in a difficult position. Mr. Moschella I think apologized pretty profoundly for the difficulty.

That said, I think things have been handled differently by different of you all individually.

I just have to say I'm a little astonished by some of the things that have been said and, unfortunately, whether you said in the Senate -- I'm sorry, in the other body, I think is the correct way to do it, if we're going to be rule oriented here.

And so let me just ask, Mr. Iglesias, I think over in the other body, you talked about loyalty being a two-way street and said you were conflicted about calls from Mr. Domenici and Ms. Wilson and you didn't report those calls.

I think you said that here, as well.

IGLESIAS: Yes, sir.

CANNON: You mentioned, I think, there, I'm not sure if you said here, that Senator Domenici hung up on you. Is that correct? Would you like to add to that?

IGLESIAS: Sir, that's close. I think what I testified this morning was that the line went dead and I wasn't sure if he hung up or what, but I took that as he hung up.

CANNON: Great. And we talked earlier about how you didn't report those contacts and you didn't report them because you were conflicted, because you had some loyalty to these two people.

I get the sense that perhaps Senator Domenici actually recommended you for the job.

IGLESIAS: That's correct, sir.

CANNON: And when you said that loyalty goes two ways, you felt that you were justified in lashing back because he had abandoned you.

IGLESIAS: Well, as I ruminated during the month of December and January, I tried to piece together what had happened and I started hearing in Albuquerque that in early January, they were already asking for names for people to replace me.

This is shortly after the December 7 call.

CANNON: So you felt abandoned I think is the point, right?

IGLESIAS: I think that's a good characterization.

CANNON: Now, you heard Ms. Lam's testimony when she spoke for all of you that you were not going to speculate.

Did you agree with that statement by her that you're not going to speculate about the reasons for your being asked to resign?

IGLESIAS: That's correct, sir, and there's no way that I could prove beyond a reasonable doubt what happened.

CANNON: But you are speculating. You speculated in the Senate. You speculated here, right?

IGLESIAS: Just putting forward facts that happened to me.

CANNON: No, no, no, you're speculating about conclusions relating to those facts and I think you've characterized them as your conclusions, have you not?

IGLESIAS: Sir, I really try not to speculate.

CANNON: I think the term you used was "connecting the dots." Doesn't that mean speculation?

You were the one that did the connection. Nobody came up to you and said, "I was talking to Senator Domenici and I'm going to connect the dots for you, because you're not smart enough to figure it out yourself."

You did the connection, right?

IGLESIAS: I attempted to reconstruct what had happened.

CANNON: Which was speculative.

IGLESIAS: Would you please define speculation?

CANNON: Well, Ms. Lam used speculation. I'm suspecting that you agreed to Ms. Lam's testimony, but you apparently have not been able to contain your concerns.

I will tell you that I know Mr. Domenici. He's really smart and really tough and I just don't believe your characterization of how the phone conversation happened.

I don't think he would have called you and done something that should have been reported to the Department of Justice, which you felt, now you say you felt should have been reported, but were conflicted and didn't do it.

You also conveyed yourself, I think, in the Senate, that this happening as like a Pearl Harbor. Is that fair?

IGLESIAS: My telephone call was on Pearl Harbor Day, sir.

CANNON: And did you feel like this was a Pearl Harbor Day or was it just the fact that it was...

IGLESIAS: On a microscopic level, yes, sir.

CANNON: Well, I would suggest that it is microscopic.

And then you need a month, you're running a big office, but you needed another month in the office to provide a transition in your life. I take it that's because you were not living providently.

IGLESIAS: Sir, there's very few good legal jobs in Albuquerque, unlike Washington, D.C.

CANNON: Let me just ask one final question.

You announced an indictment in the press. Do you think that the lawyer for the defendant in that case should bring or can bring a motion based upon you prejudicing his case?

IGLESIAS: I'm not sure what a criminal defense attorney would do. It's debatable, sir.

CANNON: But you violated policy that is intended to avoid that kind of outcome, is it not, the case?

IGLESIAS: I'm not willing to concede that, sir, no.

CANNON: Well, you've got a few seconds left. Why don't you tell me what it meant?

IGLESIAS: I don't understand your question, sir.

CANNON: You announced an indictment in the press, something you characterized in the case of Ms. Wilson as being like a nuclear scientist being asked to divulge the secrets of a code for blowing up a bomb, and yet you announced it in the press.

That doesn't strike you as bad?

IGLESIAS: No, sir, I didn't. My last press conference, I avoided the use of the term "indictment." I was talking about matters that were commonly reported in the Albuquerque market.

SANCHEZ: The time of the gentleman has expired.

CANNON: God bless you, you were the U.S. attorney and you talked to the press about it.

I yield back.

DELAHUNT: Madam Chair?

SANCHEZ: Yes, Mr. Delahunt?

DELAHUNT: I'm going to ask unanimous consent for a minute.

The inference that was drawn by the ranking member I think is an inaccurate one.

SANCHEZ: Without objection, so ordered.

DELAHUNT: I'd like to address this to anyone on the panel, but my memory is that the attorney general of the United States, U.S. attorneys and district attorneys call press conferences to announce indictments.

Am I missing something or is that the policy of the United States government and the Department of Justice?

CANNON: Would the gentleman yield?

DELAHUNT: I yield.

CANNON: Mr. Iglesias was the U.S. attorney at the time he called the press conference and he didn't announce indictments. He announced that there were going to be indictments in the near future, a very different thing.

DELAHUNT: Well, the statement that you made, Congressman, was regarding the announcement of an indictment. You didn't explain that it was about indictments that would be forthcoming.

But just so that there is no confusion, I think it's very important that we note for the record that it's good policy, sound public policy to announce indictments, whether it comes from a U.S. attorney's office or from the Department of Justice or from a state prosecutor.

SANCHEZ: The time of the gentleman has expired.

KELLER: Madam Chairwoman, I ask unanimous consent for 30 seconds.

SANCHEZ: The gentleman is recognized for 30 seconds.

And I will note this will be the last time that we recognize members who have already had an opportunity to ask questions.

KELLER: Thank you.

I just want to wrap up this proceeding on behalf of all of us, I think, on both sides of the aisle and just let you know that we're very empathetic, because we realize that getting fired from your job is sort of the capital punishment of the workplace.

You all have come together today and exposed yourself to a lot of criticism by waiving your privacy rights, and yet you have acted, all of you, very professionally and we appreciate that.

And you probably did deserve a little better than an icy call on December 7, '06 saying you're fired without given a reason and I'm glad that you got...

SANCHEZ: The time of the gentleman has expired.

KELLER: ... that apology today from the Department of Justice and we wish you all the best in your future endeavors.

SANCHEZ: I want to thank all of our witnesses. We know that it's taken you a considerable amount of effort to get here to Washington, D.C. to testify.

We understand it's been a very long day. I think you've been very helpful in shedding some light on what happened factually in terms of your requested resignations.

You've been professional in your answers and, again, I can't thank you enough for being here today to testify.

You are now excused.

And very shortly we will call the third panel of witnesses.

Thank you, again.

At this time, I would ask our third panel of witnesses to please be seated.

I am pleased to introduce our third panel of witnesses.

Our first witness is Representative Darrell Issa, first elected to Congress in 2000. Congressman Issa represents the 49th District of California and currently serves on the House Committee on the Judiciary.

He also serves on House Foreign Affairs Committee and the House Government Reform Committee.

Our second witness, the honorable Asa Hutchinson, is a former U.S. attorney for the western district of Arkansas. He served as a U.S. Congressman for the 3rd District of Arkansas from 1996 to 2001 and was a member of the House Committee on the Judiciary.

In 2001, he was appointed administrator of the Drug Enforcement Administration. In 2003, he was confirmed as the under secretary for border and transportation security for the Department of Homeland Security and served in that capacity until January of 2005.

Our third witness, John Smietanka, served as a U.S. attorney for the western district of Michigan and as the acting U.S. attorney for the northern district of Illinois.

He also served as the principal associate deputy attorney general for the Department of Justice. He's currently in private practice in southwest Michigan.

Our fourth witness, Atlee Wampler, III is a former U.S. attorney for the southern district of Florida. He also served as a special attorney for the Department of Justice, organized crime and racketeering section, and the attorney in charge of the Miami Strike Force, organized crime and racketeering section, for DOJ.

He is currently the president of the National Association of Former U.S. Attorneys.

Our fifth witness, George Terwilliger, is also a former U.S. attorney, having served in the district of Vermont. He also served as the deputy attorney general for the Department of Justice and as the acting attorney general of the United States. He is currently in private practice.

Finally, our sixth witness, P.J. Halstead, has served as a legislative attorney in the American Law Division of the Congressional Research Service of the Library of Congress since 1998.

In this capacity, Mr. Halstead is one of CRS' primary analysts on constitutional law and Congressional oversight issues.

I want to thank you all for your willingness to participate at today's hearing.

Now, it's my pleasure to ask my colleague, Congressman Issa, to proceed with his testimony.

ISSA: Thank you, Madam Chair and ranking member.

I'll place my formal statement in the record and, hopefully, since I have such a group of knowledgeable people on the U.S. attorney's office, I'll limit my testimony to one U.S. attorney, the U.S. attorney for the southern district of California.

As you've already heard here today, many, many members of Congress, but, to a certain extent, led by my efforts, because I was one of the members, I was the member of the Judiciary closest to the border and in the district that she oversaw, had deep concerns for a very long time about enforcement against human smugglers at the border.

We voiced that in the appropriate ways that I believe this committee needs to do it and this body, the U.S. House of Representatives needs to do it.

We are, after all, the oversight over the administration of the laws we pass and the money that we appropriate.

The president and the vice president were the only two members of the administration elected. They asked for and had confirmed a number of individuals, thousands of them, and they set policy and they ran for reelection on that policy.

And there were two hallmarks of the policy. One was that, in fact, they said they would secure the border, before 9/11 and especially after 9/11.

Secondly, President Bush has lobbied long and hard this body and particularly this committee for a comprehensive guest worker program. In the period 2004-2005-2006, I and my colleagues sent numerous different letters and this committee held hearings in which our concerns bout the enforcement in the San Diego region was voiced.

And I would ask unanimous consent that my records of those letters be included in the record.

name=ctx46>< CONYERS name=ctx48>>: Without objection, it will be included.

ISSA: Thank you, Mr. Chairman.

This was not something that was done in the dark of night. This was not done by whispers or political activities. This was done on a bipartisan basis.

And already submitted to the record is Senator Feinstein's request to get to the bottom of the questions of low enforcement, of one category, that of human traffickers, not the 180,000 who try to cross the border every year, but those who, in fact, profit from the trafficking of human beings, those who are known to leave human beings in the desert to die or in the back of trucks to die.

My investigation and activity began when a 21-time offender, Mr. Lopez, who has been repeatedly mentioned here, was not prosecuted, 20 times caught with illegals, 20 times sent home, 20 times not prosecuted. On the 21st time, it was brought to my attention by the Border Patrol.

And I would also include in the record just a little picture, this is what we call the "wall of shame" that the Border Patrol keeps along the border and they do so because these are people who they caught who were released and they were caught as traffickers, repeat offender traffickers.

It's demoralizing to the Border Patrol and it flies in the face of what this Congress has spent billions of dollars trying to do, which is make America safe and selectively prosecute the worst of the worst, and people who traffic in human beings are the worst of the worst.

Now, before September 11, we didn't have the other component, which is if we can't prosecute those who would traffic a human being, who might be from Mexico or New Zealand or Afghanistan or Iraq or Syria, then how do we separate those who simply, as was said earlier, are nannies coming back from a weekend home from those who, in fact, would do us harm?

That's the reason that, in a very straightforward fashion, I lobbied to change the behavior of U.S. Attorney Carol Lam and I was disappointed repeatedly not to be able to do so.

I would also include for the record the statement by -- she's already left and I apologize for that -- Ms. Lofgren, who, in fact, last summer, on July 5, the day after Independence Day, in fact, particularly wanted to know why this policy was in effect and how outrageous it was that we didn't have, and I'll paraphrase it, "a zero tolerance policy at the border."

She did so while we were overseeing the border with the border chief and a day on which Mr. Sensenbrenner and I had met with the U.S. attorney and she was concerned.

Now, that was before the election. It is now after the election, but nothing has changed.

This committee has a lot of things to look at. The story of Carol Lam is, in fact, that this is an incredibly talented U.S. attorney, a gifted prosecutor, who ran an office that did a lot of big things well.

But I would ask this committee to put into perspective, not all seven people who were terminated, but Carol Lam, she had a border region. She was repeatedly asked by this committee and by our Senator to do better on the prosecutions of those who traffic in human beings.

She didn't do so and my only question for this committee is not why was she let go, but why did she last that long?

name=ctx47>< CONYERS name=ctx49>>: The time of the gentleman has expired.

And we now greet a former colleague, Asa Hutchinson. We welcome you to the Judiciary Committee panel.

CANNON: Mr. Chairman, before Mr. Hutchinson begins, I know that Mr. Issa has been here all day. I understand he's willing to answer questions.

Could we poll the panel to see if anybody has questions for Mr. Issa? Otherwise, I think it's typical to let a Congressman leave if there are no questions for him.

name=ctx48>< CONYERS name=ctx50>>: We do have some that would wish to question him, but I would be willing to excuse Darrell Issa anyway if he has a sufficiently urgent reason to leave, and I would be willing to do it without...

ISSA: Mr. Chairman, although I took a redeye to get back here, I'm willing to stay as long as necessary to meet the requirements of the committee.

If there's a short group of questions that I could answer quickly, great. Otherwise, I certainly would understand and move with regular order.

name=ctx49>< CONYERS name=ctx51>>: If I could break order, then why don't I just recognize the gentleman from Georgia for the questions he'd like to put to you know.

JOHNSON: Thank you, Mr. Chairman.

Congressman, you've focused a lot on this alleged smuggler, Mr. Antonio Amparo-Lopez, who you say had been arrested and deported 20 times without ever having been prosecuted.

When did those arrests and deportations occur?

ISSA: They occurred over, I believe, a seven-year period prior to the first complaint, which was in '04.

Although whether or not he committed other crimes, there's no question that he was not eligible to be where he was and he was deported 20 times before that.

JOHNSON: When you say deported, do you mean that there were actually some deportation proceedings begun by the INS?

ISSA: No. We have a procedure when you're not entitled to be in the U.S., when you're an illegal, and the gentlemen to my left can do a much better job of answering the details.

You can voluntarily, you can waive the claim of various rights.

JOHNSON: So in short, there was no prosecution of the gentleman because he was deported administratively, is that correct?

ISSA: That's correct. Twenty times he was in the U.S. illegally and was let go back to his home country.

JOHNSON: And that was administrative, not a decision that was made by the U.S. attorney's office, isn't that correct?

ISSA: It was correct that -- no, no, I take that back. No, he had been put up for prosecution. Prosecution had been refused previously and he was let go.

The Border Patrol doesn't make a decision on prosecution.

JOHNSON: And how many times had the U.S. attorney's office in the San Diego district refused to prosecute Mr. Lopez.

ISSA: I don't have that figure today. I have to be quite candid, the 21st time was when the Border Patrol had him on the top of the wall of shame and asked me if we could do something before he left the country again.

JOHNSON: So pretty much after 20 times of being administratively deported, a complaint was made that the U.S. attorney's office should commence criminal prosecution against this gentleman.

ISSA: That's correct.

JOHNSON: All right, thank you.

SANCHEZ: Mr. Keller is recognized.

KELLER: Thank you.

Mr. Issa, you were here today. I want to start with the alleged Duke Cunningham connection.

You saw that I asked Will Moschella from DOJ a question and he testified under oath that Ms. Lam's dismissal had absolutely nothing to do with her pursuing Duke Cunningham.

When I asked Ms. Lam, under oath, if she had any evidence whatsoever that her dismissal was really in her prosecution of Duke Cunningham, she said, under oath, "No."

I just want to point out a timeline, based on letters that you sent that totally confirms that. The Duke Cunningham scandal was broken by your local paper, "San Diego Union Tribune," on June 12, 2005, and yet we have a series of letters from you 14 months before that date, calling the attention of the problem to Ms. Lam that she was not prosecuting certain alien smugglers who had been arrested repeatedly.

In fact, your first letter is February 2, 2004. Is that correct?

ISSA: That's correct.

KELLER: And it makes common sense, but you obviously had no idea on February 2, 2004 that your colleague, who had just been reelected over and over again, 14 months from now, was going to be involved in some big scandal. Is that correct?

ISSA: I'm quite certain none of us here or on the dais had any idea.

KELLER: And you aren't the only one to raise those concerns. There were 19 Republicans that signed a letter, but there were also a couple of Democrats who raised the same concerns you did.

Would you talk about that for a little bit?

ISSA: Senator Feinstein has been an excellent Senator for California and she's shown an interest in an immigration reform policy, but at the same time, an assurance that we should make our borders secure, and she had written a letter that almost mimicked the exact same concerns I had and perhaps even generated by the other part of the enforcement process, the Border Patrol, being frustrated.

KELLER: Let me just say, in closing, that I thought Ms. Lam today was very professional and handled herself well. She deserves a lot of credit for the Duke Cunningham prosecution and will go down in the books for that outstanding prosecution.

But you, too, deserve a lot of credit, Darrell. I went to San Diego myself and spent a week in January of '06, riding around with Border Patrol agents, and they reported to me the same frustrations that you had first been calling to the attention of everyone for two years, that they had arrested the same exact people 20 different times, that these people were bringing over about 10 illegal aliens per shot at 1,500 bucks a pop, making 15 grand a week, bring them in 10 times a year.

Next thing you know, that's 150 grand and they were not being prosecuted at all and they were so frustrated because they were risking their lives to arrest folks and they may be shot and then they would turn them over and not be prosecuted.

So I just want to commend you. You were ahead of the curve on that and I can just say, from having been there firsthand, you knew what you were talking about.

ISSA: Thank you, Mr. Keller. And I think you point out the one great flaw that we tried to get changed in the southern district and that was that the U.S. attorney's policy of less than dozen, no prosecution, had become known.

So it created a guaranteed get-out-of-jail free or never go to jail and that, of course, enhanced a particular type of smuggling.

I want to say one other thing, which is that I happen to believe that Carol Lam is a terrific prosecutor and when it came to big cases, she did extremely well.

It really is a question of balance. Our office felt that we needed to have a little more balance on human smuggling and we endeavored to do so and we really regret that we didn't get that during the period of time in which it might have helped in federal policy, including a guest worker program and a national reform which this president lobbied for.

KELLER: I thank you for your leadership.

Madam Chairman, yield back the balance of my time.

SANCHEZ: Thank you.

If there are no further questions for Mr. Issa, you may be excused.

And we will now move on to Mr. Hutchinson.

Mr. Hutchinson, would you please proceed with your testimony?

HUTCHINSON: Thank you, Madam Chairman, Ranking Member Cannon, Mr. Chairman of the full committee, Chairman name=ctx50>< Conyers name=ctx52>>, colleagues, former colleagues, I should say.

It's good to be back in the home of the Judiciary Committee, where I served 1997 to 2001. I have enormous respect for this committee, the work of the members of this committee and for its history, as well.

I am here today testifying as a former United States attorney and I have served in that capacity in the '80s under former President Ronald Reagan, but I've also worked with the United States attorneys both as administrator of the Drug Enforcement Administration, including the current batch of U.S. attorneys, as well as in homeland security, looking at drug enforcement, working with them on immigration enforcement and customs enforcement, as well.

And the purpose of my testimony is, obviously, to answer any questions, but also to talk about the importance of the U.S. attorney and serving at the pleasure of the president in terms of carrying out the president's mission and I certainly support that totally.

The U.S. attorneys who have previously testified, I worked with most of those while I was head of the DEA and at Homeland Security and I have the greatest respect for them.

But I also understand the issue here today is not necessarily the performance as simply the question that they serve at the pleasure of the president of the United States and whenever you serve in that discretionary role, the president can ask for a U.S. attorney's resignation, as has happened many times during the course of history.

But I would just make a couple points before I turn the microphone back.

First, except for the U.S. attorney, except for the U.S. attorney, the federal prosecutors are career attorneys who are not necessarily committed to the priorities of the administration. And without the full support of the U.S. attorney, the president, through the attorney general, would have little impact on the strategic priorities of the federal justice system.

Any new administration could choose from a laundry list of priorities that range from environmental enforcement to federal gun laws to fighting terrorism and the priorities change with the necessity of the time and with the goals of the administration.

With limited resources, the U.S. attorney sets the prosecutorial guidelines, among a long list of federal agencies, and they invariably change with different presidents, but they cannot change without the commitment of the presidentially-appointed United States attorney.

So it's essentially that the U.S. attorneys serve at the pleasure of the president and any U.S. attorney enjoys being able to say, as a mark of his or her authority, "I serve at the pleasure of the president of the United States." And as a necessary part of that power and authority goes with the logical inference that the president can request that individual's resignation.

And it would be unacceptable for a U.S. attorney to refuse to enforce federal immigration laws, drug laws, or to seek the death penalty merely because of disagreement with the administration's views.

If you disagree with that statement, then it would appear to me that the president prerogative should be preserved and protected.

With regard to the issue of the appointment of interim United States attorneys, it is my view that the attorney general should have the authority to name interim U.S. attorneys until the presidentially- appointed successor is named, confirmed and takes office.

And while this is not perfect, it is consistent with the objective of the president having the ability to influence federal enforcement priorities through the attorney general and the United States attorneys.

The role of the U.S. attorney has always been critical to effective enforcement of our federal criminal laws, but it has been substantially increased since the terrorist attacks of 9/11.

The U.S. attorney not only sets enforcement priorities within the district, but also serves as a unique coordinator of the federal law enforcement.

In fighting terrorism, it is essential that the U.S. attorney be in synch with the attorney general and properly coordinate with the Department of Justice.

For this reason, the current authority of the attorney general to name interim appointments makes sense and, in my judgment, should be continued.

And with that, I will yield my time and I thank the committee for its indulgence.

SANCHEZ: Thank you, Mr. Hutchinson.

Mr. Smietanka?

SMIETANKA: I am electronically challenged and I found the button.

Madam Chairman, Mr. Chairman, Mr. Ranking Member, my name is John Smietanka. I practice law in the western area of Michigan, with Smietanka, Buckleitner, Stephenson (ph), Guzon (ph). I have been in private practice now for about 13 years.

For 25 years before that, I was a prosecuting attorney, 12 in the prosecutor's office in Berrien County in the southwestern corner of the state with Congressman name=ctx51>< Conyers name=ctx53>>.

For 12 years, I was a United States attorney for the western district of Michigan. I am a recovering politician, elected county prosecutor three times, and ran unsuccessfully for Michigan attorney general twice.

I love and respect the office of the United States attorney and the U.S. Department of Justice very much. I know many former U.S. attorneys sitting in this panel, colleagues of mine, who equally love the department, love the position of U.S. attorney and is a part of our family and we don't like it when our family is attacked.

I also respect politics and politicians, because I was one, and I admire those people who have the guts to go out and run for office and practice what Aristotle called the art of government.

The primary issue that I was asked to testify about was how to deal with the appointment of temporary replacement United States attorneys when the presidentially-appointed incumbent leaves office.

And I jump to the conclusion and I say that I would endorse the Berman bill, because it is essentially what we came to at the recommendation of Attorney General Meese back in 1986 and served in decent stead until 2006.

That policy, that legislation was a modification of what had been going on for decades before that. In fact, I believe Abraham Lincoln and 26 of his successors found that appointment by judges was not constitutionally offensive and was a fine way to deal with what should be an interim position, and I want to emphasize interim position.

The president has the absolute right under the Constitution, under the Judiciary Act of 1789 to name and to replace United States attorneys. They have been under the direction of the attorney general since the 1870s. They are at-will employees or, rather, inferior officers, the technical term.

I suggest when you're talking about now the replacement of a U.S. attorney, an interim U.S. attorney, I would just highlight eight points and I'll be finished.

The position of the United States attorney has always been and should a political or policy non-career position. It is a very powerful position. With that should come great accountability.

The appointment of temporary successors to the presidentially- appointed United States attorneys under any legislative and/or executive scheme has dangers that have arisen in the past and will do so in the future.

The appropriate work of the United States attorney's office must go on without improper or undue interference from within or without. As I said, the president has a right to qualified political appointees in her or his administration who will promote good government and the administration's policy priorities.

The Congress, courts, media and the public have parallel rights to scrutinize the work of those political appointees. The removal of a United States attorney by fiat or requested resignation should be approached carefully and may have consequences in how that office and the department functions.

To make temporary replacement appointments of unqualified people would be to make a plaything of the office and extremely demeaning to a very critical office.

And, finally, the appropriate way, as I said before, of appointing interim U.S. attorneys is the process that prevailed from 1986 to 2006, essentially the Berman bill. Whether it's 120 days or some other figure is up to the legislature.

Thank you, Madam Chairman.

SANCHEZ: Thank you for your testimony.

Mr. Wampler, you're recognized for your testimony.

WAMPLER: Madam Chairman, members of Congress, I'm Atlee W. Wampler, III. I am appearing here today as president of the National Association of Former United States Attorneys, and I have filed a position statement of the association with the House Committee on the Judiciary.

The association's membership includes former United States attorneys from every state in the union and every executive administration back to President Kennedy.

The association's purpose, as stated in its mission statement, is to promote and defend and further the integrity and the preservation of the litigation authority and independence of the office of the United States attorney.

And it's the preservation of integrity and independence of the U.S. attorney that I'm here to stress today. This bipartisan association is very troubled with these recent press accounts concerning the termination of a sizeable number of well performing U.S. attorneys.

And, yes, the U.S. attorney serves at the pleasure of the president and the president may fire him or her at any time. However, there is a reasoned tradition that U.S. attorneys serve out the terms, the administration's terms, and we vigorously oppose any effort to remove a U.S. attorney because of political displeasure or political reward to another person to hold the title of this important office.

Such terminations, unfortunately, give the perception of and generate speculation as to whether political considerations prompted these firings.

The United States attorney is not an executive widget, is not a fungible executive commodity. These terminations cause disruptions in the U.S. attorney's office.

The U.S. attorney is the chief federal law enforcement officer in the district and he's charged with responsibilities I've set out in my statement, that are set out in the statute, and they are plenary.

Throughout the four to eight years that a U.S. attorney operates in that position to manage a major law enforcement office, he gains education, training, experience and wisdom and becomes a very valuable asset to the system of justice in this country.

And the U.S. attorney's tasks are extremely demanding, demanding total commitment of the public and private lives, and their work is so stressful that the usual problem that we have at the end of administration terms is that these highly experienced men and women leave office and depart to lucrative positions in private law firms.

Most importantly, the United States attorney cannot be perceived to be biased toward nor influenced by any political party in power nor by politically prominent people nor people of great wealth.

That polestar requirement manifests the principle that the U.S. attorney must have a degree of substantial independence and that's the major reason for the tradition of U.S. attorneys serving to the end of an administration's terms.

If the U.S. attorney is doing his or her job of fairly carrying out the prosecution and the laws of the United States, he or she is going to upset some very important and prominent people and people of great wealth. These people are going to complain to the top members of the administration to remove that U.S. attorney for making decisions that adversely affect them.

And it's the duty of top officials in the Department of Justice and it's been through the history of the Justice Department that I have noted over the last 30 years that they politely listen to these complaints and pay them no heed if the United States attorney is faithfully executing the laws of his or her office.

A president and an attorney general must respect that U.S. attorneys are charged with the statutory duty of enforcement of the laws impartially and fairly in the district, which gives the United States attorney an element of independence.

The U.S. attorney is not charged by Congress with being simply a team player.

Such terminations, rightly or wrongly, give a bad perception and, rightly or wrongly, cause speculation that justice is for sale and retribution can be sold and the dogs of justice can be called off.

A president and an attorney general must exercise discretion in this sensitive area of the administration of justice, not to do what president's have the power to do, and that's to terminate a performing experienced United States attorney from office.

SANCHEZ: Thank you for your testimony, Mr. Wampler.

Now, is it Terwilliger?

TERWILLIGER: Yes, ma'am, that's exactly right.

SANCHEZ: Excellent, I'm a quick study.

You are recognized for your testimony.

TERWILLIGER: Thank you very much, Madam Chair and Ranking Member Cannon and Mr. name=ctx52>< Conyers name=ctx54>>.

Thank you for inviting me to appear today, despite the lateness of the hour.

The United States attorney in each district plays a vital role in promoting the safety and wellbeing of all Americans. The process for filling United States attorney positions, whether initially or through a vacancy in an administration, therefore, deserves the thoughtful and careful consideration that they are usually accorded.

I had the privilege of serving as an assistant United States attorney for eight years, as a United States attorney for five years, and to supervise the nation's 93 United States attorneys as deputy attorney general for a period of over two years.

I was involved in decisions to hire United States attorneys, to review their performance and to remove them as necessary.

As a general proposition, in dealing with United States attorneys today, I find that they are their assistants are among the most honorable and dedicated of professionals that one can encounter.

I am here before this committee today because I believe strongly that protecting the integrity of the office of the United States attorney is essential to our system of justice.

It's also my privilege to know personally much of today's leadership of the Justice Department, including Attorney General Gonzales and Deputy Attorney General McNulty.

In addition, I am fortunate to enjoy the friendship of many of their staff members, as well as many long-serving career Department of Justice lawyers, men and women for whom I have sincere personal and professional admiration.

I have every reason to believe that the department's leaders share my views about the importance of maintaining the integrity of and respect for the office of United States attorney.

In my experience, particularly as deputy attorney general, there are advisors variety of reasons why a change in leadership at a United States attorney's office may be appropriate or even necessary. There is no entitlement to the job.

During my own tenure as United States attorney, I believe it would be fair to say that there were those who praised my performance and there were those who found it wonting.

I received my fair share of criticism for both policy and operational decisions. Such criticism comes with the territory. If one does not want to suffer such criticism, one should not assume the office.

I considered the proper execution of my duties as United States attorney to require both a recognition that I serve as a subordinate of the attorney general and the leadership of the Justice Department and an awareness of my responsibility for forwarding within my district the goals and objectives of each administration in which I served.

When I hear Mr. Wampler talk about the independence of the United States attorney's offices, I assume he means the discretion and the respect for the discretion in deciding how to prosecute cases that has traditionally been afforded United States attorneys and their assistants.

But I don't think independence is the right word and I would ask -- independence of whom or of what?

It is decidedly not within the United States attorney's responsibility for him or her to execute his duties in a manner that is politically driven.

Where I or the attorney general believed that a United States attorney's performance in regard to their core responsibilities was wonting, we acted on that belief.

Because the United States attorney serves as a subordinate to the president, I think it is most appropriate that the authority to appoint interim United States attorneys be delegated to the attorney general, as it is under current law.

There responsibility for the supervision and management of United States attorneys' offices has been vested by Congress in the attorney general and the Department of Justice.

It seems to me, as both a practical and a legal matter, therefore, that such responsibility should carry with it the authority to appoint the persons necessary to carry it out.

I certainly recognize that the advice and consent process is critical to the balance of power between the Congress and the executive branch and I would hope that both branches of government would act in a responsible manner to see that the nomination and appointment process necessary to fill a vacancy in the United States attorney's office would move with dispatch.

In conclusion, I regret the circumstances greatly which have led to this hearing. I would respectfully urge all parties to recall simply that United States attorneys, as has been mentioned so many times today, do serve at the pleasure of the president and may be removed for any reason.

I would most respectfully urge Congress and, respectfully, this committee to accord deference to that fundamental aspect of the office and urge restraint in exploring any particular or individual decision regarding a particular office.

I welcome your questions and I would ask that my full statement be included for the record.

SANCHEZ: It will be included. Just so all the witnesses know, your written testimony will all be included as it is written in the record.

Mr. Halstead?

HALSTEAD: Madam Chair, members of the subcommittee, I'm pleased to be here today to discuss the subcommittee's consideration of H.R. 580.

In my testimony today, I'd like to address three issues that are relevant to today's hearing, the first dealing with departure statistics for U.S. attorneys, the other two relating to H.R. 580 itself.

Regarding the first issue, Kevin Scott, a colleague of mine in our government and finance division, has done a great deal of work analyzing information that the Department of Justice has provided to us on the appointment of the U.S. attorneys by date range, covering a period from April 1993 through February 2007.

Using that data, CRS has determined that there have been 97 instances where Senate-confirmed U.S. attorneys have left office during the course of a presidential administration as opposed to the mass departures that we traditionally see during the changeover between administrations.

Of those 97 departures, we've classified 16 of those as resignations, which, for the purposes of our analysis, covers U.S. attorneys whose departures could not be attributed to another category, such as leaving for a position on the federal bench or to enter or return to the private sector.

Ten of those 16 resignations have occurred during the current administration and, as you're well aware, recent news reports have stated that five of those 10 resignations were made at the request of the Department of Justice over the past three months.

Additional news reports have state that two other U.S. attorneys who had indicated that they were leaving in order to return to the private sector were also asked to resign and we have news reports indicating that one other U.S. attorney has been asked to resign, but is still serving.

So in sum, there are reports indicating that a total of eight U.S. attorneys have been asked to resign in the past three months and the research we've conducted thus far has not revealed a similar streak of departures that reportedly stem from politically-motivated dismissals.

It's important to note, however, that our research on this point is ongoing and may be aided by any future disclosure of information from the Department of Justice.

These dismissals have drawn attention to how interim U.S. attorneys are appointed, in large part, based on the perception that recent changes to that appointment process are closely linked to the recent string of dismissals.

One of the criticisms that's been leveled at the new appointment scheme is that it unconstitutionally deprives the Senate of its advise and consent function.

I've laid this out in detail in my prepared statement, but there's no substantive basis for that argument under current constitutional standards. It's well established that U.S. attorneys are inferior officers of the United States and that Congress could, therefore, remove any advise and consent requirement for their appointment all together, if it so desired.

The constitutional flipside to this argument has been raised by the Department of Justice and others in opposition to H.R. 580, the argument being that a return to the prior appointment scheme would be inconsistent with the separation of powers doctrine, even in light of the long history of judicial involvement in the selection of United States attorneys.

The same cases that establish that U.S. attorneys are inferior officers have also addressed this issue and have all rejected the argument that judicial appointment of federal prosecutors is constitutionally problematic.

Ultimately, any action that Congress takes with regard to H.R. 580 will hinge on a weighing of the important institutional and policy considerations that surround the appointment of U.S. attorneys and not on constitutional factors.

This brings me to my final point. If Congress, as an institution, is concerned with the potential that the current appointment dynamic may result in the prolonged circumvention of the Senate's advise and consent function for U.S. attorneys, it needs to be aware that even upon a return to the previous version of Section 546, there is still a possibility that the Department of Justice may rely on preexisting legal rationales in a way that impacts that advise and consent function.

Our research indicates that under the current administration, the Department of Justice has made repeated use of the Vacancies Reform Act to install individuals as acting U.S. attorneys and also made several successive interim appointments under the prior version of 546.

Used in conjunction, those two approaches can be used to place interim and acting U.S. attorneys in place for up to a year, if not longer.

It's well within Congress' power to restrict the use of these statutes in such a fashion, but ultimately, as with the question of whether to retain the current appointment dynamic or to return to the previous standard, any decision will hinge upon a Congressional determination as to whether the potential benefits of this statutory flexibility outweigh the dangers such a dynamic poses to the institutional prerogatives of Congress.

Madam Chair, I'll conclude my testimony there. I look forward to working with all members and staff of the committee as it continues its consideration of this issue.

I look forward to answering any questions you might have.

Thank you.

SANCHEZ: Thank you, Mr. Halstead.

I now recognize myself for five minutes for the purpose of asking questions.

Mr. Halstead, my first question is actually for you.

Has the Department of Justice complied with your request for information in order for you to finish your report on U.S. attorneys who have served less than a full four-year term from 1981 to 2006?

HALSTEAD: Kevin Scott and Henry Hogue in our government finance division have been doing the vast majority of work regarding the statistical compilations.

My understanding is that there was a disclosure of information from the Department of Justice on February 24, 2007 and I believe we've been told informally that the Department of Justice is in the process of winnowing through its records to see what further disclosures might be made.

SANCHEZ: Thank you.

My next question is for Mr. Wampler.

We learned today that both Mr. Charlton and Mr. Bogden were told by the then acting assistant attorney general, Mr. Mercer, that they were being terminated during the last two years of the Bush administration to, in essence, make way for Republicans to have their resumes. This would assist them in their political or legal careers.

Do you think that that is a good reason to end the services of a sitting U.S. attorney? Does this call into question the previous statements of the Justice Department that they were dismissed for, quote-unquote, performance-related reasons?

WAMPLER: Without commenting on other people's testimony, our association would advocate that a U.S. attorney should not be changed, particularly this close to the end of the administration.

After all these years of experience and dealings that they've had, they are highly trained executives, other than if they disobey a particular order or a direct requirement.

Despite that, these butting of heads between Department of Justice officials and U.S. attorneys happen often in many administrations and these are things that should be worked out between well meaning executives to faithfully carry out the laws.

SANCHEZ: Mr. Wampler, Mr. Moschella testified earlier today that MR. McKay was asked to resign only because he championed an information system and Mr. McKay testified thereafter that everything he did in connection with that project was authorized by the deputy attorney general, Paul McNulty.

In fact, Mr. McKay won a distinguished public service award for his leadership on this project in January of 2007, just one month after he asked to resign.

Do you believe that a United States attorney should be forced to resign for this reason alone?

WAMPLER: I believe the president has the power to do that and our association would advocate that the president and the attorney general exercise great discretion and not do that.

SANCHEZ: Mr. Terwilliger, you stated that the U.S. attorneys serve at the pleasure of the president and seemed to imply that the president should be able to fire them for no reason or no good reason, and I have a question for you, because it's very analogous to employment law.

There are at-will employees in employment law and yet we don't believe it's appropriate to fire employees for their race.

Would you argue that it's proper for the president to remove a U.S. attorney for his race?

TERWILLIGER: Of course not.

SANCHEZ: Would you argue that it would be, in the employment law context, improper to fire an employee for whistleblowing of wrongdoing or misfeasance?

Would you, in your statement about the president has the absolute discretion, would you think that it is appropriate for a president to fire a U.S. attorney if he or she were engaged in whistleblowing or bringing misfeasance to somebody's attention?

TERWILLIGER: It would depend on the circumstances. If the U.S. attorney, for example, went out of a channel or a chain of command or disclosed grand jury material in the process of whistleblowing or announced an indictment...

SANCHEZ: Let's just stay with the...

TERWILLIGER: ... in the press in violation of the law and department rules, yes, then I would think it would be appropriate.

SANCHEZ: But would you agree that there are probably strong public policy reasons for not allowing the president absolute unfettered discretion to fire U.S. attorneys for some very bad reason?

TERWILLIGER: No, because the Constitution is what defines the president's authority to appoint and remove inferior officers and under that system, the check on the president's authority is not legal in nature, it is political, such as having this hearing.

And if the Congress or the public, for that matter, through its elected representatives, think the president has made a bad decision, it can exercise the political check to that power by holding a hearing of this nature, among other things.

SANCHEZ: So you're essentially saying the only remedy would be something political, but that there should be no framework under which a president is prohibited from firing or dismissing U.S. attorneys, even in some instances that we could imagine that would be very bad reasons.

TERWILLIGER: Respectfully, ma'am, I believe that's what the Constitution says is the way it should be done.

SANCHEZ: The question I'm asking you is whether you believe that is.

TERWILLIGER: Well, I believe in the Constitution, so I believe if that's what the Constitution -- if I'm correct that that's what the Constitution dictates, we should follow that dictate.

SANCHEZ: All right, thank you.

I would now like to recognize the ranking member, Mr. Cannon, for five minutes.

CANNON: I thank the chairwoman.

Mr. Wampler, you talked about it being a reasonable position to allow a U.S. attorney to serve out his term.

Let me ask you, in your mind, does that change when a new president comes in and decides to replace all U.S. attorneys at once, as, for instance, Clinton did?

WAMPLER: Yes, sir.

CANNON: So at the beginning of an administration, it may make some sense. But when the administration is ongoing, taking a big group of U.S. attorneys and replacing them is more difficult.

WAMPLER: They're just two different concepts, sir. When a president assumes office, he gets to appoint these officials. He gets to appoint the U.S. attorneys. So they're going to all be new.

CANNON: Often, U.S. attorneys continue from one administration to another, don't they?

WAMPLER: Yes, sir.

CANNON: In other words, a new president should have the right to replace everybody, but it creates this kind of a political response, I think Mr. Terwilliger would say, if he does something that is characterizable as beyond the mark.

WAMPLER: I don't think so. I think when a new president assumes office, it's been pretty much a history that the people that were appointed by the prior administration are ready to submit their resignations.

CANNON: Then why is it that you couldn't ask eight U.S. attorneys to quite, less than 10 percent? Why would it be different?

WAMPLER: Well, it's the same president and he's the one that appointed them in the first place and they have now gained four, six years of experience. And it's not that he can't, he certainly can. We're advocating he shouldn't.

CANNON: Let me shift gears just a bit and ask all the panelists. If we went back to the way it was and the judge appoints for some period of time, is there any question but that the president, if he disagrees with the appointment, has the ability to say to the U.S. attorney appointed by a judge that he doesn't want him to continue serving and be able to ask for his resignation or fire him?

So there's a check, in fact, on judges doing it. Is there any historical reason to think that would not be the case?

SMIETANKA: No. Remember -- if I could, on this point -- the Judiciary Act creates the position of United States attorney, 1789. It has been modified to talk about the replacement and how that U.S. attorney fits into the structure of the Department of Justice in the mid 1800s.

However, the principle that a president can withdraw his authority from that person at any time is true whether or not, in my view, whether or not a judge appoints or the president appoints.

CANNON: Mr. Halstead?

HALLSTAND: Yes, I can provide the committee with citations. It's a fairly well established principle that the president retains that removal authority.

CANNON: Thank you.

Mr. Terwilliger, let me ask you a question about our prior panel. I know you heard that.

Using quotes here, based on the press conference that Mr. Iglesias called, the paper referred to that as "as he prepared to leave his office."

So he was still in office and he said, "We put corruption cases back on the front burner. As for the investigation of a kickback scheme reportedly involving construction of Albuquerque's metro court and several other buildings, a corruption case rumored to dwarf the Vigil and Montoya cases."

"Iglesias said he expected indictments to come very soon. But as he prepared for a news conference today, in which he expected to focus on a defense of his tenure," putting his tenure above, I think, his -- "Iglesias said those indictments would not come under his watch. 'I wish I would have that honor,' he said, 'but it will have to wait for my successor.'"

In your view, is that an inappropriate thing for a retiring U.S. attorney to do?

TERWILLIGER: With respect, Mr. Cannon, I don't want to judge based on newspaper reports alone, which I'm sure have been accurately reported, what a particular individual has done, particularly in a matter as serious as that.

I will say this, though, that I understand perfectly, having been a United States attorney, how difficult it is to involuntarily give up your job and I understand that there may be some residual bitterness about that.

But whatever the circumstances may be, whether it's viewed as a good reason or a bad reason, it cannot possibly justify someone -- and I'm not saying this is what Mr. Iglesias did, because I don't know, but it cannot justify the very, very serious transgression not just of department policy, but of the law, of reporting about an indictment that hasn't been returned, that's prospective.

Members of the political establishment are vexed constantly by leaks out of the executive branch, whether they're politically- motivated or somebody trying to feather their nest, talking about what's happening in investigations and potential charges and so forth.

We investigated leaks when I was at the Justice Department. We took complaints from members at the department about leaks, very vociferous complaints, as I'm sure some members of this committee that were around then remember, and it continues up to the present day.

It is a very serious transgression when it occurs.

SANCHEZ: The time of the gentleman has expired.

CANNON: I yield back.

SANCHEZ: The gentleman from Michigan, Mr. name=ctx53>< Conyers name=ctx55>>, is recognized for five minutes.

name=ctx54>< CONYERS name=ctx56>>: Thank you.

Madam Chairwoman, this is an important panel, because we are now examining the bill that is before the subcommittee in a way that it hasn't been given the attention previously.

I want to commend you for including this third panel, because it's very important.

House Resolution 580, in essence, suggests that we go back and review the current provisions of the Patriot Act and the measure that we are reviewing has only been in the law since March of 2006, when the president signed the bill.

So it seems to me, Mr. John Smietanka, that we really need this hearing maybe further because I don't think that this provision -- we're trying to deal with so many other antiterrorist considerations at the time and I solicit your viewpoint for that opinion.

SMIETANKA: I think that it's now 7:00 on a long day and to try to get into constitutional or organizational issues on this bill is rather difficult.

I think that I agree with you, Mr. Chairman, that it does deserve attention and careful attention, because as the representative of the Congressional Research Service said, I believe, a few minutes ago and, also, in his prepared statement, that this is a matter of a close call and a careful examination by this committee.

This is serious business. This is very serious business.

name=ctx55>< CONYERS name=ctx57>>: And it has a lot to do with the public perception of how the U.S. attorney's office operates.

To me, I think that that raises much of the discussion that's gone on today, that we've got a problem of perception here. I don't know if we'll ever discover what was in the hearts and minds of so many people, but perception is a very important part of what we're dealing with in making a decision to change this law back to the way that it was.

SMIETANKA: If I could touch on that point. You have a delicate balance here between the legislature, the executive and the judiciary. You have two acts and a proposed modification of the 546(d), which, in juggling around in how you put this together -- Mr. Terwilliger and I, who served together in the same office, a few hundred feet away from each other, have had many discussions on many different issues.

You have heard one point of view from him. You can hear another from me as to the balancing here. I think it deserves a lot of attention and a careful examination and I would compliment Representative Berman for bringing this to the committee as a bill. But it does need attention.

name=ctx56>< CONYERS name=ctx58>>: I think so, too.

Can I ask Asa Hutchinson, a former colleague on the committee and who has served in a number of important areas in government, about weighing in on this, Asa.

How do you think you'd recommend the committee move forward on this very sensitive matter?

HUTCHINSON: Well, I, again, commend the committee for serious discussion of it. I think the debate today has been helpful.

The comments of the representative of the Congressional Research Service need to be looked at very carefully.

But, fundamentally, I think you have to separate the circumstance of the seven or eight U.S. attorneys who testified today or who have circumstances that they're concerned about with the constitutional issue and the prerogative of the president, which I think we all fundamentally agree with, that to carry out, whether it's President Clinton or whether it's President Bush, that the U.S. attorneys are key.

And the prerogative of the president to keep them in office or to ask for their resignation, that is a constitutional prerogative that I think is important.

So I would encourage the committee...

name=ctx57>< CONYERS name=ctx59>>: I hate to tell you this, but that's a separate question entirely.

HUTCHINSON: I would agree with you.

name=ctx58>< CONYERS name=ctx60>>: And, finally, Mr. Wampler, you represent hundreds and hundreds of former U.S. attorneys.

Do you think that they would join with myself and Mr. Berman and Mr. Scott, all members of this committee, that we move back -- we're not creating a new system.

We're going back to a system that was taken out in a conference report and which nobody knew that this had happened. This was not debated in the committees, was never debated on the floor of the Congress.

It appeared, as you know how these things on conference reports happen.

WAMPLER: The debate that I had seen among the officers and directors was that the old system worked. It was upheld in the courts regarding the various balance of power and it provided a practical incentive for the president to nominate a new U.S. attorney.

So for those reasons, the consensus that I got from our members was to go back to what was there before.

SANCHEZ: The time of the gentleman has expired.

The chair would now like to recognize the gentleman from Ohio, Mr. Jordan.

JORDAN: Thank you, Madam Chair.

Mr. Terwilliger, is your critique of the old system a simple separation of powers argument or were there practical problems over that, I believe, approximately 20-year period when it was in effect?

TERWILLIGER: Thank you for asking me, because there were practical problems and I think there are practical problems.

I was appointed United States attorney three times, the first by the court, then by the attorney general, then by the president, while the political process sorted itself out.

I had colleagues at the time, I can remember one in particular, it's called the great sofa story, which Mr. Smietanka may remember, where the court appointed one U.S. attorney. When that appointment ran out, the attorney general then appointed another individual to be interim. That ran out and it reverted back to the court again and the sofa that one of those U.S. attorneys used had to keep being moved in and out of the offices as it changed.

There is a real possibility where the chief judge does not consult with the department about the appointment, that you could have successive different individuals in there.

I really think, as a practical matter, what I said in my remarks, I really well and truly believe, and that is if you're going to give the responsibility for running these offices to the department and the attorney general, then please give them the authority to put the people in there who have to do the job.

JORDAN: And let me pick up on something that Mr. Hutchinson said in his testimony.

He talked about the weight that comes from the ability to say, "I serve at the pleasure of the president," and I would certainly agree with that.

Would the panel agree that that's the case? You're all shaking your head.

Then maybe my question should go to Mr. Smietanka here.

Do you think that weight is then diminished if, in fact, the attorney has not been appointed by the administration and has, in fact, been appointed by the judge who that attorney may, in fact, stand in front of?

SMIETANKA: Well, I think you caught it, except for one word and that was diminished because of an appointment by the administration.

I think the operative word...

JORDAN: I don't think it matters. I think the...

SMIETANKA: No, it does. No, no.

JORDAN: Well, can that person still say that he or she fully serves at the pleasure of the president, when, in fact, the president is not the one putting them in front of -- not responsible for them being in front of the judge that they are now bringing the cases?

SMIETANKA: But your question was, with deference here, is that you said does the weight of being a presidential appointment, is that of significance in doing your job.

JORDAN: And you shook your head "yes."

SMIETANKA: Absolutely, absolutely. A presidential appointment, Senatorial confirmation gives you gravitas inside the department, outside the department and wherever you go.

Now, it's not quite the same thing with an attorney general appointment, an interim attorney general appointment.

JORDAN: That wasn't my question. My question was...

SMIETANKA: I thought it was.

JORDAN: ... the attorney general appointment, presidential appointment, prior to confirmation versus an appointment by the judiciary, where the president hasn't weighed in on that individual.

Neither one are going to be confirmed, we understand that. It's just who put them there.

My point is I believe if, in fact, the AG put him there, in that 120-day time period, they're still subject to withdrawal by the president and the president put them there.

So there has to be more weight with that individual under that circumstance than when the judiciary does it.

SMIETANKA: My whole point here, as I mention in my prepared remarks, is that we should speed the process along for getting a presidentially-appointed, Senatorially-confirmed U.S. attorney.

JORDAN: Agreed.

SMIETANKA: That's the key. I happen to think that because of the -- this is unfortunate. This is a comment on Washington and the world today.

The confirmation process can drag on for a long time and we need to push people to get it done fairly and expeditiously.

I sat for a year...

JORDAN: So you believe a judge appointing it pushes it quicker and faster than the administration appointing it, not taking in the fact the separation of power argument.

SMIETANKA: I agree. The separation of power, that's done. That's a passe argument.

What is important here is...

JORDAN: I disagree.

SMIETANKA: Well, it's passe according to Morrison v. Olson. But the Berman bill provides for attorney general appointment.

As I said before, it doesn't make much difference whether it's 120 days or 150 days or whatever it is or five days.

My point is that the danger of that judge getting out there and getting involved should move the legislature, the Senate, not this body, the other body, to get moving and that's the pressure that I think is important.

SANCHEZ: The time of the gentleman has expired.

The chair would now like to recognize the gentleman from Georgia, Mr. Johnson, for five minutes.

JOHNSON: Thank you.

Mr. Smietanka, the USA Patriot Improvement and Reauthorization Act of 2005, which was signed into law on March 9, 2006, amended 28 USC Section 546 in two critical respects.

First, the act effectively removed district court judges from the interim appointment process and vested the attorney general with the sole power to appoint interim United States attorneys, and I believe that you all had been talking about that with respect to the last question or series of questions.

But, secondly, the act eliminated the 120-day limit on how long an interim United States attorney appointed by the attorney general could serve and, as a result, judicial input in the interim appointment process was eliminated and, perhaps more importantly, it created a possible loophole that could permit United States attorneys appointed on an interim basis to serve indefinitely without Senate confirmation.

What is your thought on the ability of an interim U.S. attorney to serve for an indefinite amount of time, never to be confirmed by the Senate?

SMIETANKA: That has happened. In Puerto Rico, for 6.5 years, we'd had interim U.S. attorneys. That caused a great deal of controversy in Puerto Rico because of that. That was during the '90s, during the Clinton administration.

In the Bush administration and the Reagan administration, the same problem or virtually the same problem happened with the Virgin Islands.

JOHNSON: Now, under the Clinton administration, though, it happened. I don't know how it happened under 28 USC 546(c), but it certainly can happen, according to the current law that went into effect on March 6, 2006, signed into law.

And I don't really want to talk about what happened in Puerto Rico. What I want to talk about is the current state of the law now and whether or not you think it should revert back to how it was in accordance with the bill that has been introduced or the resolution that's been introduced by Representatives Berman and name=ctx59>< Conyers name=ctx61>>.

SMIETANKA: My point is what I said earlier, that we should do everything we can to get a presidential nominee to the Senate, get them confirmed in the office, because I think it is extremely important that the president have that kind of person, with that kind of swag, if you will, or clout as the U.S. attorney, and I think that that, by definition, is in that process.

The person who is the -- I want to use this in the proper term, I'm using the term political, a political appointment or a policy appointment.

One of the factors which is very important, I think, for a good U.S. attorney is to have a comfort level with making political/policy decisions, dealing with the public. These are issues, Congressman.

JOHNSON: And they can do so knowing that they are appointed and confirmed for a full four-year term or until such time as the president would leave office.

SMIETANKA: I think there's another aspect, too, and somebody else mentioned, somebody else asked this question.

Can U.S. attorneys carry over into the next presidential term and is that appropriate? Maybe that is the question that wasn't asked, is it appropriate.

I would say it is.

JOHNSON: Certainly, it's authorized that they would serve until such time as the next appointee was confirmed by the Senate.

But what are your thoughts on that, Mr. Wampler?

WAMPLER: As I expressed before, the general consensus of the officers and directors of the National Association of Former United States Attorneys was that the old system worked relatively well.

The constitutional challenges were all turned back. It's a resolved issue regarding the separation of powers. And it provides incentive for the president to get the nominations in faster and to get the Senate to look everybody in the eye.

JOHNSON: Good.

How can you defend it, Mr. Terwilliger? How can you defend the current scheme?

TERWILLIGER: For the reasons I mentioned, because the current scheme could conceivably result in the circumstance you described, which I agree with you is an undesirable circumstance.

It isn't a reason, in my judgment, respectfully, to throw the baby out with the bathwater. I still think the benefits of having the attorney general make the interim appointment are preferable.

And, again, I think if it were abused, for the reasons...

JOHNSON: What about the...

SANCHEZ: The time of the gentleman has expired.

JOHNSON: The cap on...

SANCHEZ: I'm sorry. If you're clarifying the point.

JOHNSON: There being no time limit on how long an interim appointee could serve.

TERWILLIGER: I take your point and I think...

JOHNSON: Is that good or bad?

TERWILLIGER: Well, I think anything that moves it back to the district judges is not well advised. That's my position.

I do think it is an undesirable outcome if an interim appointment lasts for an extended period of time.

There may be circumstances, given the nature that these are political appointments, where there will be a political stalemate of some kind and having it revert to the district court, to me, does not justify taking the process out of the political realm that it is designed by Congress and by statute to be in.

But Congress makes the judgment on this, it is your determination.

SANCHEZ: The gentleman's time has expired.

We have among the subcommittee members a colleague from the judiciary full committee, who is, in fact, the author of the bill that we are currently discussing.

He has been patient and sitting in on the majority of the testimony that's been given today by the three different panels.

I would ask unanimous consent that he be granted five minutes to question the last panel of witnesses.

Are there any objections?

Without objection, so ordered.

Mr. Berman, you're recognized for five minutes.

BERMAN: Well, thank you, Madam Chairwoman, and I am cognizant of the time.

But discarding the admonition that one shouldn't ask questions that might draw out answers that he didn't want to hear, I'd like to ask Mr. Terwilliger a couple of questions.

Good to see you again, by the way.

TERWILLIGER: You, too, sir.

BERMAN: And I'd like to follow-up on Mr. Johnson's questions.

In my hypothetical, if the president of the United States, newly elected, seeing a Senate and a Senate Judiciary Committee that he thinks would constrain him more than he wants in the context of who he'd like to be administering justice through these U.S. attorney posts, decides the way we're going to handle this is name interim U.S. attorneys for the duration of the time that the Senate looks adverse to the people we want, would you think that would be a wise and good policy?

TERWILLIGER: No, and if I had the privilege of advising the president, I would tell him that was a very bad policy.

But that being said...

BERMAN: I got the answer I wanted.

TERWILLIGER: OK.

BERMAN: I understand your point. It could very well be that there is not a separation of powers constitutional issue in this, but if I were you and you had been given an opportunity, you would have responded to that point by saying, "But from a policy matter, do you really want district judges having the authority at some point to name the chief prosecutor in the district in which they're presiding?"

TERWILLIGER: Well, that is my point, Mr. Berman.

BERMAN: Right, and I understand that point.

When the chairman and I introduced this bill, we didn't go back to the pre-1986 or '84 formulation where the district court makes that appointment and, more than that, there may be even reasons not to do it this way.

But I guess I'd like you to respond to this context. We pass a reauthorization of the Patriot Act. It goes through both houses. The Justice Department never comes forward with this suggested change.

It goes to a conference committee. The people on the conference committee have no recollection of this, including the chairman of the Senate conferees, and we know, we think we know, we know nothing for sure, but we think we guess that what probably happened is the Justice Department got the staff of either the House or Judiciary to insert this at the last minute, as Mr. name=ctx60>< Conyers said, never debated, never discussed.

And all I'm saying is, don't you think it's a better situation to go back to the status quo ante and then have a deliberative discussion of the best way to avoid the potential that you say is bad or a four- year interim U.S. attorney appointed by the attorney general to avoid the constraints that the confirmation process would otherwise put on him versus the concerns one could have about district judges having the authority?

They hardly ever did it, I take it, since the Reagan administration suggested this change in the law, until the reauthorization of the Patriot Act.

But having the authority at some point, if that interim U.S. attorney wasn't doing the job, in the district judge's mind or in the chief judge's mind, having the authority to substitute somebody else whom the attorney general could get rid of the next day by a new appointment as interim U.S. attorney.

In that context, don't you think the best way to do this is straightforwardly and openly and have this discussion on policy?

TERWILLIGER: Well, I might agree -- well, let me say, first of all, I've probably been around Washington too long, because I'm starting to enjoy this discussion.

But, secondly, I would not even begin to consider how mystery provisions wind up in bills and what that means to...

BERMAN: You don't think this was the first time that ever happened?

TERWILLIGER: ... of our political process.

But I can agree with everything you said in terms of it being directed towards an open and robust debate about this, because I think, as a citizen, that's how we get the best result, is with an open and robust debate.

I do not think, however, it is necessary to revert to the prior system in order to have that debate. We can have the debate with the current system in place.

BERMAN: The current system allows an administration to propose, as Mr. Johnson pointed out, without end, an interim U.S. attorney, never submit a name for confirmation, never submit that person for confirmation, and allow him to spend, in this case of this administration, two years.

I don't know what their intentions are, but the current situation allows that.

We'd like to have a discussion about this without that authority being vested that we had no idea was being proposed to be vested in a president.

TERWILLIGER: I would presume their intentions are honorable, until I see the contrary.

And I would simply say that as was borne out before in the questioning, there is no question that if the president really wanted to do that and you and the chairman's bill were enacted, he could still do that by removing the district judge's interim appointment and starting over again.

SANCHEZ: The time of the gentleman has expired.

I want to thank everybody for their participation, as I said, and their time this evening.

Without objection, members will have five legislative days to submit any additional written questions, which we will forward to the witnesses and ask that you answer as promptly as you can, to be made part of the record.

Without objection, the record will remain open for five legislative days for the submission of any other additional material.

I also just want to get on the record, number one, that we will be requesting additional information from the DOJ and hope that they will comply with our request in a forthright and expedient manner.

And I also want to warn members of the subcommittee that we will have further discussions on H.R. 580, the Berman bill, down the line in the future.

CANNON: Will the gentlelady yield?

SANCHEZ: I will yield.

CANNON: I would just like to congratulate the gentlelady on her first hearing. It was well run and with difficult people.

You managed it remarkably well and I look forward to working with the gentlelady in the future hearings and markups.

SANCHEZ: I thank the ranking member.

I thank everybody for their time and their patience.

The hearing on the Subcommittee on Commercial and Administrative Law is adjourned.

END

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