U.S. SENATE JUDICIARY COMMITTEE HOLDS A HEARING ON DISMISSAL OF U.S. ATTORNEYS
MARCH 6, 2007
SEN. PATRICK J. LEAHY, D-VT. CHAIRMAN
SEN. EDWARD M. KENNEDY, D-MASS.
SEN. JOSEPH R. BIDEN JR., D-DEL.
SEN. HERB KOHL, D-WIS.
SEN. DIANNE FEINSTEIN, D-CALIF.
SEN. RUSS FEINGOLD, D-WIS.
SEN. CHARLES E. SCHUMER, D-N.Y.
SEN. RICHARD J. DURBIN, D-ILL.
SEN. SHELDON WHITEHOUSE, D-R.I.
SEN. BENJAMIN L. CARDIN, D-MD.
SEN. ARLEN SPECTER, R-PA. RANKING MEMBER
SEN. ORRIN G. HATCH, R-UTAH
SEN. CHARLES E. GRASSLEY, R-IOWA
SEN. JON KYL, R-ARIZ.
SEN. JEFF SESSIONS, R-ALA.
SEN. LINDSEY GRAHAM, R-S.C.
SEN. JOHN CORNYN, R-TEXAS
SEN. SAM BROWNBACK, R-KAN.
SEN. TOM COBURN, R-OKLA.
FORMER U.S. ATTORNEY
FORMER U.S. ATTORNEY
FORMER U.S. ATTORNEY
FORMER U.S. ATTORNEY
< SCHUMER >: This hearing will come to order. The procedure we'll use today, because we do have limited time, is I'll give an opening statement; Senator Specter; Senator Feinstein, because of her active role here; and one other, if someone's here from the minority side. We will then have one opening statement.
Carol Lam is representing the four U.S. attorneys in the opening statement. And then we will have 10-minute rounds, and we will try to get two rounds in.
And I want to thank all of you for attending.
Four weeks ago this committee had its first hearing to investigate the unprecedented firing of more than half a dozen presidentially appointed United States attorneys. At that time, I said I was deeply concerned about the politicization of the Justice Department and about allegations that our top prosecutors were victims of a political purge.
Since our last hearing, my concerns have only grown. Public confidence has only diminished. And the plot has only thickened. Almost every day it seems there is another twist, turn or revelation that calls into question the Justice Department's abrupt and unprecedented firing of at least eight of our country's top federal prosecutors.
Federal prosecutors are supposed to be heroic soldiers in the fight against crime and corruption, not hapless casualties of political warfare. Federal prosecutors are supposed to be bedrock, neutral servants of the law, not temporary tools in the service of some political end. And yet it seems all too likely that some in the administration were seeking to turn U.S. attorneys into political operatives.
What are we to think when there is virtually no documentary evidence of any performance problem on the part of the fired U.S. attorneys? What are we to think when there are allegations of retaliation based on cold political calculations leveled by federal prosecutors of unimpeachable integrity? What are we to think when prosecutors appear to have been fired for no reason, or worse, as part of a political vendetta?
Our work, it seems, is far from over and may only be just beginning. Let me take a minute to recap what has transpired over the past month.
The deputy attorney general admitted in a stunning revelation that one U.S. attorney, who is here today -- Bud Cummins -- had not been fired for any performance-related reason, but only to provide an opportunity to an inexperienced former aide to Karl Rove.
Second, a week after our hearing, we received a closed door briefing from the Department of Justice. That briefing was supposed to put our minds at ease, but instead left many of us scratching our heads. The argument that all of the remaining U.S. attorneys were fired for performance-related reasons simply does not add up when you read the EAR (ph) statements.
Then, a week after that briefing, we actually received the actual performance evaluations of the six fired U.S. attorneys. Those evaluations showed unequivocally that every single prosecutor received an excellent evaluation. That left us shaking our heads.
Indeed, just last week one fired U.S. attorney, David Iglesias from New Mexico, who is here today, was described by former deputy attorney general Jim Comey not as an underperformer, but as rather, quote, "one of the best we had," unquote.
Yesterday Michael Battle, head of the executive office of the United States attorneys and the official who personally called to fire a half dozen U.S. attorneys last December 7th, announced his own resignation.
Was he fired? Did he resign in protest? We don't know yet.
And today the McClatchy newspapers report that at least one of the fired U.S. attorneys believes that he was threatened with retaliation by a top Justice Department official if he complained publicly or came to testify before Congress.
Also today, the New York Times reports that another U.S. attorney who has not been mentioned in our process before -- another U.S. attorney in Baltimore -- may have been fired for political reasons in 2004.
Most disturbing, of course, are the shocking allegations that Mr. Iglesias, far from being fired for performance reasons, was dismissed because he didn't play ball after two members of Congress allegedly tried to pressure him into rushing indictments against a local democrat just days before the election.
We don't have answers to any of these questions -- yet. But this hearing is intended to get us there. And we will not rest until we get the answers we seek and the American people get the explanations they deserve.
Here are the questions that we are concerned with, among others. Was any U.S. attorney removed because he or she was bringing too much heat on Republican elected officials, as in the case of Carol Lam?
Was any U.S. attorney removed because he or she was not bringing enough heat on Democrat elected officials, as in the case of David Iglesias?
Who in the administration was responsible for this ill-advised purge? Was the purge orchestrated solely by the Department of Justice or was the White House involved?
In our efforts to get answers to these questions, we have now heard twice from the Department of Justice. Today we begin to hear the other side of the story. We have four extraordinary witnesses here -- four of the fired U.S. attorneys.
On behalf of the entire committee, I want to thank the witnesses for coming here today. I know it is neither easy nor pleasant. I know that most of you would not wish that these circumstances had not occurred.
As all four of you know, the issuance of subpoenas is on the Senate Judiciary Committee agenda for this Thursday, so refusing to come here this morning would have been just delaying the inevitable.
We will get, I trust, important information today, and I expect today's testimony will generate more questions for the Department of Justice, which we will pursue. If so, we will not hesitate to call as many department officials before us as is necessary to get to the bottom of this.
There is one thing, however, we should do right now without waiting for any more testimony. We should pass the bill that Senator Feinstein and Senator Specter have authored, which I have co- sponsored, to provide a check and a balance on the attorney general's power to name interim U.S. attorneys.
Twice now, that common sense reform has been blocked. I can't understand that, especially since no senator will even admit to knowing that the change was made in the first place. So we'll keep fighting to get this legislation passed.
Meanwhile, we will be vigilant in asking questions and conducting oversight. That's part of our job. I look forward to all the testimony and call on my colleague, Senator Specter, who has been fully cooperative in us having these hearings.
SPECTER: Thank you, Mr. Chairman. I agree with you totally that if the allegations are correct, that there has been serious misconduct in what has occurred with the termination of these United States attorneys. I think it is very important to withhold judgment on the allegations until we have worked through this very complex Senate hearing.
I have firsthand experience with what a prosecuting attorney does, having been the district attorney to Philadelphia, and before that an assistant district attorney, so I have been on that firing line for some 12 years. And the prosecuting attorney accurately is said to have the keys to the jail.
And the prosecuting attorney has a quasi-judicial function, part judge to decide whether cases ought to be brought, and once having made that decision, to be an advocate, so that people in the position of United States attorneys have to be allowed to do their job in an unfettered way.
Now, as you accurately said, Mr. Chairman, two members of Congress allegedly tried to pressure Mr. English (sic), and I think we need to hear from Mr. English (sic) and we need to find out what is that other side of the conversation.
Both of those members of Congress have issued statements denying that there was pressure, so let's keep it in perspective, as you say, of an allegation, and let's find out what was said. And if there is a conflict in testimony, that's a matter for this committee to determine.
When you have the allegation of a threat by a Department of Justice official against some individual if that individual testified, that may well be obstruction of justice. You can't threaten someone and stop them from testifying in a duly convened procedure. That's obstruction of justice. Now that's a crime, and obviously, a matter of a normal seriousness.
When the reference is made to the New York Times story this morning by Senator < Schumer > about the Baltimore prosecutor, that's another matter which we have to inquire into. And what frequently happens in matters like this, once something surfaces, other people may come forward, having the matter before the public, analogous circumstances.
But the story which appears in the New York Times today is a complicated story. It is a story which may show inappropriate political pressure for the Baltimore attorneys pursuing an investigation relating to gaming, which implicated subordinates of the governor, or it may be explained by what the story refers to as his pressure tactics and performance rating, so that there are a lot of nuances. And that's only a newspaper story and just the beginning of what we have to inquire into.
I think it is important to note at the outset that the president does have the authority to replace the United States attorneys. May the record show that some of the replaced United States attorneys are not in agreement with that.
SPECTER: That's something the record will show. Questioners -- perhaps even prosecutors -- use that technique from time to time to move ahead on what is occurring.
But the authority of the president to replace United States attorneys does not mean that you can replace a United States attorney if the United States attorney is moving into sensitive ground or if the United States attorney is being replaced because of being too close to political leaders who are political leaders who are asking for the U.S. attorney. That's an improper matter.
With respect to Ms. Lam, the suggestion was made that there may have been a termination because of her successful prosecution of former Congressman Duke Cunningham, and it may go to other matters which she was bringing.
This may implicate the question of pending investigations, and that may be something which this committee will have to take up not in the public session. But we have authority to look into pending investigations, especially when there are collateral matters involved, such as the one here.
So we have a weighty responsibility so that we do not tamper with the established right of the president to replace U.S. attorneys, but deal with the question of whether they're being replaced because they were doing a job which is politically sensitive, or going after corruption or being replaced for some improper motive.
One concluding comment, and that is, it would be helpful if the Department of Justice would be a little more sensitive about what they are doing. To replace seven United States attorneys all at once is not exactly a discreet thing to do.
And to replace U.S. attorneys without having a record in detail for the reasons which could be responded to on what is an obvious Judiciary Committee of inquiry is something that the Department of Justice ought to take into account in terms of their future conduct.
Mr. Chairman, we are starting on a pretty long road, and we are dealing with many individuals -- two members of Congress and a former governor and many other individuals who have been implicated in the public press, whose reputations are on the line -- and I know that we share a joint determination to find out exactly what happened as best we can.
And we're a very busy committee and this may take a lot of time and a lot of hearings, but if we're going to find out if there was wrongdoing, and if we're going to clear people who have been publicly identified with alleged wrongdoing one way or another, we've got a big job to do in addition to all the other responsibilities we have in this committee and in the Congress. Thank you.
I learned on January 6th that several United States attorneys had been told to resign by a date certain in mid-January and without cause. I was told that this was highly unusual and had never happened before and that I should look into it.
While early rumors were circulating, I began to ask questions and express concern. However, as I did this, the administration pushed back hard.
FEINSTEIN: Almost immediately I received an angry call from the attorney general, who expressed his strong displeasure with what I was saying and told me I clearly had my facts wrong.
On January 18th, the attorney general came before this committee and vigorously denied that the firings were politically motivated. He stated, and I quote, "I would never ever make a change in the United States attorney position for political reasons," end quote. Yet almost immediately the department had to start backtracking.
Soon it became evident that Mr. Cummins from Arkansas here today was asked to resign for no other reason than to put in place a politically connected young lawyer, Tim Griffin. However, at that point the justice department maintained that Bud Cummins was the only victim of politics.
On February 6th, Deputy Attorney General Paul McNulty stressed that this was an isolated case by saying before the Judiciary Committee, quote, "When I hear you talk about the politicizing of the Department of Justice, it's like a knife in my heart," end quote. He went on to say that the others were asked to resign for, quote, "performance reasons," end quote.
However, here we are a month later and again the department is changing its tune. Now DOJ has begun to argue that these United States attorneys did not follow department priorities and therefore main justice had concerns about their policy decisions.
This Saturday in The Washington Post the Department of Justice stated that, quote, "The ousters were based primarily on the administration's unhappiness with the prosecutors' policy decisions," end quote.
However, every witness sitting before this committee today was judged by a team of independent evaluators to have a strategic plan and appropriate priorities to meet the needs of the department and their districts. Once again, the Department of Justice's answers don't hold up.
The department has used the fact that I wrote a letter on June 15th to the attorney general concerning the San Diego region, and in that I asked some questions. What are the guidelines for the U.S. attorney Southern District of California? How do these guidelines differ from other border sections nationwide?
I asked about immigration cases. Here is the response I got under cover of August 23rd in a letter signed by Bill Moschella, and I'd ask that both these letters be added to the record, if I might.
FEINSTEIN: Thank you.
That office, referring to Mrs. Lam's office, is presently committing fully half of its existing U.S. attorneys to prosecute criminal immigration cases. Prosecutions for alien smuggling in the Southern District under USC Section 1324 are rising sharply in fiscal year 2006.
As of March 2006, the halfway point in the fiscal year, there were 342 alien smuggling cases filed in that jurisdiction. This compares favorably with the 484 alien smuggling prosecutions brought there during the entirety of fiscal year 2005.
The letter goes on to essentially say that Mrs. Lam is cooperating and that they have reviewed it. The department is satisfied.
Surprisingly, the administration also claimed on Saturday that a few days before the firings, administration officials began the traditional process of calling lawmakers in the affected states to inform them about the decisions and to gather early input on possible successors.
Two of those U.S. attorneys who are in my state -- this, too, is not accurate. I do not know who the administration called, but it wasn't me. And I checked, and it wasn't any of the other home state Democratic senators.
Every week since I first raised the issue, more information has continued to come out. And amazingly, each revelation is more shocking than the one before. I think this hearing is extremely important. I think we need to get to the bottom of what precipitated the calls in December.
And I think that we need to ensure that this kind of politicization of U.S. attorneys office does not happen ever again. For over 150 years, the process of appointing interim U.S. attorneys has worked well with virtually no problems.
Now, just one year after receiving unchecked authority in a little-known section added to the Patriot Act last spring, the administration has significantly abused its discretion. If there ever was any question why our system of government relies on checks and balances, I think that question has been answered.
The Judiciary Committee has reported out a bill with bipartisan support that would allow the attorney general to appoint interim U.S. attorneys. However, it would limit that time to 120 days. That's to create an incentive to go to the Senate for confirmation.
Then if that appointment hadn't been made, the appointing power would resort to a district court judge who would have the power to replace an interim U.S. attorney. This is exactly the way the law was before it was changed in the Patriot Act.
I would like to point out that there are currently 13 vacancies pending. There are only three nominees. Why is the administration leaving these positions in that manner?
By returning the law to what it was prior to reauthorization of the Patriot Act, the balance of power is returned and an important incentive is created to ensure the administration will work with the Senate to get the best candidate confirmed.
That bill is on the floor right now. That bill can be passed by the United States Senate tomorrow or the next day. That bill was heard in this committee. That bill was reported out by a majority of this committee. I really urge that we pass this bill and take that first step to assuring that this can never happen again. I thank you.
And Senator Kyl wishes to make a brief statement.
KYL: Thank you, Mr. Chairman. Just one brief comment about the legislation Senator Feinstein just mentioned.
I have one objection to that bill and would like the opportunity to offer an amendment to it. And if I have that opportunity to offer an amendment, whether it's passed or not, I would have no objection to the bill proceeding.
The amendment is simply to remove the federal district courts from the nomination process.
I would be curious about the views of the panel, all of whom are distinguished lawyers with a lot of experience, as to whether it is a good idea for federal district judges to be appointing U.S. attorneys or whether it's preferable to have those appointments from the executive branch.
Whether 120 days is the right period of time or not, it seems to me we have to require that the president or the executive branch do the nominating, and then the Senate do the confirming, and to take this out of the realm of the courts.
I appreciate the fact that that's the way it was done for about a hundred years in our history, but it hasn't been a particularly good experience. And in any event, it's an opportunity for us to correct it now. So it seems to me that at least we ought to have an opportunity to offer an amendment to that effect.
Secondly, there's been a suggestion here that somehow or other the removal of U.S. attorneys was done for the purpose of replacing. Except in one situation -- the situation with Mr. Cummins -- the administration has denied that that's the case, and it seems to me that since the administration has not come forward with nominations to replace the individuals who were removed, it suggests that that was not the reason for the removal.
And therefore this effort to change the statute in order to prevent an abuse is to prevent an abuse that did not occur. So there's a disconnect between the remedy here, which is to change the statute, and the allegation that somehow this was done for political purposes to replace one person with another. As I said, except for the case in Alabama, that's simply not true.
FEINSTEIN: Why are we asking this question?
KYL: Arkansas? I'm sorry. I mentioned Alabama. I meant to say Arkansas.
And now we'll proceed to introduce and hear from our witnesses.
Carol C. Lam served as U.S. attorney for the Southern District of California from November 2002 until this year. She is a graduate of Yale University and Stanford Law School and served as a law clerk to Judge Irving L. Kaufman on the Second Circuit Court of Appeals.
After clerking, she returned to the West Coast to become an assistant U.S. attorney in San Diego, where she was the recipient of many Department of Justice special achievement awards. She was named superior court judge in 2000 and is currently the senior vice president and legal counsel for Qualcomm, Inc.
David C. Iglesias served as U.S. attorney for the District of New Mexico from 2001 until recently and has had a distinguished career as a United States Navy reserve officer and captain in the Judge Advocate General's Corps.
He earned his B.A. at Wheaton College in Illinois and his J.D. at the University of New Mexico School of Law. While serving as a lieutenant in the Navy, he was criminal defense counsel in the court martial that served as the basis for the play and film, "A Few Good Men." Mr. Iglesias was, of course, the inspiration for the Tom Cruise character in that movie.
John McKay was named U.S. attorney for the Western District of Washington State in 2001 and served there until recently. He's a graduate of the University of Washington and began his professional career right here on Capitol Hill as a legislative assistant to Congressman Joel Pritchard of Washington State.
After earning his J.D. at Creighton University School of Law, he returned to Seattle to work in private practice, eventually as chief litigation partner at the firm of Cairncross & Hempelman.
Mr. McKay was a White House Fellow, working as special assistant to the director of the FBI in 1989, and later continued his work as a distinguished public servant by serving as president of the Legal Services Corporation. He's currently visiting professor of law at Seattle University School of Law.
H.E. "Bud" Cummins III served as U.S. attorney for the Eastern District of Arkansas from 2001 until 2006 in December. He earned his undergraduate degree from the University of Arkansas in 1981 and his J.D. from the University of Arkansas Law School.
Mr. Cummins clerked for the United States Magistrate Judge John Foster, Jr., and also for Chief U.S. District Judge in the Eastern District of Arkansas, Judge Stephen M. Reasoner. He then entered private practice in Little Rock before serving as chief legal counselor to Governor Mike Huckabee. Currently, Mr. Cummins is a consultant to a biofuel company.
And now we will administer the oath. Will all witnesses please stand to be sworn? Raise your right hand. Do you affirm that the testimony you are about to give before the committee will be the truth, the whole truth and nothing but the truth, so help you God?
WITNESSES: I do.
Ms. Lam, you may proceed.
LAM: Thank you. Good morning, Mr. Chairman and members of the committee.
My name is Carol Lam, and until recently I was 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 the great privilege of serving as a colleague, from the following districts: Bud Cummins, Eastern District of Arkansas; David Iglesias, District of New Mexico; and John McKay, Western District of Washington.
Each of us was subpoenaed to testify this afternoon on the same subject matter before a subcommittee of the House Committee on the Judiciary, and we were informed that in short order we would be receiving subpoenas to testify before this committee. And so we are making our appearances before both committees today.
We respect the oversight responsibilities of the Senate Committee on the Judiciary over the Department of Justice, as well as the important role this committee plays in the confirmation process of United States attorneys.
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 offices 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 case loads 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 throughout the country.
As United States attorneys, our job was to provide leadership in 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 the importance of supporting and defending the Constitution in a fair and impartial manner that is devoid of politics.
Prosecutorial discretion is an important part of the United States attorneys' responsibilities. The prosecution of individual cases must be based on justice, fairness and compassion, not political ideology or partisan politics. We believed that the public we served and protected deserved nothing less.
Toward that end we also believed that within the many prosecutorial priorities established by the Department of Justice, we had the obligation to pursue those priorities by deploying our office resources in the manner that best and most efficiently addressed 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 us had many years of experience as assistant United States 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 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 a Department of Justice official 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 requests for our resignations.
This hearing is not a forum to engage in speculations, and we decline to speculate about the 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 I have 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 today regret the circumstances that have brought us here to testify. We hope those circumstances do not in any way call into question the good work of the United States attorneys 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.
We welcome the questions of the chair and the members of the committee. Thank you.
< SCHUMER >: Thank you, Ms. Lam. And I know the statement is on behalf of your three colleagues. Before we get to questions, our chairman, who has been extremely supportive of what this committee is doing with these hearings, will make an opening statement.
There have been very few things I have heard over the past that has concerned me as much as these sudden firings. I felt very privileged to have been a state prosecutor, not a federal prosecutor, and many prosecutors serve on this committee -- Senator Specter and others. And I remember when Senator Feinstein first came to me and talked about it, at first I thought there had to be some mistake.
LEAHY: But these actions we've heard are from the administration. I really believe they threaten to undermine the effectiveness and professionalism of U.S. attorneys' offices around the country.
Not since the Saturday night massacre, when I was a young lawyer and President Nixon forced the firing of the Watergate prosecutor Archibald Cox, have we witnessed anything of this magnitude.
The calls to a number of U.S. attorneys across the country last December by which they were forced to resign were extraordinary. I don't know of any precedent for it.
What is more disconcerting is that, unlike during Watergate, there is no Elliot Richardson or William Ruckelshaus seeking to defend the independence of the prosecutors. And any of us who have ever been a prosecutor know the independence is the most important thing you have.
But instead in this case the attorney general, the deputy attorney, the executive office of the U.S. attorneys and the White House all collaborated in these actions. I think that's wrong.
U.S. attorneys around the country are the chief federal law enforcement officers in their states, and as a face of federal law enforcement, they have enormous responsibility for implementing any terrorism efforts, bringing important and often difficult cases, and taking the lead to fight public corruption.
It is vital that those holding these positions be free from any inappropriate influence. The importance is reflected in the fact that these appointments are traditionally and currently subject to Senate confirmation. The United States Senate has to actually vote on the confirmation just to determine these are going to be independent positions.
The point of that independence, of course, is your ability to use your own discretion not only in the cases you bring, but one of the most important things a prosecutor can do is the discretion when you either don't bring a case or when you use your resources for what you feel is the most important.
There has been a series of shifting explanations and excuses from the administration, and the lack of accountability or acknowledgment of the seriousness of the matter makes it all the worse.
The attorney general's initial response at our January 18th hearing when we asked about these matters was to brush aside any suggestion that politics and interference with ongoing corruption investigations were factors in the mass firings.
Well, now we know that wasn't so. We know that these factors did play a role in these matters. And the question now arises: Where is the accountability? For six years accountability has been lacking in this administration. Loyalty to the president is rewarded over all else.
I think the lack of checks and balances has to end. We don't need a commendation for a heck of a job done by somebody. I was pleased when Defense Secretary Gates went out to Water Reed and said, "This is wrong." He took responsibility and started moving things. I told him publicly it was refreshing to see somebody actually acknowledge what happens.
But there's no accountability for this action by the justice department, and that's why we have to have these hearings. You can't just create vacancies on time line where you're then going to put in people -- in one case we found out was a political acolyte of a major White House person. He did not necessarily have the qualifications, but he was put in there for his political qualifications. And the interesting thing is every one of the people asked to resign were nominated by this president and confirmed by the Senate.
Now, we can fix this thing in the Patriot Act. We've reported a bill to the Senate to reverse that mistake. Senator Feinstein, Senator Specter, Senator < Schumer > and I have all co-sponsored it. It's being blocked in the Senate by Republican objections. I hope that after these hearings it will move forward and we will not see this kind of a scandal will happen again.
Mr. Chairman, I will submit questions, but I think that the questions you and others are going to ask are pretty well going to reflect what I would ask. Thank you.
OK. My first series of questions are directed to Mr. Iglesias.
First, I want to thank you for agreeing to testify here today, Mr. Iglesias. I know this is not easy or pleasant for you.
You caused quite a stir by your public allegations last week about potentially inappropriate contacts you had with two members of Congress last October. You've been quoted as saying that the calls made you feel "pressured to hurry the subsequent cases and prosecutions" in a public corruption case involving local Democratic officials in New Mexico.
Some of the questions that I have to ask may be awkward and difficult for you to answer. Some are certainly awkward and difficult for me to ask, as they involve a colleague in the Senate. But I think everyone would agree that all the facts have to come out, and we would not be doing our job if we did not try to make an accurate record of what happened.
These hearings were initiated long before we knew any colleagues might be involved, and when we initiated the hearings, I promised that we would take this investigation to its logical conclusion, which is our duty as legislators. At all times we will be fair and responsible, but we must get to the bottom of this issue.
So, Mr. Iglesias, you have said publicly that you received two calls from members of Congress in October of 2006 about pending public corruption investigations. Who made those calls?
IGLESIAS: Mr. Chairman, Mr. Ranking Member, honorable members of the Senate, thank you for the opportunity to set the record straight. And, Senator < Schumer >, thank you for pronouncing my name correctly the first time.
The first call was made on or about October 16th. I was here in Washington, D.C., on DOJ business. We were here for several days on subcommittee work and I'd just returned to my hotel and I received a call from Heather Wilson, United States Representative from New Mexico District 1. The call was quite brief.
Now, Senator, shall I go into the contents or shall I just give you the name of the individual who called?
IGLESIAS: The second call was approximately two weeks later when I received a call at home from Senator Pete Domenici.
IGLESIAS: It was approximately the 26th or 27th of October.
IGLESIAS: Initially, his chief of staff, Steve Bell, called and indicated that the senator wanted to speak with me.
IGLESIAS: Very brief. One to two minutes at the tops.
IGLESIAS: Yes, sir.
IGLESIAS: Thank you, sir. I was at home. This was the only time I'd ever received a call from any member of Congress while at home during my tenure as United States attorney for New Mexico.
Mr. Bell called me. I was in my bedroom. My wife was nearby. And he indicated that the senator wanted to speak with me. He indicated that there were some complaints by some citizens, so I said, "OK." And he said, "Here's the senator."
So he handed the phone over, and I recognized the voice as being Senator Pete Domenici. And he wanted to ask me about the matters of the corruption cases that had been widely reported in the local media. I said, "All right." And he said, "Are these going to be filed before November?" And I said I didn't think so, to which he replied, "I'm very sorry to hear that." And then the line went dead.
IGLESIAS: That's how I took that. Yes, sir.
IGLESIAS: No, sir.
IGLESIAS: I felt sick afterwards, so I felt he was upset at hearing the answer that he received.
IGLESIAS: Yes, sir, I did. I felt leaned on. I felt pressured to get these matters moving.
IGLESIAS: Unprecedented. It had never happened.
IGLESIAS: Approximately five or six weeks later perhaps.
IGLESIAS: The call from Congresswoman Wilson was approximately two weeks prior to the call from Senator Domenici.
IGLESIAS: It was on or about the 16th of October.
IGLESIAS: That was also a very brief conversation. Well, I mentioned that I was just coming into Washington, D.C., and she joked, "Well, I'm sorry to hear that."
She then asked me about she'd been hearing about sealed indictments, and she said, "What can you tell me about sealed indictments?" The second she said any question about sealed indictments, red flags went up in my head, because as you know, we cannot talk about indictments until they're made public.
In general, we specifically cannot talk about a sealed indictment. It's like calling up a scientist at Sandia Laboratory and asking them, "Let's talk about those secret codes, those launch codes."
So I was evasive and nonresponsive to her questions. I said, "Well, we sometimes do sealed indictments for national security cases. Sometimes we have to do them for juvenile cases." And she was not happy with that answer, and then she said, "Well, I guess I'll have to take your word for it." And I said -- I don't think I responded -- "Goodbye." And that was the substance of that conversation.
IGLESIAS: Yes, sir, I did.
IGLESIAS: Not as sick, because I didn't think there'd be any more communications.
Our committee's interest in these matters are serious and, of course, any attempt to intimidate a witness into not testifying or not being cooperative would be very troubling. Let me ask this question.
I'm going to ask this question of all of you, but I'm going to start with Mr. McKay.
After your dismissal did any of you -- first, Mr. McKay -- receive any communication from any official at the Department of Justice that you believe was designed to discourage you from testifying or making public comments?
MCKAY: Senator, a conversation was related to me by one of the panel members, Mr. Cummins, who I believe wants to address that first, if you would like to do that. And I'm prepared to comment on how I received that information.
CUMMINS: "Wants to" might be a strong description of my -- I'm willing to tell you truthfully about a phone call I received.
About, I believe, on February 20th, I received a phone call from Mike Ellston, who I believe is the chief of staff to the deputy attorney general. I had had some previous conversations with Mr. Ellston.
In fact, it was Mr. Ellston that I contacted after the attorney general testified in this committee to express to him some concerns I had about the way I was being treated in light of the attorney general's comment. And so I'd have to think -- over the course of this, Mike Ellston and I have talked three or four times.
That day was a Tuesday, as I recall, and there had been a Sunday Washington Post article in which I was quoted as saying something to the effect that the department can replace us for any reason or no reason and also saying that if -- if -- they were somehow being deceptive about the reasons about my colleagues, because they didn't want to talk about the true agenda behind these other dismissals, that I thought that was unfair and that that should be corrected.
And I'm paraphrasing. I don't have my exact quote. That was in a Dan Eggen story in the Washington Post, I believe, on February 18th.
Apparently, that struck a nerve that I had given that quote, and partly, probably, because they felt like they had done me right when the deputy attorney general had testified -- and to that extent they certainly had -- and he honestly said what my situation was and cut me out of this other category, and so maybe they felt like they'd been somehow betrayed by me because I should still be in the fold.
And so I discussed that with Mike and told him that number one, the paragraph right before my quote said that many prosecutors were enraged. And I said, that's not mine. I didn't use the words "enraged." That's the writer's words. Maybe some of the other colleagues were enraged, but that wasn't the context I made that statement.
I told him additionally -- I pointed out to him that none of the U.S. attorneys had taken any action to stir up any controversy after we'd been dismissed, and it was only once Congress started calling the Department of Justice to task and they endeavored to defend their actions that any of us said anything, because we weren't comfortable with what was being said.
And then finally, I pointed out to him that all of us at that point had already received a number of phone calls from your staff -- and I'm not sure about the House at that point -- but we had had many invitations already to come here and do this and testify, which we had all declined.
So I was trying to remind him that we weren't driving this train -- that it was really an issue between the administration and Congress, and we were just witnesses.
And this was all very congenial. This was not a very tense phone call. But then at one point, he did say that there was a feeling in the department that they had been too restrained in their defense of their actions, mainly concerning my colleagues, and this was after they had had the behind door session with the Senate to show whatever materials they showed, and he indicated that there was a viewpoint held among some people in management of the department that if the controversy would continue to be stirred up, that more damaging information might be brought out.
And I'm not attempting to quote him here, but the inference was clear that -- and again, I think it mainly applied to my colleagues, not to me, because I had been separated.
And so I'm not trying to characterize that as a threat. It was a fairly congenial phone call. It might have been a threat. It might have been a warning. It might have been an observation, a prediction -- you can characterize it. I'm going to leave that to you.
But I thought about it for a while and I felt like it had been a confidential conversation. I didn't feel completely comfortable sharing it with anybody, but on the other hand, I was very concerned about my colleagues, the people that are sitting here and others that I didn't feel like were being treated fairly.
And of course, I'd been in their shoes just a few weeks before. And so I felt like I would not be comfortable having one of them give an interview the next day and then have the world fall on top of them without knowing that that message had been delivered. And I almost felt like it had been delivered for a purpose for me to share it. So I did in fact try to convey that to Ms. Lam, Mr. Iglesias, Mr. McKay, Mr. Bogden and Mr. Charleton.
CUMMINS: I actually sent them an e-mail.
CUMMINS: Yes, sir.
MCKAY: Senator, thank you. Mr. Cummins delineated his information down to some fairly direct comments to us. I took those comments to be the following.
Number one, public comments by former United States attorneys were intentionally frowned upon by the Department of Justice and we could expect repercussions if we continued to speak publicly. Number two...
MCKAY: That is correct. February 20th was, I believe, the date of the phone call from Mr. Ellston.
Number two, he made it clear -- at least to Mr. Cummins, who passed it on to us -- that any work with the Congress or testimony before the Congress would be seen as escalation by the Department of Justice and that they would respond accordingly.
I heard both of those messages from Mr. Cummins, and Mr. Cummins related to us fairly, and I think with courage, that he considered Mr. Ellston's call to be intentionally delivered to us, not just to him. And so therefore, Senator, I felt that that was a threat.
I felt it was hugely inappropriate coming from a Department of Justice official, particularly with regard to potential congressional testimony. I do think it was inappropriate, and I want to say, while it was a threat, I' not intimidated, and I don't think my colleagues are either.
Relate to us your feelings after receiving the e-mail from Bud Cummins, Mr. Iglesias.
IGLESIAS: I felt like it was a warning shot across the bow. The message that I took is, "You'd better tone it down, stop talking, or there'd be other embarrassing things revealed about your record." It didn't intimidate me. It made me angry. Hence, my presence here.
And Ms. Lam?
LAM: I don't think I have a lot to add to that. I did receive the message. I think trying to sort out or describe my feelings at any point time is a little bit difficult at this point, but I think I did have some concerns because neither before, during, nor after the call of December 7th have I ever been provided directly by the department with the reason I received the call.
And therefore, it was never known to me whether they were holding some information that they were going to release subsequently that I was not aware of and therefore some attack that I could not predict. And so that having not ever been told the reason -- I think that did cause me some concern.
Now, Mr. Cummins or Mr. McKay, but Mr. Cummins, would you please submit that e-mail to the committee? You don't have it right here, do you?
CUMMINS: Yes, Senator, I have it.
Just one final question from me. I want to ask each of these witnesses -- and just please answer this one yes or no, because my time has expired. I want to ask each of you, based on everything you know sitting here today, do you believe that you were fired for any failure of performance as alleged by the justice department?
Ms. Lam? Just answer that yes or no.
LAM: I honestly don't know, but I don't think so, Senator.
IGLESIAS: No, sir.
MCKAY: No, Senator.
My time has expired. I've gone a little over.
SPECTER: Mr. Chairman, for purposes of my round I think it important to note that you were six minutes 58 seconds over. And I don't say that in any sense to say you shouldn't be -- just to say I would look for the same latitude.
SPECTER: May I see the e-mail before my round begins, Mr. Cummins?
Mr. Chairman, may I ask that the clock stop?
< SCHUMER >: Yes, would the clerk get the e-mail and then copy it and distribute it to each person? While we're waiting, since we do have limited time -- they have another appointment -- do you want to wait until we get it copied?
SPECTER: Yes, I need to see the e-mail so that I know what the basis of the communication was.
FEINSTEIN: Thank you.
If I may, I'd like to begin with Mr. McKay.
Mr. McKay, did any member of Congress or their staff contact you regarding decisions your office was making whether to conduct an investigation?
FEINSTEIN: Were you ever contacted by a member of Congress or their staff about the status of the Washington gubernatorial election?
MCKAY: Yes, Senator.
FEINSTEIN: Who and what was the outcome of those contacts?
MCKAY: Senator, at some weeks following the 2004 governor's election in the state of Washington, I received a phone call from the chief of staff to Representative Doc Hastings of Richland, Washington. The governor's election at that time had been certified in favor of the Democratic candidate on a third recount by something around 200 votes out of millions cast.
MCKAY: I was told the purpose of the call was to inquire on behalf of the congressman regarding the status of any federal investigation into the election.
I advised Representative Hasting's chief of staff of the publicly available information, and that was that the Seattle field office of the Federal Bureau of Investigation and my then office, the United States Attorneys' Office for the Western District of Washington, was requesting anyone with information about voter fraud to immediately contact the Bureau.
When the chief of staff began to press me on any future action by the United States on the election, I stopped him --
FEINSTEIN: Excuse me. Who was the chief of staff that called?
MCKAY: The chief of staff's name is Ed Cassidy. I understand he no longer is the chief of staff.
FEINSTEIN: Thank you. Please continue.
MCKAY: So when Mr. Cassidy called me on future action, I stopped him and I told him that I was sure that he wasn't asking me on behalf of his boss to reveal information about an ongoing investigation or to lobby on one, because we both knew that would be improper.
He agreed that it would be improper and ended the conversation in a most expeditious fashion.
I was concerned and dismayed by the call. I immediately summoned the first assistant United States attorney and the criminal chief for my office into my office, and I briefed them on the details of the call. We all agreed that I stopped Mr. Cassidy before he entered clearly inappropriate territory, and it was not necessary to take the matter any further.
FEINSTEIN: Do you think this situation had anything to do with the reason you were asked to resign?
MCKAY: I do not know, Senator. I think that would be something that perhaps Representative Hastings or officials of the Department of Justice would say. Like Ms. Lam, I neither asked for nor received any explanation for my forced resignation, and I actually want to say that I agree completely with Senator Specter.
I did serve at the pleasure of the president. When asked to resign, I resigned quietly. I made no statement about my service. I had no intention of defending my time in office. I have no intention of doing that here either, but I did try to go quietly. I did feel that was my duty to the president of the United States and to the Senate.
And the situation changed when they began to mischaracterize the work of the people in my office. And I'm here, in part, to defend their work.
FEINSTEIN: Was there any other pressure you received to launch an investigation?
MCKAY: Not from members of Congress. It did become a very controversial issue in Seattle and throughout the state of Washington when a governor's election is that close. And I want to say that I considered that to go completely and entirely with the territory of being an independent prosecutor whose job it is to do what's right by the law, and not the political thing. And I had felt no pressure in that regard.
FEINSTEIN: Thank you, Mr. McKay.
Now I'd like to turn to Ms. Lam, if I might.
As you know, the FBI chief in San Diego, Dan Dzwilewski, stated that your continued employment, he believes, was critical to the success of a number of ongoing investigations. I understand this is an ongoing investigation, and I don't want you to reveal something confidential, but is it fair to say that even though there was a conviction in the Duke Cunningham case, there may also be other ongoing investigations that could stem from that case?
LAM: Well, Senator, as you know, two days before I left office on February 15th, the office did bring an indictment against Dusty Fogo and Brent Wilkes, as well as -- well, indictments were brought in those two cases, and at that time our office announced that the investigation was ongoing. Beyond that, Senator, I don't really feel that I can comment further.
FEINSTEIN: And has your office filed additional subpoenas -- four additional subpoenas?
LAM: Since that time I don't know, your honor. I'm sorry. I don't know, Senator, the circumstances, and --
FEINSTEIN: Could you tell us what Dusty Fogo and Brent Wilkes are being indicted for?
LAM: It was an investigation that did arise out of facts learned during the investigation of former Congressman Cunningham. One indictment had to do with Mr. Fogo's use of his position at the CIA, his receipt of goods in order to get government contracts for Mr. Wilkes. And the other indictment involved a conspiracy to bribe Congressman Cunningham.
FEINSTEIN: Now, Ms. Lam, your office has been criticized for its handling of immigration cases. Was this concern raised with you directly? And if so, what was the outcome?
LAM: Senator, the first real controversy about the office's handling of immigration cases, I think, arose approximately a year ago when Congressman Issa in San Diego began responding to complaints from the Border Patrol union -- not management, but the Border Patrol union -- regarding the office's decision -- my decision -- to reduce some of the prosecution of lower level coyotes or foot guides in the office.
I think it's important as a starting ground to note that in similarly sized U.S. attorney's offices throughout the country, one office in the Northeast prosecutes approximately 400 cases a year. Another one in the West prosecutes about 800 cases a year. Another one in the East about 1400 cases a year. The Southern District of California in any given year will prosecute between 2,400 and 3,000 cases.
There were some complaints about that, and I had discussions with the Department of Justice really about those complaints from the congressman, and I explained to the department that what our office was doing was pursuing lengthier sentences, as the justice department had asked us to do only about two years earlier to pursue cases and stick to the sentencing guidelines.
And at that time I had informed the justice department that we would likely go to trial more as a result of pursuing those lengthier sentences, but that we would act in conformance with their wishes. And in fact, between 2004 and 2005, our immigration trial rate more than doubled from 42 to 89 trials.
That took a lot of attorney resources, but I felt we were complying with the department's wishes. I thought we were getting good results, putting very bad people -- criminal recidivists -- away, the cost being more attorney time put into those cases. And in fact, I think we got good results.
The result was that we did have to cut some filings, and I had told the department that would likely be the result. Their response was, "Well, we're paid to be trial attorneys, not plea bargain attorneys." I accepted that.
And in fact, our higher end sentences on criminal recidivists have increased fourfold, while our low end sentences has decreased. I think what we have done is we have eliminated a lot of the revolving door prosecutions of lower level alien cases.
We have also increased the number of very significant investigations and prosecutions. We have convicted seven corrupt law enforcement agents along the border who were charged with enforcing the alien smuggling laws. They are very lengthy wiretap investigations. They require a lot of resources.
But these are people who waved through hundreds of aliens across the border without detection every week. We get but one criminal statistic for each of those cases.
We prosecuted the Golden State Fence Company, one of the very few criminal employer sanction cases in the country -- $5 million forfeiture, the two owners facing jail time.
And we have been able to dismantle alien smuggling organizations. In August we received a 188-month sentence on the head of an alien smuggling organization.
I don't think that anything that we have done has been inconsistent with the mandates of the department. We've been very transparent in what we have been doing, and as you noted, Senator, we thought the department was supportive of those efforts.
FEINSTEIN: Well, thank you. And I'd just like to say for the committee's benefit that you were very well respected by judges, by investigators and by others in the district.
Could I ask one other question?
FEINSTEIN: I'd like to ask the same question of each one of you, and that is: How soon after you were told that you were forced to resign, did interviews, to the best of your knowledge, begin for your replacement?
Could we start with you, Ms. Lam?
LAM: I don't think interviews began until approximately two weeks before I left office, so that would have been early February. I can't give you a precise date, but it would have been approximately almost two months after I received the phone call.
FEINSTEIN: Mr. Iglesias?
IGLESIAS: To the best of my recollection, the interviews took place -- this is for the interim position -- in early to mid February of this year.
FEINSTEIN: Mr. McKay?
MCKAY: Senator, I was told to resign on December 7th, and to my knowledge the first request for interviews in my district took place on approximately January 16th, and I recall it because it was about two days before the attorney general testified before this committee.
FEINSTEIN: Thank you.
CUMMINS: Well, in my case, Senator, the interim person was already identified at the time I was asked to leave.
FEINSTEIN: Yes, I think that is significant, because the outside person was clearly brought in. In the other four cases, there were no interim interviews begun until the cases became very publicly known. And I think that's led us to believe that it was quite probable that outside individuals who were going to be brought in to take these positions -- but my time is up.
Before we get to Senator Specter, we now all have a copy of the e-mail. First, I'd like unanimous consent that it be read into the record. And second, I think it's important, and I'd like it read here, so everyone can hear it. Mr. Cummins, would you want to read it? Or if you'd prefer, I'll read it.
CUMMINS: I'd prefer for you to read it.
< SCHUMER >: OK. I thought that might be the case. It's from H.E. Cummins sent Tuesday, February 20, 2007, 5:06 p.m. to Dan Bogden, Paul K. Charlton, David Iglesias, Carol Lam, McKay, John, Law Adjunct.
I'm just reading it exactly as it is. Subject: "On another note."
"Mike Ellston from the DAG's office called me today. The call was amiable enough, but clearly spurred by the Sunday Post article. The essence of his message was that they feel like they are taking unnecessary flak to avoid trashing each of us specifically or further.
"But if they feel like any of us intend to continue to offer quotes to the press or organize behind the scenes congressional pressure, then they would feel forced to somehow pull their gloves off and offer public criticisms to defend their actions more fully.
"I can't offer any specific quotes, but that was clearly the message. I was tempted to challenge him and say something movie-like, such as -- quote, 'Are you threatening me?', unquote. But instead I kind of shrugged it off, said I didn't sense that anyone was intending to perpetuate this.
"He mentioned my quote on Sunday, and I didn't apologize for it, told him it was true and that everyone involved should agree with the truth of my statement, and pointed out to him that I stopped short of calling them liars and merely said that if they were doing as alleged, they should retract.
"I also made it a point to tell him that all of us have turned down multiple invitations to testify. He reacted quite a bit to the idea of anyone voluntarily testifying. And it seemed clear that they would see that as a major escalation of the conflict meriting some kind of unspecified form of retaliation."
"I don't personally see this as any big deal, and it sounded like a threat of retaliation amounts to a threat that they would make their recent behind closed door Senate presentation public.
"I didn't tell him that I heard about the details in that presentation and found it to be a pretty weak threat, since everyone that heard it apparently thought it was weak. I don't want to stir you up conflict or overstate the threatening undercurrent in the call, but the message was clearly there, and you should be aware before you speak to the press again, if you choose to do that.
"I don't feel like I am betraying him by reporting this to you, because I think that is probably what he wanted me to do. Of course, I would appreciate maximum op sec" -- operational security, I presume that is -- "regarding this e-mail and ask that you not forward it or let others read it. Bud."
Without objection, the entire statement is read into the record.
SPECTER: Ms. Lam, in your statement you say that "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."
Do you think that you were inappropriately removed?
LAM: Well, Senator, I think that it was unusual, given the tradition and the history of United States attorneys within the Department of Justice. I understand legally that we do serve at the pleasure of the president, and I have no problem with that. I think traditionally United States attorneys have held a unique position as presidential appointees confirmed by the Senate in their district.
So I think this was unusual. I'm troubled by it because of the potential chilling effect it has on United States attorneys.
SPECTER: Well, you know your situation better than anybody, and I phrased the question very carefully to get your judgment as to whether you think you were improperly removed. And you haven't quite answered it by saying that it was unusual. I think the committee would be interested to know in your judgment if you think it was improper.
LAM: Again, because I don't know the exact reason, and I have not been told that by the department -- in fact, when I did inquire what the reason was, I was told since we had, they didn't see why that information would be helpful to me.
Given that, it's a little hard for me to judge what would be proper or improper, and that's why I'm hesitating, Senator. I don't feel that I did anything in my role as U.S. attorney to either embarrass the administration or the president or warrant removal, but that is all I can say.
SPECTER: All right. I will accept your answer, but we haven't had your judgment. But I will respect that.
Ms. Lam, there were intimations that you were replaced because you were successful on the prosecution of Congressman Cunningham and that you might have been hot on the trail of others involved. Is there any basis for that suggestion or inference?
LAM: Of course, I've seen those suggestions or statements, and again, I have no further information than I've already said. I was given no reason, and I did not receive any communication directly from the department about it being related to the investigation.
SPECTER: Well, that's not quite responsive again.
LAM: I apologize.
SPECTER: You have made a comment that you wouldn't say anything about pending investigations, and you're nodding in the affirmative. And I think the circumstances of this matter warrant the committee making that inquiry, but we can do it in a closed session so that you don't have to talk about it publicly.
Do you care to say anything on that subject publicly?
LAM: No, I don't care to talk about any potential ongoing investigation, Senator, publicly. All I meant to say is that I did not receive any pressure from the Department of Justice or any intimation that I was being removed because of the Cunningham investigation.
SPECTER: Well, still not responsive. Were there continuing investigations arising from the Cunningham conviction?
LAM: Yes, and I think that is part of the public record. I believe we said that at the time we announced the Fogo and Wilkes indictment.
SPECTER: OK, well, we'll pursue that further, but in a closed session.
Mr. Iglesias, statements have made by both Senator Domenici and Congresswoman Wilson about your conversation, and I would ask unanimous consent that their full statements be made a part of the record.
SPECTER: Because I will only quote for a part of them. But this is what Senator Domenici said with respect to the conversations. "I asked Mr. Iglesias if he could tell me what was going on in that investigation and give me an idea of what timeframe we were looking at. It was a very brief conversation which concluded when I told him that the courthouse investigations would be continuing for a lengthy period."
And then Senator Domenici goes on, quote, "At no time in that conversation or any other conversation with Mr. Iglesias did I ever tell him what course of action I thought he should take on any legal matter. I have never pressured him nor threatened him in any way," close quote.
Is Senator Domenici wrong in what he said there?
IGLESIAS: Sir, it's true that he did not direct any specific action, but the fact that he would call and ask about an investigation I felt was a threatening telephone call.
SPECTER: Well, Senator Domenici says that, quote, "I have never pressured him nor threatened him in any way," close quote. What was there that led you to disagree with that and feel a pressure or a threat?
IGLESIAS: Due to the timing of the call -- it was late October -- I was aware that public corruption was a huge battle being waged by Patricia Madrid and Heather Wilson in the first district, and I assiduously tried to stay out of that fight, and I felt that him asking me about corruption matters, that anything I would say publicly would be used in attack ads.
I wanted to stay out of politics. I wanted to stay out of the campaign, because my job was law enforcement, not playing politics. So the fact that he would even ask about pending corruption matters I felt was inappropriate, and I did feel pressure to take action.
SPECTER: And so you thought whatever you said might be used in television commercials or attack ads?
IGLESIAS: In public, yes, sir. That's correct.
SPECTER: Well, what was the basis for your thinking that?
IGLESIAS: Because the ads focused on my office's prosecution of the state treasurer case. These were unprecedented cases in which my office was able to convict two elected officials in the state of New Mexico, back-to-back state treasurers.
We got convictions, and the fact that the state attorney general had not taken any action and had, in fact, indicted our federal cooperating witnesses became a huge point of contention between Congresswoman Heather Wilson and her challenger, Patricia Madrid. I wanted to stay out of that.
SPECTER: Well, Mr. Iglesias, aside from your conclusions and feeling pressure, did Senator Domenici say anything more than he has put in his statement where he said, "I asked Mr. Iglesias if he could tell me what was going on."
IGLESIAS: The fact that the line went dead after him saying he was very sorry to hear that I would not be taking any action before November, I felt pressure to move the case forward.
SPECTER: You told me you felt pressure and the line went dead, and he said to you that he was sorry that nothing would be happening before November. That's about the total substance of what Senator Domenici said?
IGLESIAS: That's correct, sir. It was a very brief conversation.
SPECTER: I now turn to the statement which was released by Congresswoman Heather Wilson. "In the fall of last year I was told by a constituent" -- reading in part -- "with knowledge of ongoing investigations that U.S. attorney David Iglesias was intentionally delaying corruption prosecutions. I called Mr. Iglesias and told him the allegation, though not the source. Mr. Iglesias denied delaying prosecutions. He said that he had very few people to handle corruption cases. I told him that I would take him at his word, and I did. I did not ask him about the timing of any indictments, and I did not tell Mr. Iglesias what course of action I thought he should take or pressure him in any way," close quote.
Now my question to you: Did Congresswoman Wilson say anything beyond "I told him about the allegations....Then I told him that I would take him at his word, and I did." Did she say anything more to you than what she has recounted in this statement?
IGLESIAS: Yes, Senator. We didn't talk about resources. She didn't say that anybody was alleging that I was intentionally withholding the indictments or investigation. She wanted to talk about the so-called sealed indictments, something that I could not discuss with her.
SPECTER: She wanted to talk about what?
IGLESIAS: Sealed indictments.
SPECTER: Sealed indictments.
IGLESIAS: That's correct, sir.
SPECTER: Did she say anything beyond what she said she said and the inquiry about sealed indictments?
IGLESIAS: I don't believe so, sir. It was a very brief conversation. Since obviously I could not talk about sealed indictments, I was nonresponsive to her inquiries.
SPECTER: And you thought that the conversation by Senator Domenici and Congresswoman Wilson -- those calls were inappropriate.
IGLESIAS: Yes, sir, I do.
SPECTER: Did you report those calls to the Department of Justice?
IGLESIAS: I did not.
SPECTER: Why not?
IGLESIAS: I felt terribly conflicted because Senator Domenici had been a mentor to me. He had assisted me early in my career, and Heather Wilson was a friend, an ally. We campaigned together back in 1998. I saw her go from being a very unaccomplished public speaker to being a very accomplished public speaker, and I felt a conflict between my loyalty to them as friends and allies and my duty to report under DOJ guidelines.
SPECTER: Well, Mr. Iglesias, as an experienced prosecutor you know about the importance of a prompt complaint to establish credibility?
IGLESIAS: Yes, sir, I do.
SPECTER: Well, I think it's very useful that you have come forward and testified. I commend you for doing that. And what the committee is trying to do is find out exactly what was said and whether your reaction to it was caused by others and whether what they did was inappropriate.
But that leads me to the next question and it is: What made you change your mind as to what you have just said about your feeling toward Senator Domenici as a mentor and what you said about Congresswoman Wilson about your regard for her and how she had helped you?
What led you to change the view of not making a prompt report to your superiors at the Department of Justice and coming forward at a later date with what you have just told us?
IGLESIAS: Yes, sir. I've always been trained that loyalty is a two-way street, and I believe that they were behind me being asked to resign.
I began thinking during the month of December that I knew performance was not the issue. I have data to support that. My office is performing superbly. I'm proud of my office, especially my Las Cruces office.
I started thinking, "Why am I protecting people that not only did me wrong, but did the system of having independent U.S. attorneys wrong?" So upon further reflection, I thought the right thing to do was to go public with the fact that I had been contacted inappropriately by two members of Congress.
SPECTER: Well, in light of the stance taken by the Department of Justice in terminating so many U.S. attorneys -- and I don't condone it; we haven't seen any reason for it with the kind of performance that the U.S. attorneys have undertaken -- but did the thought cross your mind that they might have terminated you for the same reason they terminated others without having Senator Domenici or Congresswoman Wilson cause your termination?
IGLESIAS: At the time -- early December -- in the days after getting my phone call on Pearl Harbor day, I wasn't thinking about my colleagues. I didn't know what had gone on in the other districts until a few weeks later. But during the month of December I hadn't really connected the dots. I didn't know why I'd been asked to resign.
In fact, when I asked Mike Battle, "Mike, why did they ask to terminate me?" he said, "I don't know, Dave. I don't want to know, and I don't think -- I don't want to know. All I know is this came from on high." That was a quote: "on high." So his response didn't help me understand why I was being asked to resign when by demonstrable DOJ internal data, my office was performing well.
SPECTER: When did that conversation with Mr. Battle occur?
IGLESIAS: On December 7, 2006.
` SPECTER: When you were terminated.
IGLESIAS: Well, when I was asked to resign effective the end of January. Yes, sir.
SPECTER: Well, when did you first conclude that Senator Domenici and Congresswoman Wilson were instrumental in your termination -- or your being asked to resign.
IGLESIAS: Probably some time during the month of January as I was ruminating as to why. I knew that misconduct was not a basis. That's never been alleged as to any of us. I knew that performance was not the real basis.
The only third possibility would be politics. And I started thinking, "Why would I be a political liability when a few years ago I was a political asset?" And then I thought about the two phone calls, and I knew that the race in New Mexico was very close. I suspect they believed that I was not a help to them during the campaign, and I just started to put the dots together.
SPECTER: And how long after you concluded in your own mind that Senator Domenici and Congresswoman Wilson were responsible for your being asked to resign did you make the complaint about that?
IGLESIAS: I believe I made public with the general allegation that two members of Congress had contacted me in late February of this year.
SPECTER: So how long would that have been after you came to the conclusion in your own mind that they were responsible for your being asked to resign?
IGLESIAS: Approximately a month later.
SPECTER: Thank you, Mr. Chairman.
FEINGOLD: Thank you, Mr. Chairman.
SPECTER: I was watching the clock closely.
FEINGOLD: Thank you, Mr. Chairman, for holding this second hearing and for continuing this important investigation into the unprecedented dismissal of eight U.S. attorneys in the past few months.
Obviously, it's absolutely vital that our citizens be able to rely on the integrity of the justice system. It's equally important that they have confidence that individuals who represent the federal government in the justice system are above reproach and are acting in the interest of justice, and not politics, at all times.
Indeed, Attorney General Gonzales testified in January that he would, quote, "never ever make a change in the United States attorney position for political reasons," unquote. Yet there is increasingly disturbing evidence that political motivations played a significant role in what happened and that the Department of Justice did its best to obscure that fact.
Initially, the Department of Justice told this committee that dismissals were all performance related. Then Deputy Attorney General McNulty conceded at our last hearing that Bud Cummins in Arkansas was not dismissed due to his performance.
Then we learned that most of the ousted U.S. attorneys had received stellar performance reviews right up until their dismissal. Former Deputy Attorney General James B. Comey even declared Mr. Iglesias, who is with us today, was, quote, "one of our finest," unquote.
It seems to me that an already troubling situation has been further complicated by this committee receiving conflicting and inaccurate information about the reasons why these attorneys were asked to resign. And this hearing is finally shedding some real light onto what happened.
Finally, I was deeply concerned to learn that members of Congress may have tried to influence an ongoing federal investigation that Mr. Iglesias was conducting. I am told that Mr. Iglesias' testimony this morning was chilling in that regard.
The intrusion of partisan politics in the prosecutorial discretion of our U.S. attorneys and the way they conduct their investigations and pursue their indictments is absolutely unacceptable. The ethics committee should take these allegations very seriously and should fully explore what investigation and action is warranted. Even an appearance of impropriety can harm our judicial system.
Whatever role political motivation has played in the dismissals of these U.S. attorneys, I think it's clear that the administration has not acted in the manner that upholds the best interest of law enforcement and the reputation of our criminal justice system. Fortunately, Mr. Chairman, you are giving us the ongoing opportunity to explore this problem, and I really appreciate that.
I'll ask a couple of questions. First, I want to thank all the witnesses for their dedication to public service, and especially for agreeing to testify before us today. Let me ask a question to all of you about priority setting.
The administration initially talked about performance issues being the reason for the dismissals, and when they were pressed on that, they clarified that it was unhappy with the way in which some of you had set prosecutorial priorities for your offices.
I understand that Mr. McNulty, the deputy attorney general, has said that for some offices there were insufficient resources being dedicated to certain kinds of immigration cases. For others it might have been drug cases, child pornography cases or some other issue.
In your testimony to us, you state that you each felt an obligation to set the priorities for your offices in a manner that reflected the needs of your individual districts. And that, obviously, seems reasonable to me. It also seems to me that this justification for your dismissal is awfully convenient.
With the limited resources currently available to law enforcement in our criminal justice system, I wonder whether anyone could meet all of the priorities that the administration has set up.
I guess I'd like each of you to talk a little bit about to what degree do you believe that a critique of the way that priorities have been set could be leveled at any of the 93 U.S. attorneys serving at any given time.
And if every U.S. attorney has some shortcomings in the way he or she sets priorities in the office from the point of view of the Department of Justice, at what point does that become a legitimate reason for dismissal?
Ms. Lam, do you want to start off?
LAM: Thank you, Senator Feingold. I think it is, as you point out, a difficult job for every U.S. attorney. Since we entered on June four or five years ago, depending on the case, we have been asked to pursue priorities in virtually every area, ranging from corporate fraud to cyber crimes, child pornography, fire arms, drug cases, fraud cases and identity theft, and the list goes on and on.
Those priorities never really are ever retracted. They're just added to.
And I think that it is an important and vital part of the U.S. attorney's responsibilities to evaluate the crime problem in his or her district and their interaction with local law enforcement to see who can carry which area of crime so that there is the best coverage, if you will.
Terrorism, of course, is the primary goal for U.S. attorneys' offices after 9/11, and so that used an enormous number of resources as well. So it is a balancing act that all U.S. attorneys engage in, as members of this panel know.
And it does concern me that lack of pursuit of one of 20 or 30 priorities would be used as a reason to remove a United States attorney, particularly where the dialogue had not risen to that pitch. In other words, there had been no confrontation or ultimatum, and in fact, quite the opposite, there was reasoned discussion and seeming acceptance and understanding by the department as to the balancing of priorities in the district.
FEINGOLD: So you were never informed by any DOJ people, top people or White House people that they were unhappy with this aspect of your performance, the priority setting. Is that right?
LAM: Certainly not to this level. There were sometimes inquiries made. I many times engaged in discussion and always felt that the department understood and accepted and supported my approach to various priorities.
FEINGOLD: So the comments could not be characterized as signifying that they were unhappy with your choice of priorities.
LAM: No, sir.
FEINGOLD: Mr. Iglesias?
IGLESIAS: I'd like to just read a sentence from Mike Battle dated January 24, 2006, to me. "I want to commend you for your exemplary leadership in the department's priority programs, including anti-terrorism, weed and seed, and the Law Enforcement Coordinating Committee." At no time did I receive any communication from main Justice that I was not following the priorities of the Department of Justice.
FEINGOLD: Thank you.
MCKAY: Senator, I was never advised by the Department of Justice that I was failing to follow its priorities or that my office was ineffective in any way, shape or form.
In fact, I think I had the most current evaluation by the Department of Justice, which was finalized September 22, 2006. My leadership was cited. More important to me, the work of assistant United States attorneys and the staff people in my office was cited, I think, in very outstanding terms.
And so I think it's fair to say -- and I know that you've had witnesses here who have downplayed the importance of these evaluations, and I can assure you having gone through two of them, having 27 people from the Department of Justice interviewing 170 people in my district and on my staff for over two weeks -- it's not an insignificant evaluation.
And so the written report from my office, and I have a letter just like the one my good friend David Iglesias just read, commending me for the outstanding work of my office and the fact that I met the priorities of the Department of Justice. So I don't know what they're talking about when they're talking about policy. And no deviation was ever cited to me for the Western District of Washington.
FEINGOLD: Thank you very much.
CUMMINS: The only thing I would add to what my colleagues -- of course, it hasn't been alleged against me that my district failed to meet the priorities, so I'm separated out. But I would want to say that every administration is entitled to set their own priorities.
I think that if your party took the White House, that that administration would be entitled to reorganize the priorities of the Department of Justice just like every other department.
And in fact, I think that's one of the strongest arguments for the political appointment of United States attorneys, because the administration is entitled to have a leader in each district that could put the limited resources that we have available to us behind the items that are identified as priorities.
In our case, Carol referenced 20 or 30, and it depends on how you count them. In my mind we have about seven top priorities, and what that means to me is, no matter what else is going on, if we have a case that comes up in terrorism or violent crime or civil rights or corporate fraud or child exploitation, we're going to find the resources, even if we have to rob them from somewhere else. We're going to respond to those cases.
And I think it's useful for us to know what those priorities are, and it's important that administrations resist the temptation to add to that list indefinitely, because if you have too many priorities, there are no priorities.
But that being said, I think it's very important and a huge part of our jobs as presidentially appointed and confirmed United States attorneys to recognize the priorities of the administration and make sure that those are reflected in our district. Every district is different.
FEINGOLD: Let me just ask one more question, Mr. Iglesias. You said that when you received the call from Mr. Battle on December 7th, he told you that the decision came from, quote, "on high," unquote. What did you think he meant by that?
IGLESIAS: Two possible sources: White House counsel or the fifth floor, which is where the AG and deputy work.
FEINGOLD: Thank you, Mr. Chairman.
CARDIN: Thank you, Mr. Chairman. I very much appreciate these hearings and I want to thank all of our witnesses for their service to our country and to your districts. Your work is well known, not only as U.S. attorneys, but in other areas that you have helped in our legal community.
I just really want to underscore the point that Senators < Schumer > and Specter stated, and that is no one challenges the administration's right to name the U.S. attorney or to ask for the resignation of the U.S. attorney. That's the absolute right of the administration.
But as Senator Specter said, that cannot be used to impede an investigation or to intimidate the work of the U.S. attorney's office. And there are just too many examples here that require us to move forward. We cannot stop. We have to find out what has happened in this regard.
As Senator < Schumer > pointed out, in my district of Maryland, there is now a report that a former U.S. attorney was threatened because of a political investigation that he was doing by a member of the governor's staff. I don't know the circumstances in that case, and we certainly need to find out the facts. This is certainly a very serious allegation.
My question to you is: Do you have any information about what impact this is having on the morale of the U.S. attorneys' offices in your districts -- how people feel about the way power may have been used and what this could mean as far as retention and attracting the best people to go into the U.S. attorneys' office as we have in the past. I'd be just curious as to whether you see a concern that we should have that this could have an impact on our U.S. attorneys' offices.
LAM: Well, Senator Cardin, I think that any time a United States attorney departs, there's always some disruption to the office in a sense, particularly if it's an unknown who's going to take over afterwards. That's even aside from the circumstances which occurred here.
Certainly, when this occurred and my office, I think, found out in a very difficult manner when there was a leak to the newspaper in mid-January, and then subsequently when the press began reporting that the reason that I was leaving was because the administration was unhappy with the perceived lack of prosecutions in immigration, I think that that was very difficult for my office, because as noted earlier approximately half of our resources go to enforcing border crimes and reactive border crimes.
The office works extremely hard, carries a voluminous caseload that I think is unique to the southwest border districts. Nobody sits on their hands in our office. Everyone works very hard to cover both reactive crimes and proactive investigations. I am here as much to clarify things that the committee wants to know as to defend my office's record and the very good people who work very hard in that office.
CARDIN: I'd be curious -- anyone else wants to respond, fine. But U.S. attorneys generally have had the reputation of being above the political fray, and people really want to work in the U.S. attorneys' office because they know they'll have the freedom to do what's right without being intimidated. It would just seem to me that what has happened here will have an impact on the recruitment.
CUMMINS: Senator, what I would say about that is that I've been real concerned about the impact on my office, not because the office can't carry on their good work without me or any other U.S. attorney.
The fact is that the backbone of these offices are the career people, who tend to be nonpartisan and stay there in some cases quite a long time. And they're going to get the work done with my leadership or somebody else's leadership, and so it's not that I'm irreplaceable, but I was concerned about the manner that these decisions -- the decisions themselves are probably of most interest to you, but from my perspective they were just handled so poorly.
And I really felt like that demonstrated an insensitivity to the effect on my office and other offices, because it really created some awkward situations and put me in a position where I valiantly attempted for six months and failed to kind of conceal the facts of how things were going, because I just couldn't see if I told my office exactly how the decision had been implemented, that that wouldn't somehow inhibit my successor's ability to be successful in the office. And the office was important to me, and the people there are important to me. So I'm concerned about that.
And in retrospect I wish I -- I was able actually and gratuitously to stay quite a while after I got the call in June. I didn't really have any immediate plans, and I was kind of dragging my feet deciding what I wanted to do next, and as things worked out, I was able to stay.
In retrospect, in spite of the fact that I wouldn't have gotten a check every week, I wish I'd have left pretty quickly after I'd gotten the call, because I was very proud of my leadership and the time of working with my office up to the time of the call. After that, it just got kind of weird. And I just feel like it was kind of a bad work atmosphere, and I feel like I could have cured that by just going ahead and getting out the door.
So I think it's a good question, because I think people should be focused on the effect of these career people that are actually doing the work out there. They're not particularly partisan, and they kind of tolerate he politics of the necessary changes in the leadership, but I don't think they probably would appreciate it if they perceived that some kind of extra political activity was going on that was directly impacting their offices like that.
CARDIN: I would just hope that one of the messages from this hearing, Mr. Chairman, is that we're doing these hearings for several reasons, one of which is to make it clear that we want the U.S. attorney's office to maintain its high standard of independence, and we applaud those who have made a career in the U.S. attorney's office, as well as those who have come to the U.S. attorney's office with extraordinary talent in order to serve their country and community, and that this committee is committed to making sure that tradition is maintained and continued. And if there was a problem with what happened, we want to make sure that never happens again.
Thank you, Mr. Chairman.
WHITEHOUSE: Thank you, Mr. Chairman.
Thank you all for your presence here today. I know it's not an easy day for you. Welcome to the national association of former United States attorneys. Consolation prize.
Mr. Cummins, let me ask you first. I'd like to ask you to put your U.S. attorney hat back on. You're still in office. Think of a significant grand jury investigation that you led as United States attorney in your district. And consider that a significant witness in that grand jury investigation has just come into your office to relate to you that prior to his grand jury testimony, he was approached about his testimony in exactly or essentially exactly the words that Mr. Ellston approached you. What would your next step be as United States attorney?
CUMMINS: Well, I think I know where you're driving at with that question, and I'll answer it, but I'd like to also maybe qualify it. We take intimidation of witnesses very seriously in the Department of Justice and in the U.S. attorneys' offices, so we would be very proactive in that situation.
I would qualify that by saying that at the time this discussion was had, we weren't under subpoena. The idea of testifying was just kind of a theoretical idea out there, and I would say to the best of my ability to characterize the conversation I described, that to the extent we talked about testimony at all, it was the idea that running out and volunteering to be part of this would not be viewed charitably by the people that it would affect.
WHITEHOUSE: But if that sort of approach had been made to a witness in an active proceeding that you were leading and you were extremely proactive about it, that would leave you where?
CUMMINS: Well, we would certainly investigate it and see if a crime had occurred.
WHITEHOUSE: And the crime would be?
CUMMINS: Obstruction of justice -- I think there are several statutes that might be implicated, but obstruction of justice.
WHITEHOUSE: Mr. McKay, same question to you. If you're in your U.S. attorney's chair, the conversation that Mr. Cummins related to you in his e-mail is related to you about a witness in a pending grand jury matter, what would the next step be that you would take as the United States attorney?
MCKAY: I would be discussing it with the assigned prosecutor and federal agents.
WHITEHOUSE: With regard to?
MCKAY: With regard to possible obstruction of justice.
WHITEHOUSE: Mr. Iglesias, I don't know that I need to repeat the question at this point. I assume you...
IGLESIAS: I was listening.
IGLESIAS: Same answer, sir. I would contact the career at U.S. A and probably the FBI and talk about what's the evidence we have to maybe move forward on an obstruction investigation.
WHITEHOUSE: Ms. Lam?
LAM: Fundamentally the same answer. Witness intimidation.
WHITEHOUSE: It also strikes me that in our complex system of checks and balances in this country, one of the helpful checks and balances is what I consider to be a healthy tension that exists between main Justice, which has its priorities and its initiatives, and the United States attorneys in the field who know their judges, who know their locations, who know their agencies and who, as you said, Ms. Lam, have an understanding of where within the mosaic of enforcement they could best employ their resources compared to state and county municipal resources.
And it strikes me, as somebody who has lived in that environment for a while, that this purge, if you will, is what one could consider a fairly disproportionate response.
And I'm wondering if you would comment on what effect you think this will have on your colleagues with respect to that healthy balance and the extent to which push back against the department is viewed as a positive thing in certain situations -- again, in our system of checks and balances.
And specifically, Ms. Lam, in your case in the extent to which your role as really in many respects our forefront United States attorney on national public corruption cases, what chilling effect -- the fact that this was applied to you -- might have on your colleagues?
LAM: Well, Senator Whitehouse, I think the difficulty here, as I think I've tried to indicate earlier, was sort of the mystery that surrounded the calls we received on December 7th.
Generally, I think if there were events that were going to lead up to a request for resignation, there would be some sort of ramp up, some sort of transparency to what the issue was, at least between the United States attorney and the Department of Justice.
I think the fact that the recipients of the call were all shocked and trying to inquire what the reason was I think is what for me causes the greatest problem for the remaining United States attorneys -- that there is no notice or awareness, and therefore it becomes a guessing game as to how it is that the department is displeased.
And, of course, now we've heard some of the after-the-fact explanations, and nobody really knows what emphasis to put on them or whether they actually played a part in the initial decision.
So again, without tying it particularly to my situation and the particular investigation, I think that is the concern, that there is mystery, and therefore, one then says, "Well, could it be because of this or could it have been because of that?" and that's the chilling effect. "Perhaps I should just play it safe and try not to displease anybody." And I don't think it's in the best interest of the country to have United States attorneys who just want to play it safe.
WHITEHOUSE: Mr. Iglesias?
IGLESIAS: I'm not sure I can add a whole lot more to what Ms. Lam mentioned, but I think what this entire controversy is about is separation of powers and the independence of the United States attorney, which historically has been true regardless of the administration in power.
And what happened to me, I believe, is a violation of the separation of powers and also calls into question if political pressure does result in less independence, United States attorneys have to be independent. Politics can not play a part.
And I hope the long-term effect of these hearings is that the future interactions between the branches relative to investigations is done correctly, because in my case it was not done correctly.
WHITEHOUSE: Thank you.
MCKAY: Senator Whitehouse, I want to say that I continue to have the greatest respect for my currently serving colleagues around the country as United States attorneys.
And I do believe that, notwithstanding the speculation and the upset that's occurred over the forced resignations of myself and my colleagues, they will continue to pursue the qualities that we hope we demonstrated in ourselves, which are prosecutorial independence, integrity, fairness and a rejection of the idea that partisan politics or political favors in any way enter into our work.
I know they did not enter into mine, and so whether others acted on those things -- I hope that's not true.
And I do have confidence in the able men and women in my office in Seattle and Tacoma, and I do also in the currently serving United States attorneys. And I think they will stand up to this, and I know they will.
WHITEHOUSE: It does make it a tougher environment for policy disagreement with main Justice, though, doesn't it?
MCKAY: I would say that they will be as careful as always.
WHITEHOUSE: Well said.
Finally, Mr. Cummins?
CUMMINS: As I was explaining to Jody what a United States attorney was when I got to be one, I told her with some excitement that it was a really neat job and that you might have to go out and make really tough decisions and prosecute powerful people, including political people in your own party, and at the end of the time I was United States attorney, we might not have a friend in town if I did the job right.
And she kind of looked at me funny, like why do we want this job?
But I remember thinking along those terms that if you did your job right as United States attorney, you don't know where it will lead you, and you might have to make some really tough decisions. And as David said, you might have to not give information to people that you've been close friends with, and things like that.
But it never occurred to me in that dialogue with my wife or in that thought process that the department wouldn't insulate me even if I became unpopular with my friends at home -- that as long as they were convinced that I was following the book and I was doing my duty, they would insulate me from that criticism, even if we didn't get into the country club.
And it doesn't really relate to my case, but I've got to be honest with you. I was very concerned to see that some unnamed sources at the department suggested in the case of some of my colleagues that part of the reasoning for their dismissals might have something to do with congressional disapproval in their home districts.
That, without some kind of internal investigation to see if it was merited or not -- I don't like to use the word "chilling" very much -- but that's a little bit chilling, because if you have to keep everybody happy, you can't really do this job right, because sometimes you have to make some really tough decisions. And so I do think that that's an important point.
WHITEHOUSE: Mr. Chairman, thank you. I just want to say how impressive I feel these witnesses have been in their demeanor and in their candor with all of us, and I, for one, am proud that they served us as United States attorneys.
We have a vote that began about seven minutes ago, and I think what we'll do is break briefly and resume at 12:15. Senator Sessions has his first round, and some of us have our second round, so we're going to briefly recess for 10 minutes.
SCHUMER: The hearing will come to order once again. OK. I do not see Senator Sessions here, so I am going to take my second round, and then we will go to Senator Sessions, and then one on our side, one on their side, second round.
I know that all of you have another appointment at 2 p.m., so we're going to try to wrap up here by 1 p.m. the latest. OK.
I'm interested in the conversations you each had with Mike Battle when he called you. I know Mr. Iglesias mentioned something of it. Can you each tell us about that? I'm interested to just hear what he said. Did he give you any reason? Did he express any regret? Did he thank you for your service?
I know Mike Battle. He served in the Western District of New York. In fact, I fully supported his nomination. I think he's a good man, and as I mentioned in my statement, I have questions as to why he has stepped down. But let me ask each of you.
Why don't we start with you, Mr. Cummins?
CUMMINS: Of course, it's been some time, but the best I remember, Mike was obviously...
SCHUMER: Did he call you as well, because you were not one on the December 6th...
CUMMINS: Yes, sir. Mike Battle called me in June of last year. I don't have the exact date. He and I are pretty friendly. He's a good man, and I've enjoyed being his colleague as the United States attorney. I thought he's done a great job as the executive director of EOUSA, and he called and said, "This is a really tough call to make, so I'm going to get just get right to the point." I don't remember who he said -- somebody wants your resignation. I don't know how he phrased it, but he said...
CUMMINS: No, no individuals were identified in the call -- who had made the decision or why or anything like that. Well, he did eventually say why. He may have said the White House -- he may have said the administration -- would like your resignation and would like you to be ready to resign as soon as your replacement can be ready.
And, of course, to be honest with you, I had never heard of anybody, absent malfeasance, being asked to step down, so I thought maybe he had McKay and Iglesias on a conference call about something completely different, and this was a joke. So I kind of waited for the laughter, and it didn't come, and so I realized he was serious and said, "Mike, have I done something wrong?" And he said, "No, no, no. It's absolutely to the contrary. You've done a great job. This is entirely about the administration's desire to give somebody else the opportunity to --"
CUMMINS: No, sir.
CUMMINS: Eventually, it became apparent that Mr. Griffin was the person who was coming in.
MCKAY: Yes, it did, Senator. I received a phone call from Mike Battle in the morning of December 7th in Seattle. He advised me that the administration -- it was the word he used -- sought to go in a different direction and that I would be asked to tender my resignation effective the end of January.
I think after a fairly stunned pause, I asked him, because I did then and still do consider him a friend, "Mike, what is this about?" And he said, "John, I can't give you any additional information than that."
I waited a second and said, "I can't be the only one getting this call. Are others being called?" And he said, "John, I don't have any information I can give you on that question."
I said, "Is there anything that you have been authorized to tell me?" And he said, "No." And I said, "OK."
And he said one last thing, which was, "You know, sometimes it's reasonable for someone getting a call like this to conclude that you've done something wrong." He said, "That's not always the case."
I didn't really know what he meant then, and I didn't ask him further. It was clear that he was delivering a message he didn't want to deliver to a friend, and I respected him for it and ended the call.
MCKAY: I didn't know what to think, Senator, because we are all aware that only the president can ask us to resign, and, of course, I'm a lawyer. I was waiting to hear the words "the White House" or "the president" and I did not hear them. And I think that the use of the word "administration" was carefully chosen to leave it vague.
< SCHUMER >: Mr. Iglesias, you mentioned that they said "on high." Did you make any assumptions as to where that would be? I think you mentioned that to one of my colleagues here. You thought it would be the deputy attorney general or the White House counsel.
IGLESIAS: My assumption, Senator, was the White House counsel or the AG's office or the deputy's office.
LAM: I'll start by saying I also consider Mike Battle to be a friend and a very good man. He did call me on December 7th. He indicated that the Department of Justice wanted to thank me for my years of service, that they wanted to take my office in a different direction and that they would like my resignation effective January 31st.
I think I responded something like, "Wow," and then, "May I ask why?" And he said that he did not know. I asked him whether this was normal in some way, and he said something to the effect that although he had heard of things like this happening in the past if something bad had happened, this was certainly the first time in his tenure.
I did not have any indication that there were others involved at that point.
< SCHUMER >: Right. But none of you assumed that it was Battle's decision. I think it's fair to say that every one of you thought that Mike Battle was not making this decision himself, but rather was passing a message. Is that correct?
Let the record show all four witnesses nod their head in the affirmative.
Mr. Iglesias, I have a couple of questions for you, because one of the reasons that the Justice Department said you had a performance problem was that you were an absentee landlord. Just to get the record clear here, isn't it true you served in the Navy Reserve, which required you to serve your country for approximately 40 days a year?
IGLESIAS: That's correct, sir. In fact, I took my call from Mike Battle, ironically, on Pearl Harbor day as I was coming back from Navy duty in Newport, Rhode Island. And I'm required to serve at least 36 days of duty per year. Sometimes I add a little extra duty, so it probably averages out to 40, maybe 45 days of duty per year.
IGLESIAS: I'm very proud of my Navy service, and it was on my resume...
IGLESIAS: That's very ironic, since the Department of Justice enforces the USERRA, the Uniformed Services Employment and Reemployment Rights Act, that ensures that Guard members and Reserve members have full employment rights and are not discriminated against on the basis of their military affiliation.
IGLESIAS: Never, sir.
CUMMINS: No, Senator.
MCKAY: There had been some discussion by individuals in the deputy attorney general's office about a law enforcement information system that I was heading unrelated to individual prosecutions, but other than that -- no, Senator.
MCKAY: That's correct, Senator.
MCKAY: Well, I think the system is seen as the national model, and I don't take credit for that for myself, Senator, but it is seen as the model. I had the full support of Deputy Attorney Comey, as well as chairing a 15-member committee of United States attorneys.
And one more for Ms. Lam. When we met with Deputy Attorney General McNulty, he said one of the reasons they were concerned with you was that you didn't have enough re-entry prosecutions. He then said that they had let you know that they thought you should up your re-entry prosecutions. I then asked him, "Did she? And did she meet your expectations?" And he said, "I don't know," which sort of rung a little hollow.
If this was one of the reasons to dismiss you, you would think that they would at least inquire whether you had met their needs of re-entry prosecutions. Can you comment on that? Is anything that I've just mentioned wrong?
LAM: No, Senator. I can't think of any specific time when I was told to up my re-entry prosecutions.
In fact, as I indicated, my interactions with the department following letters received from Congressman Issa and some of his colleagues were positive. I subsequently met with Congressmen Issa and Sensenbrenner. With the department's approval, I related the contents of that conversation to the department and I explained how our efforts were directed towards the worst of the worst and we were getting lengthier sentences on them.
The response from the Office of Legislative Affairs, I believe, was something along the lines of, "Good. It sounds like it went well, and perhaps they learned something from your meeting."
< SCHUMER >: Right. OK. Now that we're at the conclusion of this hearing, I just want to get this on the record again. To each of you, based on everything you know sitting here today, do you believe that you were fired for any failure of performance, as alleged by the Justice Department? Again, if you would answer it yes or no, that would be helpful.
MCKAY: No, Senator.
IGLESIAS: No, sir.
LAM: No, sir.
I'm now going to turn the podium over...
I see we have Senator Graham here, so if each of you takes the allotted 10 minutes, and then we'll wrap up. Our witnesses, who have another appointment at 2 o'clock, will be able to have a little time to get over there, maybe have a little lunch, et cetera.
SESSIONS: Thank you, Mr. Chairman.
I have a great respect for United States attorneys. It was a delight beyond measure to be selected. I'd been an assistant United States attorney. I loved the work and had been out in private practice for four years, and when President Reagan gave me the opportunity to serve again, it was a tremendous thrill.
I think being a U.S. attorney is better than being an assistant United States attorney, but not much. Got a little more headaches, as you can tell -- all of you. You certainly don't have any guaranteed tenure. You serve at the pleasure of the president. You are required every day to try to do the right thing.
I did my best to do that, and I do think that you have to be strong in that position and do the right thing. You've just got to do what you believe is right.
However, a United States attorney is a part of the Department of Justice. It serves the pleasure of the president, and there are certain priorities and so forth that the administration has a legitimate right to pursue and to expect its prosecutors to pursue, and that certain cases, if not brought by the United States attorney, no one else can bring them. And so they're just never prosecuted.
And so a United States attorney who flatly refuses to significantly prosecute certain types of crimes -- to me, I always thought -- was basically placing himself above the Congress who made it a crime to begin with. And policies are pretty important.
Ms. Lam, I always thought that gun prosecutions were a fabulous part of what the Department of Justice should do, and looked at the numbers that you brought -- and it was a priority of the Department of Justice and President Bush. Isn't that correct?
And like in 2002 you prosecuted 24 cases; 2003, 17. This is under 922 and 924. 922 is possession after conviction of a felony and 924 is carrying a firearm during conviction of a crime. Is that correct?
Those to me are the bread and butter charges. That's what you bring much of -- 2004, 18; 2005, 12; 2006, 17.
For the same period the Southern District of Texas prosecuted 946; the Western District of Texas, 894; the District of Arizona, 897; the district where I prosecuted, the Southern District of Alabama, with one-fifth of your resources, 439.
So wouldn't you agree that the president or the attorney general should be somewhat concerned that you aren't in synch with the policies of the Department of Justice with regard to prosecuting gun cases -- that you had a policy that was different from the policy of the president?
LAM: Well, Senator Sessions, what I would say is that the Project Safe Neighborhoods, which was the firearms initiative, was actually a joint federal and state initiative in the sense that it was looking at the community as a whole.
When Deputy Attorney General Jim Comey came to my district -- I believe in 2003 -- we sat down and talked about firearms prosecutions in our district. And what I explained to him is that San Diego, the southern district, is sort of a unique situation, because we only have two counties in our district, and 95 percent of the population resides in one county, as opposed to some of my colleagues, most of whom have many, many counties which lie within their districts and therefore, many, many district attorneys, some of whom believe more than others in enforcing the gun laws.
California also has very strong state gun laws and enhancement penalties for firearms use. I canvassed the local law enforcement community, and what they told me was that they were very satisfied with the gun prosecutions, the firearms cases, the problems they had, because it was very well handled by the district attorney in San Diego county.
I talked to the deputy attorney general about the situation that we had 179,000 people arrested along the southwest border with Mexico in California alone, which was my district, and that half of my resources were already devoted to taking the worst criminals off the street under our 1326 alien re-entry program...
SESSIONS: I know you have a lot of challenges, and I'll get to that in a moment on the immigration area, but it doesn't take that many resources to prosecute a 922 case. I mean, you bring the charge, most of them plead guilty, and you go on to the next case.
LAM: We do...
SESSIONS: I've picked up a file from my assistants and gone down and tried the case because they had a conflict, with a few hours notice.
LAM: Senator Sessions, it's a zero sum game in our district. With thousands of alien cases to do, we could do hundreds of gun cases, but then nobody would do the criminal alien cases. The district attorney can't handle those.
SESSIONS: General alien cases -- I don't want to go into a whole lot of detail, but you all made these complaints. According to the Citizens Commission, you prosecuted in 2006, after being discussed with this, 1,411 illegal alien prosecutions, whereas the Southern District of Texas did 4,132; the Western District of Texas, 2,699; the District of Arizona, 2,193.
LAM: Was that -- I'm sorry...
SESSIONS: So I think there was some concern there in several of your policies. I understand that you have a right to have policies and should set some policies. They felt your policies were too restrictive in the kind of cases that you would prosecute.
There may be a good faith policy, but let me just ask you first on this and I'll let you respond. With regard to the policy, you do not contend, do you, that a United States attorney is free to have a policy that's unreviewable as to what kind of cases they would prosecute?
LAM: A policy? I would expect that if the department had any concerns, they would feel free to discuss that with the U.S. attorney.
SESSIONS: And if the appointing authority had a different policy and wanted you to carry out a different policy, and you in good faith said, "I think my immigration policy is good," then it's you or the attorney general who wins under that circumstance. Don't the attorney general and the president get to have someone as United States attorney who executes their policies?
LAM: There was never a disagreement. Specifically, I was told, "I got you. You're starting from a different baseline." There was never any disagreement.
SESSIONS: So you never received any counsel about concerns from Washington that your policies might not -- and your prosecution numbers weren't in harmony with what they thought they should be?
LAM: There was discussion several years ago. There were questions asked about the numbers of prosecutions. I explained the situation in my district. I was led to believe that they understood.
And I informed them several times that we were fully supportive of the initiative, and we were working to find cases where the district attorney's office was getting substantially less time than we could get federally.
And I would note that in the first two months of 2007, we brought more firearms charges than in the entire year in 2006. So many of our investigations were long-term undercover investigations that yielded much larger targets than perhaps we would have, had we just been doing many of the cases that you are describing, Senator.
SESSIONS: I know a lot of the United States attorneys used to think they wouldn't prosecute a bank fraud case unless it was $200,000. They thought that was something to be proud of. You know, we have these high standards of prosecution, and as a result they prosecuted very few cases because they thought other cases were beneath their prosecution.
But I would just say, ultimately, the United States attorney is amenable and, I think, subject to the policies of the president who appoints him.
Let me just mention that I believe strongly that a United States attorney should not be interfered with in prosecution matters. I don't really think that's something that should occur.
I've never called a United States attorney, since I've been in the Senate, to ask them to do or not do something on a case or a prosecution. I think that would be wrong, but I'm not sure non- lawyers fully understand all that and have thought that through. I'm aware of the Department of Justice manual and what it says; others may not have been aware of that.
SESSIONS: OK. I saw the green light.
But the attorney general manual, Mr. Iglesias, would say that if you received a contact from a member of Congress that would impact your prosecution, you should report that to the attorney general. Is that correct?
IGLESIAS: Yes, sir.
SESSIONS: And I would just say the policy of the Department of Justice is absolutely rigorous in defending, in my experience, a United States attorney who is doing the right thing and handling those cases. And if you'd done so, if you felt in any way that you had a problem, I think if you called that to the attention of the Department of Justice, I believe you would have been affirmed in your judgment about how to handle a case.
I'm sorry, Senator Sessions. It's just we have a time limitation here.
GRAHAM: To each of you, I'm trying to understand a little about how long have each of you been U.S. attorney, starting with you, ma'am?
LAM: I've been U.S. attorney since September 4, 2002.
GRAHAM: OK. Who was the U.S. attorney before you?
LAM: There had not been a confirmed U.S. attorney since 1998. Patrick O'Toole was the interim U.S. attorney before I came in.
IGLESIAS: I started my duties on 16 October of '01 through 28 February of '07.
MCKAY: October 2001 to January 26, 2007.
CUMMINS: December 21, 2001 to December 20, 2006.
GRAHAM: Those are long stints, aren't they, as U.S. attorney? In my state I'm trying to get as many people through that job as I possibly can, particularly young lawyers who I see have great potential serving down the road on the bench. I understand. Do you all agree this is an employment-at-will job?
CUMMINS: I think I can speak for all of us, Senator, that we serve at the pleasure of the president.
GRAHAM: Yes, and I think President Clinton, when he got into office, he asked everybody to submit their resignation so he could get some people in. That's OK with you all, right? If you got a call from the attorney general tomorrow saying, "We appreciate what you've done; we want to get somebody new," nobody objects to that process?
CUMMINS: I had personal feelings when they called me about it, but those were really irrelevant. The truth is that they can make a decision for any reason or no reason.
And I would suggest to you, Senator, that in some of the cases the problem is none of us has certainly publicly protested these decisions. We were all going to accept the fact that we serve at the pleasure of the president. It was only when Congress took the administration to task, and the department endeavored to try and explain these decisions to some of our detriment, that any of us spoke up at all.
GRAHAM: Let me just say this about each one of you. I think you understand the nature of the job, that it's a political appointment, but it's also a public responsibility. Once you get there, it's not your job to play politics. It's your job to enforce the law.
And these are long stints. I mean, in South Carolina, I don't know what the longest serving U.S. attorney is in an eight-year period, but I consciously try to cycle people through just because it's a wonderful experience to have. I mean, it's not a lifetime job. It's going to end one day, and the more people who can have that experience, the better.
Your problem is that you're caught in this political contest, and you feel like your reputations have been unfairly besmirched. And let me tell you, I sympathize with that. I really do. I don't want anyone to leave this job and having their reputations or performance questioned.
And I do stand by the idea that anybody in your job could be asked to leave tomorrow, and it's really the Congress has no business saying that's good or bad, to be honest with you, as long as it's done for the right reasons.
And the question is, the right reason to me is just I want some other people to have that experience. And I don't think anybody really disagrees with that.
GRAHAM: Now to you, Mr. Iglesias, when you got the contact from Senator Domenici, did you report it to anybody up the chain of command?
IGLESIAS: I did not. No, sir.
GRAHAM: OK. And I know you've got a personal relationship with Senator Domenici, and I guess what I'm trying to figure out is in my business we get complaints all the time about what you all do or don't do. And you try to weed through this the best you can, and especially the more profile the case, the more contacts you get. Have all of you been called by a politician at one time or another to be asked about a case?
CUMMINS: I never have. I've talked to politicians, but never about a case.
MCKAY: I have previously testified here, Senator, before you were here, about a phone call that I received on a preliminary inquiry.
LAM: Never about a specific case.
GRAHAM: OK. All right, well, we're just going to have to work through this. And from what I can tell, maybe your caseloads are out of line with the Department of Justice, but you've been there six years, so obviously, whatever performance problems people allege you have, they sure ignored it for a long time.
So my point is that there's a lot of politics going around here, and I don't want you all to get caught up in it.
So, Mr. Chairman, as we work through this, let's don't change the rules in the middle of the game, and let's don't make up reasons why we replace people, and let's make sure that what is an inquiry about a case is properly explained on both sides.
And I look forward to getting this matter behind us, and Congress needs to do a better job, and obviously, the administration needs to do a better job, and maybe we'll learn something from all this. Thank you very much.
< SCHUMER >: I thank my colleague. I'd just make one point. If the policy was after four years or six years people should retire, they ought to state it publicly. They ought to apply it across the board. No one has.
We're going to adjourn the hearing, if Senator Specter -- I know he seemed to want a second round, but I don't see him coming in here. All right. Then I'm just going to make one final statement, and we will -- oh, here he comes.
Thank you, Mr. Cummins.
See him there? Could someone just go poke his head and see if he's coming?
We're trying to get you out of here as quickly as possible.
Oh, OK. Nature has called.
SPECTER: When we are called back votes and returned -- I know we have kept you waiting, and it's somewhat disjointed, but there are interruptions we just can't avoid.
Mr. McKay, you commented about a call you got from Ed Cassidy, who was the chief of staff to whom?
MCKAY: Representative Doc Hastings of Richland, Washington, Senator.
SPECTER: And he was making an inquiry which you thought improper, but it didn't go too far, once you pulled back. Is that the sum and substance of what happened?
MCKAY: Senator, I'd rather characterize it myself, which is I received the phone call. I, like my colleague Mr. Iglesias, was immediately concerned to be taking a phone call from a chief of staff in the midst of the election broo-ha-ha and carefully listened to what he said and what he asked. And he asked about the status of the case, which I gave him -- the publicly known information.
SPECTER: What was the status of the case?
MCKAY: Well, there was no case, Senator. Both the Seattle FBI and my office, the United States attorney's office in Seattle had publicly indicated that we would receive complaints from any source regarding potential criminal conduct, whether it be election fraud, whether it be felon voters, whatever it would be, because this was, as you can understand, on the front page of every newspaper. And so that was publicly known.
But, of course, had we been investigating the case, we would not have discussed it any further than that. And so I laid that out for him, and then he proceeded to push the conversation beyond my statement of what the status was.
SPECTER: And what did he specifically do to push the conversation?
MCKAY: I would be surprised if he got an entire sentence out, Senator, because I knew I had just communicated to him all that I could communicate. And I can't tell you what his partial sentence was, because I interrupted him and I...
SPECTER: Stopped him.
MCKAY: I did, Senator, and that is exactly what I did. I stopped him and I told him, "I'm sure you're not about to ask me anything about an investigation that isn't public or to try to lobby me about that." And he agreed that that was not why he was calling.
SPECTER: You asked him that leading question.
MCKAY: I did ask him a leading question.
SPECTER: OK. And you got the expected answer.
MCKAY: I did get the expected answer.
SPECTER: So that pretty much ended it.
MCKAY: It did end the conversation, and again, I felt that it was sensitive, wanted to relate it immediately, and I called in the criminal chief and the first assistant to relate the entire conversation the moment it ended and to ask if they concurred with me that I had stopped the call before it crossed the line, and they...
SPECTER: You did that because you wanted some corroboration of your concern with some other officials who were in a position to either agree or disagree with you.
MCKAY: Yes. I think it was prudent for me to call them and to ask if they concurred. The decision would be mine, but I wanted to see if they had the same impression that I did, or if I had missed anything.
SPECTER: Well, that sounds to me as if, as we lawyers would say, you were protecting the record. You wanted to be on record as having called this to someone's attention.
MCKAY: No, Senator. I don't even recall having that thought. I felt the call was significant. I was troubled by the call, and I wanted to consult with my two most senior advisers on the impact of that call. I assiduously wanted their input.
SPECTER: OK. If the conversation had gone further, if you thought that the call had been improper, that it had contained questions which were improper, would you have reported it to the Department of Justice?
MCKAY: Yes, under those circumstances, I would, and again...
SPECTER: And why would you have done that?
MCKAY: Because I was aware of the department policy to report such contacts and in fact, it's why I called in my senior people to ask if they concurred that I had not allowed this individual to cross the line by interrupting him, and they did agree with me. And we decided at that point it was appropriate for me to take no further action.
Senator, I was not really interested in -- if I was interested in documenting that call, I probably would have created a memorandum of it, which I did not, but I'm quite certain that my first assistant and criminal chief recall that conversation vividly.
SPECTER: If there had been -- this is a little repetitious, but I want to be sure I understand you -- if you had thought that what the caller had done was improper -- had gone that far -- you would have reported it to the Department of Justice.
MCKAY: I think so. I think if I felt that it was clearly improper, I would have reported that.
SPECTER: Do you think Mr. Iglesias should have reported to the Department of Justice the calls he got from Senator Domenici and Congresswoman Wilson?
MCKAY: Well, Mr. Iglesias is here. He can say what he thinks. I believe Mr. Iglesias wishes he had done that.
SPECTER: Excuse me?
MCKAY: I said I believe Mr. Iglesias has already testified that he wishes he had done that.
SPECTER: Mr. Cummins, I've gone over your e-mail and I'm searching for the specifics as to what Mr. Ellston said to you. And there aren't specifics in the e-mail as I read it. Could you, referring to the e-mail, show where what you said here reflected what Ellston said to you?
CUMMINS: Senator, I really had forgotten there was an e-mail until -- since I wrote it, I saw it for the first time last night.
SPECTER: How long after your conversation with Ellston did you send this e-mail?
CUMMINS: I would say within an hour, and I can remember thinking it might not be very smart to put that into an e-mail, but that I was very busy and that I really didn't have time to make five phone calls, and I wanted five people to be aware that that conversation had taken place, so...
SPECTER: What I'm getting at, Mr. Cummins, is you have given your reactions and your impressions as to what Ellston was trying to do, but I'd like to get as precise as we can on exactly what he said.
CUMMINS: Senator, I'm afraid I'm not going to be able to help you with exact quotes, but I can tell you that he made it an observation or a comment. As I said before, I would not be a very good witness in a criminal prosecution, because I would tell the jury I don't know what it was. You can characterize it however you want. I don't think, given the timing and everything, that he intended to obstruct justice. I think he intended to observe...
SPECTER: That was my next question.
CUMMINS: Well, it was a different time. That was way back in February 20th, but...
SPECTER: What he said to you did not constitute obstruction of justice.
CUMMINS: No, sir. I wouldn't have construed it to him trying to commit a crime. I thought it was a lot more about the publicity than it was potential testimony. The testimony part of our discussion, as I recall, kind of came in at the end when I was trying to assure him that the people here and others were not trying to stir up a controversy.
We were trying to remain loyal to the administration that made us U.S. attorneys, that we didn't want to be here, and we resented the fact that this situation had been created to potentially put us here.
And as one example, I told him that we had turned down opportunities to testify, and he did react to that. But most of our conversation was just that obviously they had read an article in the Washington Post that had given one or more people in the department some chagrin, and I think the message was, you know, we really don't want to keep reading articles like this, if you all expect us to stay however restrained they felt like they were being at the time.
SPECTER: OK. You don't think it constituted obstruction of justice, and you and I both know what obstruction of justice is, right?
CUMMINS: Yes, Senator. I think that would be a tough conviction.
SPECTER: OK. The next question is: Do you think that he was trying to stop you from testifying?
CUMMINS: No, I think the call was a lot more directed at the time of just publicity -- that one or more of us had responded to inquiries from the media, and in my case, had been quoted, and I think they were feeling like that we were trying to stir a controversy. And -- if you took him at his word -- that they were feeling like they were being more restrained than they could be, and they were doing it on our behalf to protect us, and if we wanted them to continue to maintain that posture, that we needed to understand that we shouldn't be stirring the pot.
SPECTER: OK. It wasn't obstruction of justice. They weren't trying to stop you from testifying. Did you sense that he was trying to stop you from talking further to the newspapers?
CUMMINS: I think that it's fair to say that he was suggesting. I don't think he was telling me to do anything. I think he was suggesting that it was an if-then. If people keep talking to the newspapers, then it is more likely that more information would need to be made public to defend the department's action.
SPECTER: OK. So that's in the context of his in effect saying to you, if there is more information coming from the U.S. attorneys who were asked to resign, then the Department of Justice would have to respond to whatever is said and to say why they were asked to resign. Is that the sum and substance of it?
CUMMINS: I think that's a fair summary, Senator, and like I said, some people would want to interpret that as a threat, but it could also be, "Hey, here's some friendly advice. You know, I've seen these things before and if you all keep pushing this, it's likely that somebody's going to feel like they have to step up the defense, and it may come back to hurt you."
SPECTER: OK, if it's friendly advice, then you would want to pass it on to other people who would have the benefit of your sense that if there was more talk to the newspapers, there'd be more responses from the Department of Justice, and the essence, as you put it, of friendly advice would be that if people stop talking, there won't be any responses to the talk.
CUMMINS: I don't want to ask you repeat that, but can I try and take a crack at it?
SPECTER: I'd be glad to...
CUMMINS: I think that I had some trepidation about sharing the conversation at all, because I felt like it was a personal conversation between Mike Ellston and myself, but I can remember sitting at my desk thinking, if I were John McKay or David Iglesias or Carol Lam and tomorrow the Washington Post or the Wall Street Journal or the New York Times called me, I would want to know that somebody in the department had opined that things might get more embarrassing for me if I continued talking to the press.
CUMMINS: Friendly advice would very likely be one fair characterization. I've attempted to not characterize the call. I just tried to pass the substance on it to my colleagues.
SPECTER: Well, if you characterize it as friendly advice, I'm going to drop this particular question.
CUMMINS: I will concede that that's one very possible characterization of the call.
< SCHUMER >: I would just say that the witnesses then didn't have to be somewhere else at 2 o'clock. That's all. That's the only reason. I'm happy to keep going. It's just they have to be at the House at 2 o'clock by subpoena.
On the Washington Post story dated February 4th, there is a reference here to presidential adviser Karl Rove, whose former aide was the person that replaced you. And the speculation was -- I'm going to lead you a little bit here to make it shorter.
CUMMINS: I appreciate that, Senator.
SPECTER: But you don't have to agree with anything that's leading. To have his former aide become the U.S. attorney to groom for possible political office -- was that the long and short of it?
CUMMINS: I don't remember the article, and I have no idea what the plan was for my successor. I'm not privy to that.
SPECTER: Were you aware of any speculation that Karl Rove's former aide was replacing you to groom him for public office?
CUMMINS: Senator, I would have no way of knowing why those decisions were made.
SPECTER: Do you think it was inappropriate for Karl Rove's former associate to replace you as U.S. attorney?
CUMMINS: Number one, I don't know that my opinion on that is really relevant. I served at the pleasure of the president. Who they wanted to replace me with was entirely within their discretion, but I don't know of any reason objectively that Tim Griffin isn't qualified to be United States attorney.
SPECTER: OK. His qualifications have to be determined by somebody else. But the final statement here.
Cummins said, quote, "The political aspect of it shouldn't really be a shock to anybody," close quote. What did you mean by the political aspect?
CUMMINS: I'm afraid I don't remember that article. There have been a lot of them. But I think that I was probably referring to the fact that Tim Griffin having a political background should not just be an earth shattering news flash.
I had a very political background. I'd run for Congress. I'd been involved in a lot of political -- I think David and John had, and any number of our colleagues in the United States attorney community.
The only important thing in this business is that even though you get the job politically, you must leave politics at the door while you do the job. And if you don't know that, you are not going to be successful. But the fact that somebody has some politics in their background to me shouldn't disqualify them to be United States attorney, because that would disqualify a whole lot of us.
SPECTER: OK. This is the final question.
Cummins said, quote, "The political aspect of it shouldn't really be a shock to anybody," close quote. Noting his own status as an active Republican lawyer who served as one of Arkansas' electors committed to Bush in 2000, quote, "he said every U.S. attorney knows they serve at the pleasure of the president," close quote.
Does that sum it up pretty well?
CUMMINS: Whoever said that was very insightful.
SPECTER: Excuse me? Didn't hear you.
CUMMINS: Yes, sir. I agree with that statement.
SPECTER: Pretty well sums it up. You agree with it because it was your statement.
CUMMINS: I agree with it because I believe it to be true. Every one of us serves at the pleasure of the president.
SPECTER: Mr. Cummins, I thank you.
And I thank you, Mr. McKay and Mr. Iglesias, and Ms. Lam.
This is not an easy thing for you to do, to come forward as you have and testify. The three of us are lawyers here, a couple of former prosecutors, and we understand the situation, and we thank you for your contribution today.
And thank you, Senator Specter.
I'm just going to make three quick points, because he is, as you can see, a very good prosecutor. Number one...
SPECTER: Not much of a senator, but...
Number one, I just want the record to note, or just underscore, that Mr. Cummins said, "Friendly conversation was one interpretation of the memo."
Second, both Mr. McKay and Mr. Iglesias who are sort of the targets of the memo have different interpretations of the memo.
And three, the memo speaks for itself. The word "threat" is used several times in it.
We're not going to draw any legal conclusions here today. That's not our purpose, but there are some issues here.
I just in conclusion want to thank all the witnesses. I think you've proven the case about what fine prosecutors you are and what fine Americans you are. And we thank you for your service.
And the administration in response to your comments used the word "grandstanding," which, frankly, I resent. I'm sure you do, too, but you don't have to state so. You avoided coming, as Mr. Cummins talked about.
You're coming to this hearing because you've been subpoenaed on the House side and you would have been subpoenaed and had to come back on the Senate side and just agreed for the convenience of doing it all together to be here.
But the subpoenas are on the document, and the word "grandstanding" is entirely inappropriate.
And I would just say to the administration that this is not going to go away by intimidating or name-calling. There are a lot of serious allegations here.
Senator Specter and Senator Whitehouse talked about obstruction, and there are different views of that, both on this committee and on the panel, but the one thing I can assure the public is we're going to get to the bottom of this, because the integrity of the U.S. attorneys' office is so important to you, to us and to the country.
This hearing is concluded.
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