Improving America's Security Act of 2007

IMPROVING AMERICA'S SECURITY ACT OF 2007 -- (Senate - February 28, 2007)

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Mr. WHITEHOUSE. Mr. President, the remarks the Senator from California and the Senator from New York have made today are very well taken, and I rise to express my shared concern with them and my support for their initiative to get to the bottom of what took place. In May of 1994 I had the honor to be sworn in as Rhode Island's U.S. attorney. It was one of the great honors of my life, equivalent to the great honor of being sworn in with you, Mr. President, into this extraordinary body. I knew when I took that oath that I would be forced to make very hard decisions and that my independence and my integrity would be my strongest allies as I discharged the extraordinarily difficult and powerful responsibilities of a U.S. attorney.

Last December, seven U.S. attorneys were fired by the Department of Justice, all on the very same day. That is unprecedented. Never, to my knowledge, in the history of the Department have so many heads of U.S. attorneys rolled all on the same day. These men and women had been confirmed in this great Chamber. By all indications, they were well qualified and performing well in their jobs. Several of them were involved in ongoing public corruption investigations. Yet in this unprecedented step, this administration showed them all the door. It suggests to us all the question: why might such an extraordinary act have taken place; why were they told their services were no longer required?

The Attorney General, Alberto Gonzales, told us this:

What we do is make an evaluation about the performance of individuals, and I have a responsibility to the people in your district that we have the best possible people in these positions.

Deputy Attorney General Paul McNulty testified that ``turnover in the position of U.S. attorney is not uncommon.'

So the two suggestions that were made were that this was performance related, that a performance evaluation had been done of these individuals and they had not measured up, and that it was just turnover. It is hard to accommodate both of those stories, but when one looks into each of them, it makes even less sense.

The committee, through Senator Schumer and Senator Feinstein, asked to see the Evaluation and Review Staff reports, what is called an EARS evaluation. When I was a U.S. attorney in Rhode Island, I lived through an EARS evaluation. All the local agencies were interviewed by career U.S. attorney services staff, detailed to Rhode Island just for the purpose of doing these evaluations. They happen in every office every 3 years. They are a significant part of the oversight and management practice of the Department of Justice, and they are extremely thorough.

We asked to see the reports. When it was clear that we were going to ask to see these performance evaluations, the Department began to back down. Mr. McNulty told the committee:

We are ready to stipulate that the removal of the U.S. attorneys may or may not be something supported by an EARS report because it may be something performance related that isn't the subject of what the evaluators saw or when they saw it or how it came up, and so forth.

There isn't much that an EARS evaluation doesn't look at, and contrary views began to emerge from the Department very shortly.

In an article published February 4, the Washington Post reported that:

[O]ne administration official, who spoke on the condition of anonymity in discussing personnel issues, said the spate of firings was the result of ``pressure from people who make personnel decisions outside of Justice who wanted to make some things happen in those places.'

Let's look at some of those places. In Arkansas, H.E. Bud Cummins III was a 5-year veteran U.S. attorney serving in Arkansas's Eastern District. Last June, he was asked to resign. The man chosen to replace the well-respected Mr. Cummins was Tim Griffin. Mr. Griffin is 37 years old. He served as Special Assistant to Assistant Attorney General Michael Chertoff in the Criminal Division of the Department of Justice, where he was sent as a detailee to the Arkansas U.S. Attorney's Office.

What Mr. Griffin lacked in prosecutorial experience, he more than made up for in political experience. Mr. Griffin is a former aide to Presidential adviser Karl Rove. He is also a former Republican National Committee research director. As those of us who have been through this sort of thing know, ``research director' is not about looking up old statutes; it is about prying into personal lives of other candidates in order to try to dig up dirt on them.

A more partisan choice could not have been made to replace Mr. Cummins. Remember, Mr. McNulty said:

The Department is committed to having the best person possible for discharging the responsibilities of that office at all times in every district.

It is just hard to believe that Mr. Tim Griffin was the best person possible, at least not as we ordinarily define those terms. At the end of our Judiciary hearing, Mr. McNulty admitted that Mr. Cummins, the Government's chief prosecutor in Little Rock, Arkansas, was fired to give Mr. Griffin the opportunity to have the appointment.

In San Diego, U.S. attorney Carol Lam successfully prosecuted Duke Cunningham, who pled guilty and resigned in 2005. She subpoenaed the House Armed Services, Appropriations, and Intelligence Committees in connection with a probe into Defense Department contracts. Her office indicted Kyle ``Dusty' Foggo, the CIA's former Executive Director, and Brent Wilkes, a defense contractor and top Republican fundraiser.

In her district, former Reagan U.S. attorney Peter Nunez--another Republican political appointee familiar with the world of U.S. attorneys because he served there himself; he served from 1982 to 1988--said this:

It's just like nothing I have ever seen before in 35-plus years. To be asked to resign and to be publicly humiliated by leaking this to the press is beyond any bounds of decency and behavior. It shocks me. It is really outrageous.

San Diego's top-ranking FBI official, Dan Dzwilewski, also commented on Lam's firing. Bear in mind, this is the Director of the FBI office that is operating as lead agency in these public corruption investigations. His quote:

I guarantee politics is involved ..... It will be a huge loss from my perspective.

Other U.S. attorneys, such as David Iglesias of New Mexico and John McKay of Seattle, said they had no idea why they were being asked to step down.

That changed recently. Today was posted a story from which I will quote:

The U.S. attorney from New Mexico who was recently fired by the Bush administration said Wednesday that he believes he was forced out because he refused to rush an indictment in an ongoing probe of local Democrats a month before November's Congressional elections.

David Iglesias said two members of Congress separately called in mid October to inquire about the timing of an ongoing probe of a kickback scheme and appeared eager for an indictment to be issued on the eve of the elections in order to benefit the Republicans. He refused to name the members of Congress because he said he feared retaliation. .....

"U.S. Attorney Daniel Bogden, who also stepped down Wednesday after being asked to leave in December' had it recently reported in the Wall Street Journal that the FBI was investigating in his district allegations ``whether Nevada Governor Jim Gibbons performed any official acts on behalf of a contract in exchange for gifts or payments. Gibbons, a Republican, has denied any wrongdoing.'

Bogden said he hoped that the ongoing case did not have anything to do with his ouster.

This is his quote:

You would like to think that the reason you're put in the position as U.S. attorney is because you are willing to step up to the plate and take on big cases, Bogden said.

It's not a good thing if you begin to wonder whether you'll lose your job if you pursue them.

Last month, a Las Vegas newspaper reported:

a GOP source said ..... the decision to remove U.S. attorneys, primarily in the West, was part of a plan to ``give somebody else that experience' to build up the back bench of Republicans by giving them high-profile jobs.

These are extremely troubling facts. The New York Times has recently editorialized on this subject and hypothesized three reasons for why these well-qualified attorneys were fired. As the New York Times said, ``all political and all disturbing.' The first reason: helping friends; the second, candidate recruitment; the third, Presidential politics.

The newspaper concluded that the politicization of Government over the last 6 years has had tragic consequences in New Orleans, in Iraq, and elsewhere, but allowing politics to infect U.S. Attorney's Offices takes it to a whole new level. Congress should continue to pursue the case of the fired U.S. attorneys vigorously, both to find out what really happened and to make sure that it does not happen again.

I would like to highlight two further concerns that come from my experience as a U.S. attorney. One concern is how this alters the balance between U.S. Attorney's Offices and what we used to call main Justice, and the second concern is the chilling effect on prosecutions of public corruption.

There is constant tension between the U.S. attorneys in the field and main Justice. The U.S. attorneys know their districts, they have practiced before those judges, they know their office's capabilities very well, and they have their own local priorities. Of course, the Department of Justice also has its own priorities, its national priorities set by the President, and the tension between those two is healthy and is constant. In getting its message out to the U.S. attorneys, the Department has a wide array of ways to send its signals and make its wishes known, but to take six or seven well-performing U.S. attorneys and sack them all at once ends that dialogue. It brings the blunt instrument of, not even persuasion any longer, but brute force, to bear.

Now, there can very well be policy differences between the Department of Justice and local offices, but this would be a first for the Department of Justice, to say: You haven't emphasized this enough so we are going to have your head. It will squash the healthy tension between U.S. attorneys and between the Department, and at least in my experience, the greater wisdom of the Department of Justice versus that of all the U.S. attorneys in the field was not such that it justifies this level of force in emphasis and enforcement and in the demand for conformity with its policy positions.

I submit there is long-term damage to the capabilities of the Department of Justice as this tension is disrupted. We live in a country of checks and balances, and tensions like these are very often the best things for the public we serve when they are allowed to be maintained in a healthy fashion.

The second point I would make is the chilling effect on prosecutions of public corruption. This applies particularly with respect to Ms. Lam in California. In many respects, she had become the leading edge of the Federal Government's sword point on public corruption investigation because of the investigations that I mentioned earlier in my remarks. Her office was leading the biggest public corruption cases in the Nation, with more to come it appears. U.S. Attorney Lam was personally at the helm of these investigations, and she was well qualified for that role. Her unceremonious expulsion from office will send a shockwave through the offices of her fellow U.S. attorneys, and that shockwave will carry a very unfortunate message because these cases are not easy ones.

Public corruption cases are resource intensive for the office involved. They are extraordinarily challenging. Witnesses are scarce and difficult, significant agent expertise is required, internal procedures governing the investigation itself are complex and onerous, and launching one's office at established political figures is a decision with potentially serious consequences not only for the U.S. attorney but for the career people in that office. Someone who has come through all of that and moved out onto the leading edge of public corruption investigation for this country, I believe, merits the active support of the Department of Justice not just for the good work done but as a message and a signal to U.S. attorneys around the country that when they step out into that public corruption arena, we will back them up.

The signal to the contrary is a dangerous one. When a U.S. attorney gets fired, and one who was deep into a public corruption investigation and is leading it so well that their termination draws a public rebuke from the FBI chief, antennae will go up across the country.

Madam President, I ask unanimous consent to have printed in the Record at the conclusion of my remarks a letter that the Attorney General has received from the National Association of Former United States Attorneys.

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Mr. WHITEHOUSE. Madam President, the sentence in that letter which strikes me as the most significant is:

We are concerned that the role of the United States Attorneys may have been undermined by what may have been political considerations which run counter to the proper administration of justice and the traditions of the Department of Justice.

This is not a good day. This is not the sort of thing that we need to be discussing. This is not the sort of thing that we should be discussing. As Senator Schumer earlier said, there is a lot of smoke in the air right now, and it looks as if there is actually some fire. It is truly incumbent on this body, the body which confirmed these individuals to their offices and which has oversight responsibility with the Department of Justice, to look into what is happening and to reestablish the procedures to prevent this from happening again.

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