In late 2006 ( most on 7 December ), the US Department of Justice fired eight US attorneys, an unprecedented act according to the legal community. The news was delivered by either Deputy Attorney General Paul McNulty; by McNulty’s chief of staff, Michael Elston; or by Michael Battle, a senior Justice official.
The firings resulted in a firestorm of controversy. Learn about the players . Also, see The Firing Of US Attorneys – Nefarious Or Business As Usual?
How Congress changed the rules
This is a story that illustrates, perfectly, the old adage about avoiding watching anyone make sausage or law. The bill in question? The Patriot Act Reauthorization Bill of 2005.
When introduced as HR 3199 in July 2005, the bill totaled seven pages (web text converted to PDF). When signed by the President in March 2006, it had morphed into Public Law 109-177, a “final print” behemoth at 277 pages.
The bill is in the news because of this clause:
- SEC. 502. INTERIM APPOINTMENT OF UNITED STATES ATTORNEYS.
Section 546 of title 28, United States Code, is amended by striking subsections (c) and (d) and inserting the following new subsection:
”(c) A person appointed as United States attorney under this section may serve until the qualification of a United States Attorney for such district appointed by the President under section 541 of this title.”.
What Does It Mean?
The language that was replaced by PL 109-177 specified that if a US Attorney resigned before the end of his term, that the Court nominated an interim US attorney until the Senate acted on a Presidential nomination. The term for the interim US Attorney was limited by law to 120 days.
Now, the President makes the appointment, there is no limit to the interim appointment, and there is required no Senate oversight.
How Did It Happen?
On 11 July, Rep James Sensenbrenner, Jr (R-WI), introduced the seven-page bill. There were no co-sponsors. The Judiciary and Intelligence Committees had their way with the bill, and when the House passed the bill on 21 July, it totalled 117 pages.
The Senate didn’t like any of it; they sent the House a complete substitution on 29 July 2005.
On 9 November, the House agreed that the solution was a conference committee, where legislators from both chambers hammer out differences. It was in the conference process that this clause — as well as several other “miscellaneous” items — was added to the bill.
The conference committee revision was filed on Thursday 8 December 2005. The House passed the conference report on Wednesday 14 December, 251-174 (roll call vote – 207 Rs, 44 Ds). A full week = plenty of time to read the bill (or have a staffer read the bill.) Don’t say you didn’t know what you were voting for!
- NAYs —10
Not Voting – 1
The President signed the bill on 9 March 2006.
So there you have it — a handful of (mostly) men (I can find three women appointed to the conference committee) rewrote the bill behind closed doors. The conference process is not “open” — there is no record in the Congressional Record of who made what changes to the text. So we’ll never know who inserted this clause, unless they ‘fess up (or someone rats them out).
Firing Timeline, 2005
- Unknown: New Mexico Republican Party chair asks White House to fire US Attorney David Iglesias because “of dissatisfaction in part with his failure to indict Democrats in a voter fraud investigation in the battleground election state.”
- Early: Then White House Counsel, Harriet Miers asks Justice about the feasibility of replacing all 93 USAs.
- March: Kyle Samson, AG Gonzales chief of staff, sends a list of possible attorneys for replacement to Miers and William K. Kelley, the deputy counsel to the president.
- March: Seattle USA John McKay is reportedly placed on the list.
- November: Sampson sends a new list to Miers; Iglesias appears on the list of prosecutors to be dismissed.
- The Patriot Act extension — PL 109-177 — worked its way through Congress as HR3199. Read the bill text (pdf)
- Presidential Signing Statement
- AG Gonzales delegated “extraordinary authority over the hiring and firing of most non-civil-service employees” to two staff members: Kyle Sampson and Monica Goodling. Specifically, the secret order granted the two “the authority, with the approval of the Attorney General, to take final action in matters pertaining to the appointment, employment, pay, separation, and general administration.” (cite – 30 April 2007)
- According to Newsweek, “Kyle Sampson, Gonzales’s chief of staff, developed the list of eight prosecutors to be fired [in] October — with input from the White House.”
- Attorney Iglesias says he received phone calls from two members of Congress in October, pressing him “to speed up a probe of Democrats just before the November elections.” He goes public on 28 February.
- 7 December. US Department of Justice fires a raft of US Attorneys. Fired: Daniel Bogden (NV); Paul Charlton (AZ); Margaret Chiara (MI); H.E. “Bud” Cummins (AR); David Iglesias (NM); John McKay (WA); Carol Lam (CA); Kevin Ryan (CA).
- 19 December. David Iglesias (NM) Announces Pending Resignation
- 9 January. S. 214: Preserving United States Attorney Independence Act of 2007introduced.
- 12 January. San Diego Union Tribune reports that US Attorney Carol Lam has been asked to resign.
- 17 January. Floor speech by Sen. Dianne Feinstein (D-CA)
- Attorney General Gonzales told a Senate committee that all eight firings were for performance reasons — that there was no politics in play. “I would never, ever make a change in a United States attorney for political reasons or if it would in any way jeopardize an ongoing serious investigation. I just would not do it.”
- 12 February. SB 214 As Reported.
- 22 February 2007. The Congressional Research Service reports that most US Attorneys serve full terms.
- 23 February. Margaret Chiara (MI) announces she will resign from her position at US Attorney. From her statement: “She is the first woman in the history of the State of Michigan to serve as a United States Attorney.”
- 28 February. Last day as US Attorney for Iglesias, who says he received phone callsfrom two members of Congress before the 7 November election, pressing him “to speed up a probe of Democrats just before the November elections.” Iglesias does not name names. Sen. Pete Domenici (R-NM) and Rep. Heather Wilson (R-NM) “did not respond to repeated requests for comment.” Spokesmen for Sen. Jeff Bingaman (D-NM), Rep. Steve Pearce (R-NM) and Rep. Tom Udall (D-NM) denied contact with Iglesias.
- The House Judiciary Committee issues the first subpoenas from the 110th Congress – compelling former US Attorneys to testify before the Committee.
- 2 March. White House and Justice officials confirm White House approved firing seven US attorneys… “officials acknowledged that the ousters were based primarily on the administration’s unhappiness with the prosecutors’ policy decisions and revealed the White House’s role in the matter.”
- 5 March. DOJ employee Michael Battle resigns. Battle — the executive director of the Executive Office for United States attorneys — made the phone calls firing several of the attorneys on 7 December 2006.
- 6 March. Senate Judiciary Committee takes testimony from former U.S. Attorneys. Sen. Domenici and Rep. Wilson now confirm talking with Attorny Iglesias but challenge some details from his sworn testimony.
- 8 March. House Judiciary Committee Launches Investigation into Fired U.S. Attorneys
- 9 March. House Judiciary Committee Calls for White House, Miers to Provide Information on Fired U.S. Attorneys
- 12 March. Kyle Sampson — the chief of staff to AG Gonzales — resigns.
- 15 March. The Senate Judiciary Committee approves subpoenas for White House officials — including Kyle Sampson, Michael Elston, William Mercer, Monica Goodling, and Michael Battle — and six of the fired US Attorneys.
- 20 March. The Senate overwhelmingly (94-2-4) passes a bill rolling back the process for appointing interim US Attorneys to the 1986 code.
- 20 March. President Bush asserts executive privilege — saying that Congress could interview staff but not under oath and without transcripts.
- 21 March. House Judiciary Committee grants chair authority to subpoena White House and Justice officials, including Karl Rove and Harriet Miers.
- 22 March. Press reports revealed that an analysis of White House and DOJ emails — released by Congressional staff earlier in the week to seek aid in analysis — show an 18 day gap.
- 26 March. Monica Goodling, Counsel to the Attorney General and White House Liaison, advised Congress she would invoke her fifth amendment privileges and decline to testify. (pdf)
- 29 March. Former AG Chief of Staff Kyle Sampson invokes the “I don’t remember” defense in his testimony to Congress.
- 6 April. Goodling resigns.
- 17 April. Gonzales scheduled to testify before Congress.
- 19 April. Gonzales testifies before Senate Judiciary Committee; “I don’t recall.”
- 7 May. The DOJ signs off on a House Judiciary Committee request that DOJ grant immunity for Monica Goodling in exchange for her testimony before the Committee.
- 10 May . Gonzales to testify before the House.
- 29 July
NYT calls for Gonzales to be impeached.
- Hiring Laws Were Broken, Far and Wide
A just-released internal DOJ report describes an agency that operated with widespread illegal hiring practices, not only in US Attorneys appointments but also with Immigration Judges. And a second report finds the same pattern of behavior in the Department’s Honors and Summer Intern programs.
- DOJ Effectively OKs Putting “Party” Before The Law
Attorney General Michael Mukasey has declined to prosecute Bush Administration appointees who used political party affiliation and public policy litmus tests when hiring civil servants.
- 29 September: Attorney General Michael Mukasey appointed Nora Dannehy, the acting U.S. attorney in Connecticut, as special prosecutor investigating the firing of nine United States Attorneys. The announcement came with the conclusion of an 18-month investigation by the Office of Professional Responsibility and the DOJ Inspector General.
- Roll Call Vote – Cloture – Patriot Act Extension
- PL 109-177 (pdf)
- HR 3199 – As Introduced (pdf)
- HR 3199 – House Engrossed (pdf)
- HR 3199 – Senate Amendment (pdf)