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U.S. Attorney Firings Set Stage for Congressional Battle

By Dan Eggen
Washington Post Staff Writer
Sunday, February 4, 2007

H.E. "Bud" Cummins III had served for five years as the U.S. attorney in Little Rock -- a job he obtained in large part because of his credentials as a longtime GOP lawyer and avid supporter of President Bush.

So Cummins, 47, was more than a little surprised when he got a call from the Justice Department last year asking him to resign. He was told there was nothing wrong with his performance, but that officials in Washington wanted to give the job to another GOP loyalist.

"I don't think many of us were aware that the administration might want to ask someone to step aside just to give someone else an opportunity," said Cummins, who left office in December and was replaced by J. Timothy Griffin, a former aide to presidential adviser Karl Rove. "The precedent was that once you were appointed, assuming you were successful in office, you were there until there was a change in the White House."

Cummins was the first in a wave of seven U.S. attorneys to be fired by the Justice Department, a move that has prompted sharp criticism from Democrats in Congress and has set the stage for a legislative battle over the attorney general's power to appoint federal prosecutors.

Six of the prosecutors received calls notifying them of their firings on a single day shortly before Christmas, officials said, including the U.S. attorney who oversaw a prominent public corruption probe in San Diego and a prosecutor in New Mexico whose life as a military lawyer was portrayed by Tom Cruise in the movie "A Few Good Men." Most have told colleagues that they have no idea why they were shoved out, according to aides.

A little-noticed provision passed last year allows Attorney General Alberto R. Gonzales to appoint interim U.S. attorneys indefinitely without seeking approval from the Senate. Fearing an attempted end run around congressional prerogatives, both House and Senate Democrats have introduced legislation to repeal the provision. The Senate Judiciary Committee is scheduled to hold a hearing on the issue Tuesday.

"The U.S. attorneys' job is too important for there to be unnecessary disruptions, or worse, any appearance of undue influence," Sen. Dianne Feinstein (D-Calif.) said in a floor speech last month.

Gonzales and his aides say that they intend to seek Senate approval for every new U.S. attorney and that the old system, which allowed federal judges to appoint replacements, has both practical and constitutional problems. Justice Department officials also defend Gonzales's right to fire U.S. attorneys at will and have suggested that each of the recently dismissed prosecutors had performance problems.

"Every U.S. attorney, like the attorney general of the United States, serves at the pleasure of the president," Gonzales said in a recent interview with The Washington Post. "We can be asked to leave at any time; we can be asked to leave for any reason."

He added later: "From time, to time we make an evaluation as to whether we believe we can put in people who can produce better results, who can do a better job."

But there is also evidence that broader political forces are at work. One 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 these places."

Several of those fired have already left, and the rest will be gone by the end of the month.

The dismissals include the heads of two of the most important U.S. attorneys' offices in the country: Carol S. Lam in San Diego and Kevin Ryan in San Francisco. The others were John McKay in Seattle; David C. Iglesias in New Mexico; Daniel G. Bogden in Nevada; and Paul K. Charlton in Arizona. All declined to comment for this story.

Ryan's departure was perhaps the least surprising because his tenure had been marked by public complaints about plummeting morale and high staff turnover. But Lam's departure has been more controversial, prompting public complaints from the head of the local FBI field office and questions from Sen. Patrick J. Leahy (D-Vt.), Rep. John Conyers Jr. (D-Mich.) and others. Some Democrats speculated that the administration was attempting to undermine the ongoing corruption probe centered on former representative Randy "Duke" Cunningham (R-Calif.), which was overseen by Lam.

"We have people from the FBI indicating that Carol Lam has not only been a straight shooter but a very good prosecutor," Feinstein said. "Therefore, it is surprising to me to see that she would be, in effect, forced out, without cause. This would go for any other U.S. attorney among the seven who are on that list."

Justice Department officials -- who discussed personnel issues on the condition of anonymity -- said that Lam's record was far more mixed, noting that prosecutions of firearms offenses plunged during her tenure and that she personally oversaw a major health-care fraud case that ended in a mistrial.

Another surprise was the firing of McKay, whom Cummins described as "a rock-star U.S. attorney" and whose effort to build a law enforcement database is the template for a new nationwide program at Justice. McKay was also rebuffed for a federal judgeship at the same time.

Like President Bill Clinton before him, Bush removed nearly all the U.S. attorneys when he came into office and replaced them with his own Senate-confirmed appointments. Under previous statutes, the attorney general had the power to appoint an interim prosecutor for 120 days in the case of a vacancy, but then it was up to the local district court to make an appointment until the Senate approved a final pick.

Gonzales and many legal experts say that arrangement was a troubling intrusion on the separation of powers between the independent branches of government.

A new provision, which was quietly tucked into USA Patriot Act reauthorization legislation last year, allows Gonzales to appoint interim prosecutors indefinitely. Not counting the recent dismissals, there have been 11 vacancies since the measure was enacted, and Justice Department officials said they will provide nominations to the Senate for each position.

Feinstein and other Democrats fear the provision would allow an attorney general to avoid Senate confirmation of U.S. attorneys altogether and are proposing a return to the previous system.

B. Mahlon Brown III, a former U.S. attorney for Nevada who now heads the National Association of Former United States Attorneys, said most members of the group are in "shock and awe" over the wave of firings. "It goes against all tradition, and it's very troubling to a lot of us," Brown said.

But Dennis W. Boyd, executive director of the National Association of Assistant U.S. Attorneys, which represents currently employed federal prosecutors, said many of the group's members "do not see it as particularly unusual." Seven firings among 93 U.S. attorneys offices are not that many, Boyd added.

Cummins said "the political aspect of it shouldn't really be a shock to anybody," noting his own status as an active Republican lawyer who served as one of Arkansas's electors committed to Bush in 2000.

"Every U.S. attorney knows they serve at the pleasure of the president," he said.

Researcher Julie Tate contributed to this report.

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