Fired Prosecutor Disputes Justice Dept. Allegation
He Calls Testimony 'Unfair'; Meanwhile, Senate Panel Votes to Limit Attorney General's Power

By Dan Eggen
Washington Post Staff Writer
Friday, February 9, 2007

A recently fired U.S. attorney based in Seattle said yesterday that he was told of no performance problems when he was asked to resign, and he called critical remarks by a top Justice Department official "unfair" and inaccurate.

The comments by former U.S. attorney John McKay add to a growing tide of criticism of the Justice Department's decision to fire seven top prosecutors without explanation, and came on the same day the Senate Judiciary Committee voted 13 to 6 to limit the attorney general's power to appoint replacements.

McKay said in an interview that his Seattle office received glowing reviews as recently as last fall, when an intensive Justice Department audit heaped praise on McKay and his staff.

McKay challenged testimony this week by Deputy Attorney General Paul J. McNulty, who told the Senate panel that McKay and five other Republican-appointed U.S. attorneys were forced to resign for "performance-related" reasons.

"That is unfair," McKay said. "That reflects on my former colleagues in the office and the good work that we did, and I know that's not true."

McKay is the third U.S. attorney to speak publicly about his dismissal. Daniel G. Bogden of Nevada told the Las Vegas Review-Journal that he was given no explanation for being forced out and that he had not been told of any problems with his performance.

McNulty's testimony Tuesday also included an admission that the chief prosecutor in Little Rock, Ark., was fired to make way for GOP stalwart J. Timothy Griffin, a protege of presidential adviser Karl Rove and former researcher for the Republican National Committee.

The firings have angered lawmakers in both parties and have rapidly evolved into a serious political problem for the Justice Department. Yesterday's vote by the Judiciary Committee included approval from three Republicans: Sens. Arlen Specter (Pa.), Charles E. Grassley (Iowa) and Orrin G. Hatch (Utah).

The measure would repeal a provision in last year's USA Patriot Act reauthorization law that gave Attorney Gen. Alberto R. Gonzales the authority to appoint interim prosecutors for indefinite terms. The new legislation would return to the previous system, under which the attorney general appoints a replacement for 120 days and district courts appoint an interim U.S. attorney if a permanent one is not named in that time.

Chairman Patrick J. Leahy (D-Vt.) said the legislation is necessary to ensure Senate oversight and limit the "politicization of U.S. attorneys offices."

Justice Department spokeswoman Tasia Scolinos said that allowing Gonzales to appoint interim prosecutors is "good government and constitutionally sound."

"We are disappointed by congressional efforts to restrict our ability to appoint our own employees for temporary periods of time while a permanent nominee is selected," Scolinos said.

The House Judiciary Committee plans to hold hearings on similar legislation next month. They may include testimony from some of the fired prosecutors.

The leader of the House Democratic caucus, Rep. Rahm Emanuel (Ill.), has called on Gonzales to appoint one of the fired prosecutors, Carol S. Lam of San Diego, as an outside counsel to continue the corruption investigation related to former representative Randy "Duke" Cunningham (R-Calif.), who pleaded guilty to accepting $2.4 million in bribes in 2005 and is serving a sentence of as much as eight years. Scolinos said career prosecutors will be able to continue handling the case while a replacement is chosen.

In addition to Lam, McKay and Bogden, three other U.S. attorneys were told on Dec. 7 to resign: Paul K. Charlton in Arizona; David C. Iglesias in New Mexico; and Kevin Ryan in San Francisco. A seventh U.S. attorney, Bud Cummins in Little Rock, was notified he was being removed last summer.

McKay said he was called Dec. 7 by Michael A. Battle, head of the Executive Office of U.S. Attorneys, who only months before had sent him a congratulatory letter for the laudatory report issued by the Justice Department audit team. He said Battle told him to resign by the end of January.

"When I was composed enough to ask him why, he told me he couldn't answer any of my questions," said McKay, who has accepted a teaching position at Seattle University Law School. "I was immediately so surprised. He said nothing about performance issues or management or anything else."

McKay said that four days after Battle's call, the White House counsel's office also informed him that he was not among a group of three finalists for a federal judgeship in Washington state. He declined to say whether he believed political considerations went into his dismissal.

McKay angered other Republicans when he declined to intervene in a ballot dispute in the 2004 Washington governor's race. His brother, Mike McKay, served as U.S. attorney in Seattle under President George H.W. Bush.

In a highly unusual move, the chief judge of the federal court in Seattle publicly came to John McKay's defense.

"We were dismayed to see that the Justice Department was suggesting there was something wrong with his performance as a United States attorney," said Judge Robert Lasnik, a Clinton-era appointee who said he was speaking for all the judges on the Seattle court. "We unanimously agreed that he was absolutely superb."

Scolinos declined to comment on McKay's remarks.

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