By Dan Eggen and John Solomon
Washington Post Staff Writers
Tuesday, March 20, 2007
U.S. Attorney Patrick J. Fitzgerald was ranked among prosecutors who had "not distinguished themselves" on a Justice Department chart sent to the White House in March 2005, when he was in the midst of leading the CIA leak investigation that resulted in the perjury conviction of a vice presidential aide, administration officials said yesterday.
The ranking placed Fitzgerald below "strong U.S. Attorneys . . . who exhibited loyalty" to the administration but above "weak U.S. Attorneys who . . . chafed against Administration initiatives, etc.," according to Justice documents.
The chart was the first step in an effort to identify U.S. attorneys who should be removed. Two prosecutors who received the same ranking as Fitzgerald were later fired, documents show.
Fitzgerald's ranking adds another dimension to the prosecutor firings, which began as a White House proposal to remove all 93 U.S. attorneys after the 2004 elections and evolved into the coordinated dismissal of eight last year, a move that has infuriated lawmakers and led to calls for Attorney General Alberto R. Gonzales to resign.
The Justice Department last night gave the House and Senate Judiciary committees 3,000 pages of new documents related to the firings, including one e-mail that says Gonzales was "extremely upset" by Senate testimony Feb. 6 from his deputy, Paul J. McNulty. Gonzales felt that "some of the . . . statements were inaccurate," the e-mail says.
Justice officials said Gonzales specifically disagreed with McNulty's statement that a Little Rock prosecutor was fired to make way for a GOP operative. They also said the new documents show that political motivations were not a factor in the firings.
The latest revelations came amid reports that the White House has already launched a search for Gonzales's replacement and that support for the attorney general among Republicans in Congress is fading fast. One GOP strategist with close ties to the White House said last night that it is likely Gonzales will leave and that White House counsel Fred F. Fielding already has potential replacements in mind.
White House press secretary Tony Snow offered tepid support for Gonzales, saying President Bush still has full confidence in his longtime friend and ally. "We hope he stays," Snow said.
The March 2005 chart ranking Fitzgerald and other prosecutors was drawn up by Gonzales aide D. Kyle Sampson and sent to then-White House counsel Harriet Miers. The reference to Fitzgerald is in a portion of the memo that Justice has refused to turn over to Congress, officials told The Washington Post, speaking on the condition of anonymity because Fitzgerald's ranking has not been made public.
At the time, Fitzgerald was leading the independent probe into the leak of the identity of a CIA operative, which led this month to the perjury conviction of former vice presidential aide I. Lewis "Scooter" Libby. Fitzgerald, the U.S. attorney in Chicago, had also recently brought a corruption indictment in Illinois against former Republican governor George H. Ryan.
A Justice Department official yesterday sought to play down the importance of Fitzgerald's ranking, saying the chart was "put together by Sampson and is not an official department position on these U.S. attorneys."
Sampson resigned as Gonzales's chief of staff last week, and his attorney declined to comment yesterday.
Mary Jo White, who supervised Fitzgerald when she served as the U.S. attorney in Manhattan and who has criticized the firings, said ranking him as a middling prosecutor "lacks total credibility across the board."
"He is probably the best prosecutor in the nation -- certainly one of them," said White, who worked in the Clinton and Bush administrations. "It casts total doubt on the whole process. It's kind of the icing on the cake."
Fitzgerald has been widely recognized for his pursuit of criminal cases against al-Qaeda's terrorist network before the Sept. 11, 2001, attacks, and he drew up the official U.S. indictment against Osama bin Laden. He was named as special counsel in the CIA leak case in December 2003 after then-Attorney General John D. Ashcroft recused himself.
Fitzgerald also won the Attorney General's Award for Distinguished Service in 2002 under Ashcroft.
Justice spokeswoman Tasia Scolinos said yesterday that "Pat Fitzgerald has a distinguished record as one of the most experienced and well-respected prosecutors at the Justice Department. His track record speaks for itself."
But Fitzgerald also came under sharp criticism from many Republicans and press advocates for his aggressive pursuit of the Libby case.
The March 2, 2005, memo from Sampson came in response to a proposal floated by Miers to remove all U.S. attorneys during Bush's second term. Fitzgerald was placed in a middle category among his peers: "No recommendation; have not distinguished themselves either positively or negatively."
Although the ranking meant Sampson was not recommending those prosecutors for removal at the time, two U.S. attorneys who received the same ranking were fired last Dec. 7: Daniel G. Bogden of Nevada and Paul K. Charlton of Arizona.
Two prosecutors who were listed in the top category on Sampson's chart were also fired: David C. Iglesias in New Mexico and Kevin V. Ryan in San Francisco.
Two administration officials said Fitzgerald was never included on later lists of U.S. attorneys targeted for removal by Sampson. Administration officials and documents have portrayed Sampson as being in charge of the firings effort.
Sampson's memo was among more than 140 pages of documents sent to congressional investigators last week, but the names of most of the prosecutors and their rankings had been deleted. Senate Judiciary Committee investigators have been demanding an unredacted version of the memo, but the administration has refused to provide it, according to a Justice official and a Democratic Senate aide.
Administration officials said they do not know why Sampson put Fitzgerald in the "not distinguished" category. Bush said last year that Fitzgerald had done "a very professional job" in the CIA leak investigation.
The thousands of pages of documents released last night highlight the tension among the highest officials at the Justice Department as they struggle to cope with the firings and the resulting public outcry.
In the wake of McNulty's Feb. 6 appearance before the Senate Judiciary Committee, Gonzales was furious with how the deputy attorney general characterized the departure of Little Rock U.S. Attorney Bud Cummins It was explained as a move to insert Tim Griffin, a former White House political aide, into the slot.
In an e-mail, Justice's deputy communications director, Brian Roehrkasse, wrote to Sampson and another aide: "The attorney general is extremely upset with the stories on US attys this morning. He also thought some of the DAG's statements were inaccurate. . . . I think from a straight news perspective we just want the stories to die."
Roehrkasse said in a statement last night: "The Attorney General was upset because he believed Bud Cummins' removal involved performance considerations and it was that aspect of [McNulty's] testimony the Attorney General was questioning."
Another e-mail exchange shows that Sampson and McNulty aide Michael Elston did not want the fired federal prosecutors to testify before the Senate committee, a position that seems to support an allegation by Cummins that Elston threatened to retaliate against the former U.S. attorneys if they continued speaking out. Justice officials said last night that McNulty later verbally told Elston he should not take a position on testimony.
On Dec. 5, two days before seven U.S. attorneys were fired, McNulty admitted in an e-mail to Sampson that he was having second thoughts about firing Bogden, the U.S. attorney for Nevada, whose record provided no obvious performance issues or policy differences. McNulty also said he had not reviewed Bogden's performance before including him in the dismissal group.
"I'm a little skittish about Bogden," McNulty wrote. "He has been with DOJ since 1990 and, at age 50, has never had a job outside of government. My guess is he was hoping to ride this out well into '09 or beyond. I'll admit [I] have not looked at his district's performance."
The e-mails detail some of the personal and financial hardships the fired prosecutors have been going through -- particularly Margaret Chiara of Grand Rapids, Mich., who begged for help finding another job.
Staff writer Michael Abramowitz and washingtonpost.com staff writer Paul Kane contributed to this report.