CQ Transcripts Wire
Thursday, April 19, 2007 6:31 PM
SEN. PATRICK J. LEAHY, D-VT. CHAIRMAN: Good morning.
This week, like all Americans, we join in mourning the tragic killings at Virginia Tech on Monday. The innocent lives of students and -- before we start, I noticed the people holding outside. A lot of people stood in line a long time to be here. This is an important hearing. I would ask the people to be polite enough not to hold up something and block those who have waited in line, waited to hold this hearing.
Certainly, anybody can be here. But I will not allow anyone, no matter what positions they may be taking, to block the view of others who have a legitimate right to be here.
As I said, we join in mourning the tragic killings at Virginia Tech. The innocent lives of students and professors are a terrible loss for their families, friends and their community. It affects us all.
We honor them, we mourn their loss. My family and I hold them in our prayers and our thoughts.
And I expect in the days ahead, as we learn more about what happened how it happened and perhaps why it happened, we'll have debate and discussion, perhaps proposals to consider.
I look forward to working with the Department of Justice, with Regina Schofield, the assistant attorney general for the Office of Justice Programs. The attorney general's offered briefings and others to make improvements that can increase the safety and security of our children and grandchildren in schools and colleges.
Today, the Department of Justice is experiencing a crisis of leadership perhaps unrivalled during its 137-year history. There's a growing scandal swirling around the dismissal and replacement of several prosecutors and persistent efforts to undermine and marginalize career lawyers in the Civil Rights Division and elsewhere in the department.
We hear disturbing reports that politics played a role in a growing number of cases. And I've warned for years against the lack of prosecutorial experience and judgment throughout the leadership ranks of the department.
LEAHY: We're seeing the results amid rising crime and rampant war profiteering, abandonment of civil rights and voting rights enforcement efforts, and lack of accountability. I fear the Justice Department may be losing its way.
The Department of Justice should never be reduced to another political arm of the White House -- this White House or any White House. The Department of Justice must be worthy of its name. The trust and confidence of the American people in federal law enforcement must be restored.
Since Attorney General Gonzales last appeared before this committee on January 18th, we've heard sworn testimony from the former U.S. attorneys forced from office and from his former chief of staff.
Their testimony sharply contradicts the accounts of the plan to replace U.S. attorneys the attorney general provided this committee under oath -- under oath -- in January, and to the American people during his March 13th press conference.
The committee is still seeking documents and information and testimony so that we may know all the facts, the whole truth surrounding the replacement of these prosecutors who had been appointed by President Bush.
One thing abundantly clear, is if the phrase "performance- related" is to retain any meaning, that rationale should be withdrawn as a justification for the firing of David Iglesias, John McKay, Daniel Bogden, Paul Charlton, Carol Lam and perhaps others.
Indeed, the apparent reason for these terminations had a lot more to do with politics than performance.
LEAHY: In his written testimony for this hearing and his newspaper columns, the attorney general makes the conclusory statement that nothing improper occurred. The truth is that these firings haven't been explained, and there is mounting evidence of improper considerations and actions resulting in the dismissals.
The dismissed U.S. attorneys have testified under oath they believe political influence resulted in their being replaced. If they're right, the mixing of partisan political goals into federal law enforcement is highly improper.
The attorney general's own former chief of staff testified under oath that Karl Rove complained to Attorney General Gonzales about David Iglesias not being aggressive enough against so-called voter fraud, which explains his being added to the list.
With respect to Mr. Iglesias, the former U.S. attorney in New Mexico, the evidence shows he's held in high regard, considered for promotion to the highest levels of the department and chosen by the department to train other U.S. attorneys in the investigation and prosecution of voter fraud.
Then as the election approached in 2006, administration officials received calls from New Mexico Republicans complaining that Mr. Iglesias would not rush an investigation indictment before the November election. True accountability means being forthcoming. True accountability requires consequences for bad actions. So this hearing is such an opportunity.
Last November, the American people rejected this administration's unilateral approach to government and to the president actually without constitutional checks and balances. Rather than heed that call, within days of that election, senior White House and Justice Department staff finalized plans for seeing to the simultaneous mass firings of a large number of top federal prosecutors.
By so doing, they sent the unmistakable message, not only to those forced out but to those who remained, that traditionally independent law enforcement by U.S. attorneys would not be tolerated by this administration.
LEAHY: Instead, partisan loyalty had become the yardstick by which all would be judged.
So I do not excuse the attorney general's actions and his failures from the outset to be forthright with us, with these prosecutors, but especially with the American people.
The White House political operatives who helped spearhead this plan did not have effective and objective law enforcement as their principal goal. They would be happy to reduce the United States attorneys' offices to just another political arm of the administration.
If nothing improper was done, people need to stop hiding the facts and tell the truth and the whole truth. If the White House did nothing wrong, then show us: Show us the documents and provide us with the sworn testimony -- the sworn testimony -- of what was done, and why and by whom.
If there's nothing to hide, the White House should stop hiding it. Quit claiming the e-mails cannot be produced. Quit contending that the American people and their duly elected representatives cannot see and know the truth.
And I trust that after the weeks of preparation for this hearing, the attorney general's past failures to give a complete and accurate explanation of the firings will not be repeated today.
LEAHY: There's always been a tacit and carefully balanced intersection between politics and our law enforcement system. But it's been limited to the entrance ramp, the entrance ramp of the nomination and confirmation process. And instead of an entrance ramp, this administration seems to have envisioned a political toll road.
The oversight has returned to Capitol Hill. The investigation already has pulled back the curtain to reveal unbridled political meddling, Katrina-style cronyism and unfettered White House unilateralism -- and directed at one of the most precious national assets, our law enforcement and our legal system.
Earlier in this process, it seemed the administration was concluding that any answer would do, whether it was rooted in the facts or not. Those days are behind us. Just any answer won't do anymore. We need the facts. We'll pursue the facts until we get the truth.
Just as respect for the United States as a leader in human rights has been diminished in the last six years, the current actions have served to undercut confidence in our United States attorneys.
And just as Mr. Gonzales cannot claim immunity for the policies and practices regarding torture that were developed under his watch while White House counsel, he cannot escape accountability for signing off on this plan to undercut effective federal prosecutors and to infect federal law enforcement with narrow political goals.
His actions have served to undermine public confidence in federal law enforcement, the rule of law. By getting to the truth, we could take a step toward restoring that trust.
LEAHY: Senator Specter?
SEN. ARLEN SPECTER, R-PA. RANKING MEMBER: Thank you very much, Mr. Chairman.
The purpose of this Senate oversight hearing is to determine this committee's judgment as to whether Attorney General Alberto Gonzales should continue in that capacity.
We are mindful of the difficulties and the achievements that Attorney General Gonzales had to surmount to become a Harvard Law graduate, become a Texas State Supreme Court justice, a White House counsel and now the chief law enforcement officer of the United States. A very distinguished record, indeed.
And we further appreciate your status as a role model as the first Hispanic attorney general, and well recall the historic occasion, January 4th of 2005, when you appeared at that table on your confirmation hearing.
As I see it, you come to this hearing with a heavy burden of proof to do three things: first, to reestablish your credibility; second, to justify the replacement of these United States attorneys; and third, to demonstrate that you can provide the leadership to the United States Department of Justice which has such a vital role in protecting our national interests and so many lives.
Notwithstanding demands for your resignation by Democrats and Republicans in the United States Senate and elsewhere, I have insisted both publicly and privately that you be given your so-called day in court to give your responses. You do so in the context of testimony from a number of people in the Department of Justice who have contradicted certain of your public statements.
You early said that you were not involved in any discussions, and then your subordinates testified to the contrary: that you were at meetings where discussions were undertaken about the replacement of these U.S. attorneys.
You then said that you did not see memoranda, and again your subordinates have testified under oath that you were at meetings where documents, memoranda, were distributed.
SPECTER: And then you modified your statement about the discussions to say that you were not involved in deliberations. And again, the testimony of three of your key subordinates -- your chief of staff, Kyle Sampson, the acting associate attorney general, Bill Mercer, and the director of the Executive Office of U.S. Attorneys, Michael Battle -- have said that you were involved in deliberations and have done so with some particularity.
So that this is your opportunity, Mr. Attorney General, to tackle that burden of proof -- the heavy burden of proof to re-establish your credibility here.
With respect to the removal of United States attorneys, there is no doubt that the president can remove U.S. attorneys for no reason at all. And President Clinton did just that in 1993, when in one fell swoop he removed 93 United States attorneys.
But there cannot be a removal for a bad reason; that is if, as suggestions have been made, that U.S. Attorney Lam in San Diego was replaced because she was hot on the trail of confederates of former Congressman Duke Cunningham, who is now serving eight years in jail. Or a U.S. attorney may not be replaced if, as the allegations are made -- and until we've heard from you, Mr. Attorney General, I'm going to regard them as allegations. Until we hear from you, until we give you an opportunity to respond.
But the allegations were made that U.S. Attorney Iglesias in New Mexico was removed because he would not initiate prosecutions which in his discretion felt were unwarranted.
Now, as you and I know, I have been candid with you in suggestions as to what you should do. I think that is the role of a senator, to be open to discuss the issues candidly.
SPECTER: And you called me on a Saturday and I wrote to you sometime ago outlining what I thought you had to address.
As far as I'm concerned, this is not a game of gotcha. This is a matter where we want the facts. We want the hard facts so we can make an evaluation.
And I suggested to you that you make a case-by-case analysis as to all of the U.S. attorneys who were asked to resign, and if you felt on or concluded on reexamination that some were asked to resign improperly, that you ought to say so and even ought to consider reinstatement.
If someone is improperly removed, there are judicial remedies -- not in case, but in other analogous situations where courts will order reinstatement. Well, pretty hard to unscramble the eggs but that is a possibility.
With respect to leadership, no one short of the secretary of defense has a more important role in our government in the administration of civil and criminal justice than does the attorney general of the United States heading the department.
In your effort to remove yourself or distance yourself as you have appeared to have done, denying discussions, denying deliberations, denying memoranda, you face, really, the horns of a dilemma.
SPECTER: And that is, if he were removed and actions were taken which were inappropriate that you were not really part of, although you have articulated your overall responsibility as CEO, but not responsible on the judgments, from the other horn of the dilemma of how you can provide the leadership if you are detached on such really important matters.
It's a very, very tough dilemma, I think, that you face. And I believe you have come a good distance from the day you said that this was an overblown personnel matter in the USA Today article.
So this is as important a hearing as I can recall, short of the confirmation of Supreme Court justices; more important than your confirmation hearing. In a sense, it is a reconfirmation hearing. And I await your testimony.
Thank you, Mr. Chairman.
LEAHY: Thank you, Senator Specter.
What I'm going to do -- the chairman and ranking member of the appropriate subcommittee -- even though we're holding this under the full committee, the chairman and ranking members are Senator Schumer and Senator Sessions. I'm going to grant two minutes each to them, first Senator Schumer and then Senator Sessions, and then we'll go, Attorney General, to your testimony.
SEN. CHARLES E. SCHUMER, D-N.Y.: Well, thank you, Mr. Chairman. I join you in mourning the losses at Virginia Tech.
It cannot make anyone happy to have to question the credibility and competence of the nation's chief law enforcement officer.
SCHUMER: This is, however, a predicament strictly of the attorney general's own making, so I'd like to make three points.
First, we must get sincere and direct answers from the attorney general. We need clear responses, not careful evasions.
The attorney general, as we have all read, has been preparing long and hard for this hearing. So I hope and expect we'll be treated to a minimum of "I don't recall." I hope we won't get meandering answers that take up time but don't answer the question.
After all, this time if the attorney general cannot answer a straightforward, factual question from a senator about recent events, how can he possibly run the department?
Second, the burden of proof is clearly shifted. Of course, we are not going to find an e-mail that says, "Fire Carol Lam because she's prosecuting Duke Cunningham." But when there is no cogent explanation for most of the firings, when there is virtually no documentation to support those decisions, when there are mounting contradictions, when there are constant coincidences, when those firings occur against a backdrop of mishaps, missteps and misstatements by the highest officials at the Justice Department, what are we to think?
Every lawyer knows that cases are often made without finding the so-called murder weapon but are often made on circumstantial evidence. Here, the circumstantial evidence is substantial and growing and the burden is on the attorney general to refute it. If the attorney general cannot give clear and consistent reasons for each firing, then that burden will not have been met.
And third, and finally, I hope we won't hear the attorney general continually repeat like a mantra, as if it's some sort of defense against all inquiry, that the president can dismiss a U.S. attorney for almost any reason.
If the president suddenly ordered the firing of every U.S. attorney with an I.Q. over 120 because he didn't want smart people in the job, he's certainly legally permitted to do so. But a Congress that did not challenge such a silly plan would not be doing its job. And an attorney general who unquestionably -- who would unquestioningly execute it shouldn't keep his job.
SCHUMER: The issue is not whether the administration has the legal power to fire U.S. attorneys. It's about how that power has been exercised. Was it used for proper, prudent reasons or improper political ones? Was it used wisely or crassly? Was it used with the best of intentions or the worst?
We don't know all the facts yet. I hope we learn more today.
LEAHY: Thank you.
And, Senator Sessions?
SEN. JEFF SESSIONS, R-ALA.: Thank you, Mr. Chairman.
This is an important hearing and there is politics here but there's some very serious problems, Mr. Attorney General.
Having served as United States attorney for 12 years myself and knowing so many of those people that have served, they're out there by themselves having to make tough decisions. And it's important that they feel like the Department of Justice will back them up when they're right.
But they are accountable. They are appointed by the president and can be removed by the president. And there are a lot of important issues that the United States attorneys must be engaged in, such as illegal gun use, corruption, terrorism, immigration. They have to be held to account for the performance of those duties.
It's a tough job for United States attorneys, and I would say for the attorney general it's a very tough job. Ask John Ashcroft. Ask Janet Reno. It's not easy, the job that you have. It's a great challenge and a very great responsibility.
The integrity of the office you hold must be above reproach. I know you feel that way. You have said that to me more than once and said so publicly. But we've got some questions, and those questions have to be answered.
It does appear that your statements given at the Department of Justice at a press conference incorrectly minimized your involvement in this matter. I believe that you should have been more involved in the entire process. I believe, frankly, you should have said no. I do not believe this was a necessary process, particularly the way it was conducted.
I do remember your chief of staff toward the end of the hearing said this: "In hindsight, I wish that the department had not gone down this road and I regret my role in it."
I think it has hurt the department. It has raised questions that I wish had not been raised. Because when United States attorneys go into court, they have to appear before juries. And those juries have to believe that they're there because of merit of the case and that they have personal integrity.
So this matter's taken on a bit of life of its own, it seems. The ability to -- your ability to lead the Department of Justice is in question. I wish that weren't not so, but I think it certainly is.
SESSIONS: So be alert and honest and direct with this committee. Give it your best shot. You are a good person, and I think that will show through.
Thank you, Mr. Chairman.
LEAHY: Mr. Attorney General, please stand, raise your right hand.
Do you solemnly swear that the testimony you will give before this committee will be the whole truth, so help you God?
And I understand that -- your full statement will be made part of the record and I understand you have a shortened version you wish to -- so please go ahead.
ATTORNEY GENERAL ALBERTO R. GONZALES: Good morning, Chairman Leahy, Ranking Member Specter, members of the committee.
I, too, want to begin by recognizing those who died and injured on Monday. The tragic events in Blacksburg have shocked and saddened Americans who have come together this week to grieve, to remember, and to try to make sense out of this senseless act of violence.
I offer my prayers and condolences to the victims, their families and friends.
I also want to recognize the law enforcement personnel who bravely responded to the scene. As I watched Monday's events unfold, I was filled with pride, watching men and women risk their lives and care for victims in the line of duty.
Moments like these underscore my commitment to the mission of law enforcement and the honor that I have to serve as the nation's chief law enforcement officer.
I have provided the committee with a lengthy written statement detailing some of the department's work under my leadership to protect our nation, our children and our civil rights.
GONZALES: I am proud of our past accomplishments in these and other areas and I do look forward to future achievements.
I am here, however, to answer your questions, not to repeat what I provided in writing. But before we begin, I want to make three brief points about the resignations of the eight United States' attorneys, a topic that I know is foremost in your minds.
First, those eight attorneys deserved better. They deserved better from me and from the Department of Justice which they served selflessly for many years. Each is a fine lawyer and dedicated professional. I regret how they were treated, and I apologize to them and to their families for allowing this matter to become an unfortunate and undignified public spectacle. I accept full responsibility for this.
Second, I want to address allegations that I have failed to tell the truth about my involvement in these resignations. These attacks on my integrity have been very painful to me.
Now, to be sure, I have been -- I should have been more precise when discussing this matter. I understand why some of my statements generated confusion, and I have subsequently tried to clarify my words. My misstatements were my mistakes, no one else's, and I accept complete and full responsibility here, as well.
That said, I've always sought the truth in every aspect of my professional and personal life. This matter has been no exception.
I never sought to mislead or deceive the Congress or the American people. To the contrary, I have been extremely forthcoming with information.
As a result, this committee has thousands of pages of internal Justice Department communications and hours of interviews with department officials.
GONZALES: And I'm here today to do my part to ensure that all facts about this matter are brought to light.
These are not the actions of someone with something to hide.
Finally, let me be clear about this: While the process that led to the resignations was flawed, I firmly believe that nothing improper occurred. U.S. attorneys serve at the pleasure of the president. There is nothing improper in making a change for poor management, policy differences or questionable judgment, or simply to have another qualified individual serve. I think we agree on that.
I think we also agree on what would be improper. It would be improper to remove a U.S. attorney to interfere with or influence a particular prosecution for partisan political gain. I did not do that. I would never do that.
Nor do I believe that anyone else in the department advocated the removal of a U.S. attorney for such a purpose.
Recognizing my limited involvement in the process, a mistake I freely acknowledge, I have soberly questioned my prior decisions. I have reviewed the documents available to the Congress. And I have asked the deputy attorney general and others in the department if I should reconsider.
What I have concluded is that although the process was nowhere near as rigorous or structured as it should have been, and while reasonable people might decide things differently, my decision to ask for the resignations of these U.S. attorneys is justified and should stand.
I've learned important lessons from this experience which will guide me in my important responsibilities. I believe that Americans focus less on whether someone makes a mistake than on what he or she does to set things right.
GONZALES: In recent weeks I have met or spoken with all of our U.S. attorneys to hear their concerns.
These discussions have been open and frank. Good ideas were generated and are being implemented. I look forward to working with these men and women to pursue the great goals of our department.
I also look forward to continuing to work with the department's career professionals -- investigators, analysts, prosecutors, lawyers and administrative staff -- who perform nearly all the department's work and deserve the credit for its accomplishments.
I want to continue working with this committee as well. We have made great strides in protecting our country from terrorism, defending our neighborhoods against the scourge of gangs and drugs, shielding our children from predators and preserving the integrity of our public institutions. And recent events must not deter us from our mission.
I'm ready to answer your questions. I want you to be satisfied, to be fully reassured that nothing improper was done. More importantly, I want the American people to be reassured of the same.
LEAHY: Thank you, Attorney General.
Your former chief of staff testified under oath about a conversation in which Karl Rove told you about complaints that former New Mexico U.S. Attorney David Iglesias and two other U.S. attorneys were not being aggressive enough against so-called voter fraud.
When did such a conversation between you and Karl Rove take place?
GONZALES: What I recall, Senator, is that there was a conversation where Mr. Rove mentioned to me concerns that he had heard about pursuing voter fraud, election fraud in three jurisdictions: New Mexico, Milwaukee, Wisconsin, and Philadelphia, Pennsylvania, as I recall.
LEAHY: How many -- going back to New Mexico, how many conversations about New Mexico with Mr. Rove?
GONZALES: Senator, I can only recall of that one conversation.
LEAHY: Do you recall when that was?
GONZALES: Senator, my recollection was that it was in the fall of 2006?
LEAHY: Do you remember where?
GONZALES: No, sir, I don't remember where that conversation took place.
GONZALES: And, Senator, I don't recall either whether or not it was a phone conversation or was an in-person conversation, but I do have a recollection of that conversation.
LEAHY: So when was David Iglesias added to the list of U.S. attorneys to be replaced?
GONZALES: Of course, Senator, when I accepted the recommendation, I did not know when Mr. Iglesias was, in fact, added to the recommended list. As I've gone back and reviewed the record, it appears that Mr. Iglesias was added sometime between, I believe, October 17th and December 15th.
But I was not responsible for compiling that list.
LEAHY: He was added either before or after the elections, but you don't know when? Is that what you're saying.
GONZALES: Senator, I just responded as to when I believe -- as I've gone back and looked at the documents, it appears he was added sometime between October 17th and November 15th.
LEAHY: I understand. But you don't know when?
GONZALES: Senator, I have no recollection of knowing when that occurred.
LEAHY: Do you know why he was added?
GONZALES: Again, Senator, I was not responsible for compiling that information. The recommendation was made to me.
I was not surprised that Mr. Iglesias was recommended to me, because I had heard about concerns about the performance of Mr. Iglesias.
GONZALES: Certainly, I'd heard concerns from Senator Domenici.
LEAHY: And who else?
GONZALES: Well, Senator, certainly...
LEAHY: And Karl Rove?
GONZALES: What I know -- I heard concerns raised by Mr. Rove. And what I know today, while I don't recall the specific mention of this conversation, I recall the meeting.
It was that there was a meeting in October, with the president, in which the president, as I understand it, relayed to me similar concerns about pursuing election fraud...
LEAHY: When was that?
GONZALES: ... in three jurisdictions.
Senator, I've gone back and looked at my schedule. And it appears that that meeting occurred on October 11th.
LEAHY: Now, Mr. Iglesias has been described by your former chief of staff as a "diverse up-and-comer."
He was reportedly offered the job as the head of the Executive Office of the United States Attorneys for you here in Washington.
He was selected by the Department of Justice to instruct other U.S. attorneys on investigating and prosecuting voter fraud.
This past weekend, the Albuquerque Journal reported that when Senator Domenici told -- this is a quote -- "When Senator Domenici told Gonzales he wanted Iglesias out in the spring of 2006," you refused -- I'm quoting now from the article -- and told Senator Domenici you'd fire Iglesias only on orders from the president.
In your testimony that you provide, you characterize Mr. Iglesias as "a fine lawyer; dedicated, professional; gave many years of service to the department."
But in your March 7th column in USA Today, you wrote that he was asked to leave because he simply lost your confidence.
When and why did he lose your confidence?
GONZALES: Senator, Mr. Iglesias, like these other United States attorneys -- I recognize their service; I recognize their courage to serve the American people.
Mr. Iglesias lost the confidence of Senator Domenici, as I recall, in the fall of 2005, when he called me and said something to the effect that Mr. Iglesias was in over his head and that he was concerned that Mr. Iglesias did not have the appropriate personnel focused on cases like public corruption cases.
GONZALES: He didn't mention specific cases, he simply said "public corruption cases."
I don't recall Mr. -- Senator Domenici ever requesting that Mr. Iglesias be removed. He simply complained about the -- whether or not Mr. Iglesias was capable of continuing in that position.
LEAHY: With all due respect, Mr. Attorney General, my question wasn't when he may have lost confidence of Senator Domenici. My question is when and why did he lose your confidence?
GONZALES: Senator, what I -- what I instructed Mr. Sampson to do was consult with people in the department...
LEAHY: When and why did he lose your confidence?
GONZALES: Based upon the recommendation -- what I understood to be the consensus recommendation of the senior leadership in the department that in fact these individuals -- there were issues and concerns about the performance of these individuals, that's when I made the decision to accept the recommendation that, in fact, it would be appropriate to make a change in this particular district.
Now, the fact that Mr. Iglesias appeared on the list, again, was not surprising to me, because I already had heard concerns about Mr. Iglesias' performance.
LEAHY: In a March 21 op-ed in the New York Times, Mr. Iglesias addressed the reasons he believes he was fired. And let me just quote from it -- and these are his words: "As this story has unfolded these last few weeks, much has been made of my decision to not prosecute alleged voter fraud in New Mexico.
"Without the benefit of reviewing evidence gleaned from FBI investigative reports, party officials in my state have said I should have begun a prosecution.
"What the critics who don't have any experience as prosecutors have asserted is reprehensible, namely that I should have proceeded without having proof beyond a reasonable doubt.
"The public has a right to believe that prosecution decisions are made on legal, non-political grounds."
Would you agree with that?
GONZALES: I do agree with that.
LEAHY: Justice Department officials, including your principal associate deputy, Mr. Moschella, said that one of the reasons Mr. Iglesias was replaced because, in their words, he was an absentee landlord.
But I understand he continues his service as an officer in the Naval Reserve, and that fulfilling his Naval Reserve responsibilities take him out of the office approximately 40 days a year.
You are aware, I assume, that the Uniformed Services Employment and Reemployment Rights Act and other laws prohibit employers from denying an individual employment benefits because of their military service.
GONZALES: I am aware of that. I support it strongly. We enforce that act.
LEAHY: When, how and by whom did this absentee landlord rationale for replacing Mr. Iglesias arise?
GONZALES: Senator, that rationale was not in my mind, as I recall, when I accepted the recommendation.
We have, of course, several other United States attorneys who perform military service. I applaud it and I support it. It would not be a reason that I would ask a United States attorney to leave.
LEAHY: Let me ask you about absentee landlords. You have a -- Mr. Mercer is currently serving as your acting associate attorney general, even though he's U.S. attorney in Montana.
The chief judge out there has been very, very critical of the way that office is run, the fact that he's gone.
How many days a year does Mr. Mercer stay here serving as your acting associate attorney general, rather than the job he was confirmed for?
GONZALES: Senator, that's a question -- an answer that I have to get back to you.
But I think every United States attorney...
LEAHY: Well, do you have any general idea? I mean, is it like a week a year? Is it several months a year?
GONZALES: Senator, let me get back with you with the most accurate information.
LEAHY: He's your associate attorney general. I mean, you would certainly know whether it's a week a year or several months a year, wouldn't you?
GONZALES: Senator, I'd like to give you that information.
But the main point I want the American people to understand is that every case is different with respect to serving in dual-hat capacities.
LEAHY: Well, what is...
GONZALES: I've heard no one complain about the fact that Pat Fitzgerald was prosecuting that case...
LEAHY: I am not talking about Mr. Fitzgerald.
GONZALES: ... while he was still serving as the United States attorney...
LEAHY: I'm talking about...
GONZALES: ... because every case is different.
LEAHY: I'm talking about an office that the judge himself says is in disarray in Montana, and Mr. Mercer has testified that he's in Montana just three days a month -- three days a month -- while he's acting as your associate attorney general.
I just mentioned that because if we're talking about absentee landlords, sometimes the absentee landlords are created by your own office.
GONZALES: Can I respond to that?
LEAHY: Certainly, and then it's Mr. Specter's time.
GONZALES: In my travels, talking to the United States attorneys, I raised this issue, whether or not dual-hatting continues to be a good idea to a person. I don't recall any dissent. They all thought it was good. It was good for the U.S. attorney to get transparency into the Department of Justice. They also believed it was important for them to be able to call someone they knew working the Department of Justice.
Every case is different. It may depend upon how strong the first assistant is. It may depend upon the strength of the other chief in that office.
So every case is going to be different, Senator, and so the fact that someone can do it, like Mr. Fitzgerald, depends on a lot of different circumstances.
LEAHY: In my state, I'd be pretty upset if the U.S. attorney was there only three days a month.
GONZALES: And, Senator, your views would be very important. I'd be interested in knowing what those views are.
SPECTER: Mr. Attorney General, in my opening statement, I raised the issue as to whether you had been candid -- more bluntly truthful -- in your statements about not being involved in, quote, "discussions," not being involved in, quote, "deliberations," not seeing memoranda.
And then, in your opening statement, you said two things which appear to me to be carrying forward this same pattern of not being candid.
SPECTER: You said that you were only involved to a limited extent in the process. And then you say you should have been more precise.
Well, it's not exactly a matter of precision to say that you discussed the issues, were involved in deliberations and decisions. That is just a very basic, fundamental fact.
Now let me review some of the record with you. And we don't have much time, and it's necessary to go through it at a rather summary basis. But I know you're familiar with this record because I know you've been preparing for this hearing.
GONZALES: I prepare for every hearing, Senator.
SPECTER: Do you prepare for all your press conferences? Were you prepared for the press conference where you said there weren't any discussions involving you?
GONZALES: Senator, I've already said that I misspoke. It was my mistake.
SPECTER: I'm asking you, were you prepared? You interjected that you're always prepared. Were you prepared for that press conference?
GONZALES: Senator, I didn't say that I was always prepared. I said I prepared for every hearing.
SPECTER: Well, and I'm asking you, do you prepare for your press conferences?
GONZALES: Senator, we do take time to try to prepare for the press conference.
SPECTER: And were you prepared when you said you weren't involved in any deliberations?
GONZALES: Senator, I've already conceded that I misspoke at that press conference. There was nothing intentional.
And the truth of the matter is, Senator, I...
SPECTER: Let's -- let's move on. I don't think you're going to win a debate about your preparation, frankly. But let's -- let's get to the facts.
I'd like you to win this debate, Attorney General Gonzales.
GONZALES: I appreciate that.
SPECTER: I'd like you to win this debate.
GONZALES: I apologize...
SPECTER: But you're going to have to win it.
This is what some of the record shows. And this is according to sworn testimony from your chief of staff, Kyle Sampson, from the acting associate attorney general, Bill Mercer, and by the executive director of the Office of U.S. Attorneys, Michael Battle.
You had a first conversation with Sampson in December of 2004 about replacing U.S. attorneys. Then there were intervening events, but I'll come to some of the highlights.
SPECTER: On June 1st, 2006, in an e-mail, Sampson described your statements on a plan addressing U.S. Attorney Lam's problems, with the option of removing her. It certainly sounds like more than discussions, deliberations and judgments.
I'm going to go on because I want to feed you -- I want to give you the whole picture here.
Then, on June 4th or 5th, according to sworn testimony, Mercer discussed with you Lam's performance.
Then on June 13th of 2006, Sampson, in sworn testimony, said that you, quote, "almost certainly consulted on the removal of Bud Cummings."
Then, in mid-October -- you've now identified a date of October 11th -- you went to the White House to talk about your vote fraud concerns, with Mr. Rove, with the president personally, came back, and, according to Sampson's sworn testimony, said, "Look into the vote prosecution issue, including those in New Mexico."
That's what Sampson says, under sworn testimony.
Then, on November 27th of 2006, you attended a meeting on the removal plans, attended by Sampson, Goodling, McNulty, Battle, a whole host of people.
SPECTER: Now, I've just given you a part of the picture as to what these three deputies of yours -- high-ranking deputies have said that you did, on talking about removal, talking about replacements.
Now, do you think it is a fair, honest characterization to say that you had only a, quote, "limited involvement in the process," close quote?
GONZALES: Senator, I don't want to quarrel with you.
SPECTER: I don't want you to either. I just want you to answer the question.
GONZALES: Sir, I guess it's -- I had knowledge that there was a process going on. I don't know all the...
SPECTER: You didn't understand there was a process going on?
GONZALES: No, I had -- sir, I had knowledge that there was a process going on.
SPECTER: Well, were you involved in it?
GONZALES: Senator, with respect to Carol Lam, for example...
SPECTER: Were you involved in the process?
GONZALES: I was involved in the process, yes, sir.
SPECTER: Were you involved to a limited extent, only?
GONZALES: Yes, sir.
SPECTER: How much more could you have been involved than to be concerned about the replacement of Cummings and to evaluate Lam and to be involved in Iglesias? Now, we haven't gone over the others, but is that limited in your professional judgment?
GONZALES: Based on what I thought that I understood was going on, yes, Senator.
I thought Mr. Sampson -- I directed Mr. Sampson to consult with senior officials in the department who had information about the performance of United States attorneys. I believed that that was ongoing and that he would bring back to me a consensus recommendation.
The discussion about Ms. Lam never, in my mind, was about this review process. And I indicated so in my conversation with Pete Williams, I believe on March 26th, is that we were doing this process.
Of course there were other discussions outside of the review process about the performance of United States attorneys.
GONZALES: I can't simply stop doing my supervisory responsibilities over United States attorneys because this review process is going.
SPECTER: Did you tell Mercer to take a look at Lam's record with a view to having her removed as a U.S. attorney?
GONZALES: Senator, what I...
SPECTER: Or is he wrong?
GONZALES: I don't recall -- here's what -- Senator, what I recall is, of course, we had received -- the department had received numerous complaints about Carol Lam's performance with respect to gun prosecutions and immigration prosecutions. I directed that we take a look at those numbers because I wanted to know. And I don't recall whether it was Mr. Mercer who presented me the numbers, but I recall being very concerned.
SPECTER: But you were involved in evaluating U.S. Attorney Lam's record, weren't you?
GONZALES: Senator, I did not view that, and I -- this was my -- I did not view that as part of Mr. Sampson's project of trying to analyze and understand the performance of United States attorneys for possible removal.
SPECTER: Never mind Mr. Sampson's project. Weren't you involved in the evaluation of U.S. Attorney Lam?
GONZALES: Senator, of course, I was involved in trying to understand...
SPECTER: Weren't you involved in the decision on the removal of Arkansas U.S. Attorney Bud Cummins, as Kyle Sampson testified?
GONZALES: Senator, I have no recollection about that, but I presume that that is true.
SPECTER: Weren't you involved in the decisions with respect to U.S. Attorney Iglesias in New Mexico, as you've already testified in response to the chairman's questions?
GONZALES: Senator, I do recall having the conversation with Mr. Rove. I now understand that there was a conversation between myself and the president. And, at some point, Mr. Sampson brought me what I understood to be the consensus recommendation of the senior leadership that we ought to make a change in that district.
SPECTER: OK, now we've got to evaluate -- this is the final statement before I yield -- as to whether the limited number of circumstances that I recited -- and it's only a limited number; there are many, many more -- whether you are being candid in saying that you were involved only to a limited -- you only had a, quote, "limited involvement in the process."
As to being candid and also as to having sound judgment, if you consider that limited.
And as we recite these, we have to evaluate whether you are really being forthright in saying that you, quote, "should have been more precise," close quote, when the reality is that your characterization of your participation is just significantly, if not totally, at variance with the facts.
GONZALES: Senator, you're talking about a series of events that occurred over approximately 700 days. I probably had thousands of conversations during that time.
And so putting it in context, Senator, I would say that my involvement was limited. I think that is an accurate statement. It was limited involvement.
And with respect to certain communications such as the communication with the president, such as the discussion about Carol Lam, I did not view it at the time as part of this review process. I simply considered those as doing part of my job.
We'd heard complaints about the performance of Ms. Lam. I directed the department to try to ascertain whether or not those complaints were legitimate. And if not, we ought to look at perhaps doing something about it.
SPECTER: The chairman says I can ask one more question.
You're saying it's not part of the process, you thought it part of your job. Is that what you're saying? Because if you are I don't understand it.
GONZALES: Senator, I didn't consider it as part of this project that Mr. Sampson was working on.
Simply because we had this process ongoing by Mr. Sampson doesn't mean that I quit doing my job as attorney general of supervising the work of the United States attorneys. And that's what I attempted to do.
SPECTER: But it was intimately connected with her qualifications to stay on.
GONZALES: Senator, of course in hindsight, I look back now that, of course, that that may have affected the recommendations made to me, yes.
But, Senator, when I focused on those complaints, I wasn't thinking about this process to remove U.S. attorneys. What I was focusing on a complaint that I received about her performance. That's what I was focused on.
I wasn't focused on the review process itself. I wasn't focused on whether or not her name would go on this list. I was focused on making sure she was doing her job. That's what I was focused on.
LEAHY: So that senators can focus on where they're going to be, the order on the Democratic side will be -- going back and forth, of course -- Senators Kennedy, Kohl, Feinstein, Feingold, Schumer, Durbin, Cardin, Whitehouse and Biden.
LEAHY: And the list I have from the Republican side, it would be Senators Grassley, Cornyn, Brownback, Hatch, Sessions, Graham, Coburn and Kyl. And following what I said I'd do earlier, I take that list from Senator Specter.
So, Senator Kennedy?
SEN. EDWARD M. KENNEDY, D-MASS.: Thank you, thank you, Mr. Chairman.
And we appreciate, General, your sentiments about this horrific tragedy. I think all of us here on the committee, all Americans, know that that is certainly something that's hanging over all of our hearts at this very important and sad time.
Just to come back to some themes that have been talked about a little bit here, earlier, during the course of this hearing. In your opening statement you indicated, as Senator Specter mentioned, that you had a limited involvement and that the process was not vigorous. The question is -- and then you say, "My decision is justified and should stand."
Well, since you apparently knew very little about the performance of the replaced U.S. attorneys, how can you testify that the judgment ought to stand? What's the basis for that?
GONZALES: I think that's a fair question, Senator.
Obviously, when this began, I did not -- I was not the person in the department who had the most information about the performance and qualification of U.S. attorneys.
GONZALES: There were many other people, particularly the deputy attorney general.
And I charged Mr. Sampson, my chief of staff -- then my deputy chief of staff -- to engage in a review. I think it was perfectly appropriate to see where we could make changes to benefit the performance of the Department of Justice.
And what I understood and what I expected is he would talk to people like the deputy attorney general to ascertain how U.S. attorneys were performing.
And, of course, when the recommendation was presented to me, I understood it recommended the consensus view of the senior leadership of the department.
KENNEDY: Well, I'm going to ask you, how can you know that none of them were removed for improper reasons? How can you give us those assurances, since you had a limited involvement, the process wasn't vigorous, and you left it, basically, to somebody else?
GONZALES: Well, Senator, since then, of course, I have gone back and looked at the documents made available to Congress.
I also had a conversation with the deputy...
KENNEDY: This is since then?
GONZALES: Yes, sir.
KENNEDY: But when you made the judgment and decision -- when you made the judgment and decision, you didn't know, did you?
GONZALES: On December 7th -- I know the basis on which I made the decision, no reasons that would be characterized as improper. I think I was justified...
KENNEDY: But you didn't know whether those decisions were proper or improper, since you've said you had limited involvement, the progress (sic) was not vigorous, and you basically gave the assignment to Mr. Sampson...
KENNEDY: ... as he testified and you approved?
GONZALES: I think that I'm justified in relying upon what I understood to be the recommendation -- the consensus recommendation of the senior leadership.
And I think, as we look through the documents; as you glean through the documents, nothing improper occurred here.
You have more information about the testimony of witnesses than I do. I'm not aware that anyone based their recommendation on improper reasons. But just to be sure, I've asked the Office of Professional Responsibility to work with the Office of the Inspector General at the Department of Justice, to ensure that nothing improper happened here.
KENNEDY: Well, getting back to the time that you made the judgment and decision, you didn't really know the actual weapons when you approved the removal, did you...
KENNEDY: ... at the time?
GONZALES: Senator, I have in my mind a recollection as to knowing as to some of these United States attorneys. There are two that I do not recall knowing in my mind what I understood to be the reasons for the removal.
But as to the others, I recall knowing the reasons why independently I was not surprised to see their names recommended to me because through my performance as attorney general I had become aware of specific related to performance.
KENNEDY: Well, we're reminded that the documents don't show any clear rationale for the firings.
But I want to come back to how you can say in your opening statement that the Department of Justice makes decisions based on evidence. That certainly was not the case with regards to your judgment and decisions with regards to these firings.
As I understand, you said you had limited involvement, the process was not vigorous. In response to Senator Leahy, you said you weren't responsible for compiling information.
How can you give a blanket statement that the Department of Justice makes decisions based on evidence when we don't have the rationale even for the firings of these -- of the individuals at the time that they were fired?
GONZALES: Senator, that statement related to our decision with respect to prosecutions. But with respect to what happened here, I believe that I had a good process when this began.
KENNEDY: Let me ask about the process, if I could, please.
The Department of Justice has a process. It's called the EARS process. It's been in effectively for the evaluation of U.S. attorneys. It's been there for years and years. Am I correct? That's the Department of Justice periodic comprehensive evaluation, U.S. attorneys. It's called E-A-R-S reports, for evaluation and report -- staff reports.
GONZALES: Sir, that evaluation is an evaluation that occurs of United States attorney offices. It occurs every three or five years. It is a peer review, Senator. It is a review conducted by assistant United States attorneys.
KENNEDY: I'm asking you, did you have an opportunity -- since it does review the performance of U.S. attorneys, did you have an opportunity to review that document which is the standard document for the Justice Department in the evaluation of U.S. attorneys?
GONZALES: Senator, I did not review the document but, however, it would be just one of many factors, I think...
KENNEDY: All right.
GONZALES: ... should be appropriately considered in evaluating the performance of a United States attorney.
KENNEDY: Let me ask you some others.
GONZALES: Just one of many factors.
KENNEDY: Did you speak personally with any of the -- have you spoken with any of the replaced U.S. attorneys about their performance? Have you, at this time, talked to any of the U.S. attorneys that were replaced?
GONZALES: Who were replaced?
GONZALES: I have spoken with Mr. Bogden.
KENNEDY: He's the only one?
GONZALES: He is the only one, yes.
KENNEDY: Did you speak with any of the assistant U.S. attorneys in the affected offices of the U.S. attorneys? Did you talk to any of the assistant U.S. attorneys, those that are serving with the U.S. attorneys that have been replaced? Did you speak with any of them?
GONZALES: I certainly did it with respect to San Diego. There may be assistant United States attorneys who may be serving as the acting U.S. attorney that I may have met with in connection with my visit to visit with the United States attorneys sometime in the weeks of March 12th and thereafter.
KENNEDY: So you may have met with someone that was in one of the different offices?
GONZALES: I believe that I probably met with everyone who was serving in the affected offices, who was serving as -- in the acting U.S. attorney capacity. And certainly with respect to San Diego, I did visit the San Diego office and I spoke to the office.
KENNEDY: This was before the firings?
GONZALES: Oh no, sir. This is well after the firings.
KENNEDY: Did you perform any systematic review of the effect of the ongoing prosecutions by removing the U.S. attorneys? What would be the impact of ongoing prosecutions that those U.S. attorneys were involved in, did you do an evaluation of that?
GONZALES: Senator, I think it's a good question.
I think it's important for the American people to understand that prosecutions are done primarily by assistant United States attorney. Obviously, U.S. attorneys are important; they provide leadership, they establish morale. But this institution is build to withstand change and departures in leadership positions.
And so if we have information about a particularly important public corruption case, that would be something we would consider. But if we didn't have information about a public corruption case and we were contemplating changes, would it be wise to reach into the division and get information about that case? I don't believe that would be a good idea.
KENNEDY: Well, my time is just going to be just about wrapped up. Did you speak with others in the department of the performance of any of these U.S. -- individually, did you -- did the attorney general -- did you speak to anyone else in the Department of Justice about any of these U.S. attorneys, about their performance, prior to the time that they were fired, other than the Mr. Sampson?
GONZALES: Yes, sir.
GONZALES: Senator, I don't recall in connection with this review process Mr. Sampson was engaged in. But obviously issues came up with respect to Ms. Lam and her performance.
And I recall a meeting at the department. I don't recall everyone who was there. But I do recall a discussion about the numbers.
And again, Ms. Lam is a wonderful prosecutor, and I acknowledge her service. But I had genuine concerns about her efforts in pursuing gun prosecutions and particularly her effort with respect to immigration prosecution. This is a very important border district. And given the current debate about immigration reform, I felt that we should do better -- much better -- in this discussion.
And yes, there was some discussion with others about Ms. Lam.
KENNEDY: My time is up.
GONZALES: There may have been other discussions. I don't want to leave the impression those were the only discussions.
LEAHY: Thank you.
I'm advised that Senator Grassley has stepped out for -- has gone to a funeral.
And, Senator Brownback, on the list I have from Senator Specter, you're next.
SEN. SAM BROWNBACK, R-KAN.: Good. Thank you very much Mr. Chairman.
Welcome, Attorney General.
I'd like to get just a series of facts and the factual information out on the table on why this list of U.S. attorneys out of the 93 were terminated.
You've talked already some about David Iglesias and Carol Lam. You just addressed some of the reasons there.
And I recognize, as you state, that these are people that serve at the will and at the pleasure of the president. So you can terminate the for cause, without cause, whatever there might be.
But it appears you've come today prepared to discuss the reasons for the termination of these various U.S. attorneys. And I think it's important that we find out what those reasons are, given the allegation that a number of them were fired for inappropriate reasons.
So I want to go -- just go down the list with you, if I could.
Daniel Bogden of Nevada: Why was he terminated?
GONZALES: Senator, this is probably that one that to me, in hindsight, was the closest call.
I do not recall what I knew about Mr. Bogden on December 7th.
GONZALES: That's not to say that I wasn't given a reason; I just don't recall the reason. I didn't have an independent basis or recollection of knowing about Mr. Bogden's performance.
Since then, going back and looking at the documents, it appears that there was concerns about the level of energy, generally, in a fast-growing district, concerns about his commitment to pursuing obscenity -- which is important for the department; it is a law, we have an obligation to pursue it -- and just generally getting a sense of new energy in that office.
Now, in hindsight -- and I had a discussion with the deputy attorney general on the evening of Mr. Sampson's testimony, because I went to the deputy attorney general and I asked him, "OK, do we stand behind these decisions?"
And if you look at some of the documents, you can see that the deputy attorney general agonized over this one. And I think that's good. That's a good thing that we're thinking about what is the effect of making this kind of decision on people.
But at the end of the day, we felt it was the right decision.
Now, I regret that we didn't have the face-to-face meeting with Mr. Bogden beforehand and let him know.
And one of the things I've learned is that the department does not have -- has not had -- a good enough mechanism, in my judgment, to communicate with United States attorneys. There should be at least one face-to-face meeting at least with the U.S. attorney and with the deputy attorney general or the attorney general, so that if we are aware of concerns or we have concerns, we can convey those to the U.S. attorney.
And my regret with respect to Mr. Bogden is that, in fact, that meeting did not occur.
Nonetheless, in thinking about it, I believe it was still the right decision.
However, because of the fact that Mr. Bogden was not notified of the decision, I did talk to Mr. Bogden, as I indicated that I had. And what I wanted -- I offered up to Mr. Bogden was my help in securing employment and moving forward. If there was anything that I could do to help him, I wanted to do that, because -- because I struggled, as well, over this decision.
BROWNBACK: Paul Charlton in Arizona -- and if you could be as concise as possible, I'd appreciate that.
BROWNBACK: But I want to give you a chance to say why.
GONZALES: What I recall about Mr. Charlton, when the recommendation was made to me, as I recall knowing, of his poor judgment in pushing forward a recommendation on a death penalty case.
These kinds of decisions, of course, are very, very important. And I take them very seriously. But we have a process in place to carefully evaluate death penalty decisions of the department around the nation.
Obviously, the views of the local prosecutor are very, very important. I made a decision around, I believe, May 15th -- somewhere around there -- about a particular case. And he came back to me two months later, first going through the deputy attorney general's office and then back to me to have me reconsider the case.
And I'm not aware of any new facts here. But the deputy attorney general, the capital unit review committee had already made a recommendation to me about this particular case. I'd already made a decision on this particular case.
Since the decision on December 7th, I've also learned that he exercised poor judgment in the way he pushed forward a policy with respect to interviewing of targets. He wanted to record those interviews. He implemented that policy on his own, without consideration how it would affect other offices around the country, without consideration of how the other units like the FBI would feel about it.
In hindsight, there may be good reasons to pursue such a policy. But to implement it unilaterally on his own, in my judgment, was poor judgment. But that's something that I became more familiar about as I studied the documents.
BROWNBACK: Kevin Ryan, Northern District of California?
GONZALES: I was not surprised to see Mr. Ryan on the list.
And again, it's difficult for me to talk critically about these individuals who served our country. But you're asking me these questions.
I was aware as a general matter about poor management in that office. There was disruption; that Mr. Ryan had lost confidence in some career prosecutors. We had to send out a second EARS team out to that office to try to get an understanding of the sources of complaints that we were hearing.
So, in essence I would say it's a question of poor management.
BROWNBACK: Margaret Chiara, the Western District of Michigan?
GONZALES: Same issue. She's the other person, quite candidly, Senator, that I don't recall remembering -- I don't recall the reason why that I accepted the decision on December 7th.
But I've since learned that it was a question of similar kinds of issues: poor management issues, loss of confidence by career individuals.
GONZALES: We had to send someone out from main Justice to help mediate some kind of personnel dispute.
So it was a question simply of someone not having total control of the office.
BROWNBACK: H.E. "Bud" Cummins of Arkansas?
GONZALES: Mr. Cummins obviously is someone who was on a different track. And because he was on a different track and was asked to resign on June 14th and not December 7th, there's been some confusion about Mr. Cummins, was he part of the seven.
He was asked to resign on June 14th. I was -- I, myself, was confused, quite frankly, when I testified on January 18th. I had forgotten that, in fact, Mr. Cummins had been asked to resign on June 14th. And the reason I did is because Mr. Cummins left basically the same time as everyone else did.
Mr. Cummins was asked to resign because there was another well- qualified individual that the White House wanted to put in place there, that we supported, because he was well-qualified.
I also understand -- this is after the fact -- that, in fact, Mr. Cummins had expressed a desire -- and I don't want to put words in his mouth, because I think he may have testified maybe not -- he's testified about this -- but there was a newspaper article that appeared in the Arkansas Times indicating that because of having four kids -- having four kids to have to put through college, don't be shocked if he didn't serve the rest of his term.
So it was a question of seeing that there may be a vacancy coming up and having a well-qualified candidate to go in that office.
BROWNBACK: And John McKay, Western District of Washington?
GONZALES: Mr. McKay, when I accepted the recommendation on December 7th, generally I recall there being serious concerns about his judgment. That's what I recall when I accepted the recommendations.
And what I've since learned, of course, is that it related to an information-sharing project. It's not the way that he -- it's not that he pursued this. We expected him to. He was doing a good job -- he was doing a good job with respect to that.
It's the way he pursued it, in exercising poor judgment that involved some of his colleagues and a letter that he sent to the deputy attorney general, that his colleagues would not have signed on the letter if they had known that the deputy attorney general would not welcome the letter.
And he nonetheless asked them for their signature, and the deputy attorney general was surprised by the letter. It angered his colleagues, it angered the attorney -- the deputy attorney general, and it was an indication of poor judgment.
There was also an instance where he gave an interview in Washington where he basically told our state and local partners, "Don't come to me for any more help in terms of partnerships because I just don't have the resources to do it." That was inappropriate.
If, in fact, there are concerns about resources, he should come to us, try to let us help him with it. But to go out and give an interview and tell state and local partners, "Don't come to us because we can't help you anymore" -- and I'm paraphrasing here, I want to be fair to Mr. McKay -- that also demonstrated poor judgment.
BROWNBACK: Thank you for giving the information on each of these. And I am glad to hear the factual basis. I hope we can get into that more during this hearing.
And I hope during the process, as this wears on, too, there's a chance for you to reach out to some of these individuals, as well, as you've discussed, I guess, with Mr. Bogden in Nevada.
BROWNBACK: I think that's something that would be useful in this as well.
GONZALES: Thank you, Senator.
BROWNBACK: Thank you, Mr. Chairman.
LEAHY: Thank you.
I'm just curious on one thing. You said that, if I understand your answer to the question from Senator Brownback, on Cummins when you had testified on the 18th, you were -- and overlooked what had had happened on the 17th, did you ever send a follow-up to that testimony to clarify the issue?
GONZALES: Senator, I don't recall sending a follow-up, quite frankly.
I think if you look carefully, I don't know if there was a misstatement or mistake in my testimony but...
LEAHY: Because witnesses often do correct their testimony after. We always leave the record open so people can do that.
GONZALES: Senator, there was a specific question about Mr. Cummins, and I did not indicate that the reason for Mr. Cummins was because there was another well-qualified individual.
LEAHY: Senator Kohl?
SEN. HERB KOHL, D-WIS.: Thank you, Mr. Chairman.
Mr. Gonzales, there have been allegations that voter fraud and public corruption cases have been influenced by partisan political considerations in my state of Wisconsin. We've seen documents showing state party efforts -- Republican Party efforts to influence these type of prosecutions, routed through Karl Rove's office, directly into the office of your former chief of staff.
So, Mr. Attorney General, was Mr. Steve Biskupic, U.S. attorney in the Eastern District of Wisconsin, ever on the list of U.S. attorneys who were to be dismissed? It has been reported in the papers, both in The Washington Post and the Milwaukee Sentinel, that he was to fired, but the Justice Department has not made public any documents to show that.
GONZALES: Senator, I was never aware that Mr. Biskupic was on a list, obviously, when I made my decision. I'm aware that he may have appeared in a category which would indicate that there were concerns about his Mr. Biskupic.
GONZALES: But I think he's already issued a press release saying he never knew about that, and that it never would have influenced, and did not influence any decisions that he made with respect to cases in Wisconsin.
KOHL: I appreciate that. But the question is, was he on a list of U.S. attorneys who were being considered for dismissal?
GONZALES: Senator, I believe I testified that I believe that he was listed as someone, yes, that...
KOHL: So then my question is, why was he then taken off the list?
GONZALES: Senator, I -- again, this was a process that was ongoing that I did not have transparency into. I don't recall -- transparency into with respect to Mr. Biskupic.
I don't recall being aware of discussions about Mr. Biskupic.
Mr. Biskupic is a career prosecutor. He was appointed a United States attorney through a bipartisan panel.
With respect to the case, I think everyone is focused on, he made charging decisions after consulting with the then-Democratic state attorney general and consulting with the Democratic local prosecutor. And he believed it was the best -- his best judgment to charge that case, based on the evidence.
KOHL: I do appreciate that. But I'm trying to understand why he would have been on a list and then taken off a list. There must have been a reason for one and then the other.
GONZALES: Senator, with all due respect, the person -- there were other people that would have that information, that are witnesses -- fact witnesses. I have not consulted with them because I did not want to -- in any way, want to compromise the integrity of this investigation or the investigation at the department.
KOHL: That's fine. Could you get back to me, within a week, with respect to the question of why he was on the list and then why he was taken off the list?
GONZALES: With all due respect, Senator, the person who was responsible for compiling the list is Mr. Sampson. And he -- he is the person that would have the answer as to why -- he would be the best person as to why Mr. Biskupic was on a list or off a list, or anybody else that was on or off a list.
GONZALES: Senator, I'll go back and see if there's something that I can do. But I want to be very careful about talking to fact witnesses, and I'm not going to do that. I don't want to compromise the integrity of this investigation or the integrity of the department investigations.
KOHL: Mr. Attorney General, once appointed by the president, confirmed by the Senate as attorney general, we all understand that you're expected to cast aside all partisan politics and serve only the interest of justice and of the American people.
The Justice Department is expected to investigate and prosecute those who violate our laws completely blind to their partisan political affiliation.
Public confidence in your fidelity to these ideals of course is essential. Without the public's confidence in the impartial administration of justice, our entire judicial system is called into question.
Sadly, your actions have severely shaken the confidence of the American people in you and in your ability to fulfill your public trust. According to recent polls, as many as 67 percent of Americans believe that these eight U.S. attorneys were fired for political reasons, and over half of the American people believe that you should resign.
Moreover, press accounts have detailed low morale among U.S. attorneys across the country as a result of these events.
I'm sure we can agree that the integrity of the office of attorney general as an institution is more important than the self- preservation of any one person who sits in it.
Many Americans wonder, therefore, what is the rationale for you to remain as the attorney general, given the low morale, the history of mismanagement, the apparent lack of independence from the White House and, most importantly, the taint of politics trumping justice in your tenure.
Would you explain to the American people why it is so important that you should remain in this office?
GONZALES: Let me first direct the question about taint of politics. And let me just start with an example, Senator.
Six weeks before the election, this department took a plea from Congressman Bob Ney -- six weeks before the election. We could have taken the -- we could have taken the plea after the election. And I'm sure when we took that plea, there were some Republicans around the country probably scratching their heads, wondering, "What in the world are they doing?"
Well, what we're doing is doing what's best for the case. That's what we did. We don't let politics play a role -- partisan politics play a role in the decisions we make in cases.
And we've prosecuted members of Congress, we've prosecuted governors, Republicans. And so, this notion that somehow we're playing politics with the cases we bring is just not true.
And the American people need to understand that. Because, when you attack the department for being partisan, you're really attacking the career professionals. They're the ones, the investigators, the prosecutors, the assistant U.S. attorneys, they're the ones doing the work.
And so, when someone says that we politicized a case, what you're doing is criticizing the career folks. And that's not right.
And in terms of why I should remain as attorney general, you're right, this is not about Alberto Gonzales. This is about the Department of Justice and what is best for the department. And as I look back over the past two years, I look back with pride in the things that we've accomplished: a lot of good things with respect to protecting our kids, protecting our neighborhoods, protecting our country.
I have admitted mistakes in managing this issue. But the department as a general matter has not been mismanaged. We've done great things. And we will continue to do great things.
GONZALES: And I will work as hard as I can to improve morale.
Obviously, this was an unfortunate incident for the department. But the work of the department continues.
And it's very important for the American people to understand that. Cases are still being investigated. Cases are still being prosecuted. Because these are career folks, and all what they care about is making sure justice is done.
And that's what I care about. And I've instructed every United States attorney, I don't want an investigation or a prosecution sped up or slowed down because of what's happened here. I expect everyone at the Department of Justice to do their job. And it continues.
KOHL: Well, I appreciate that.
And the point is still, I believe, that at the moment two-thirds of the American people believe that these U.S. attorneys were fired for partisan political reasons. And over half of the American people believe that we'd be better off if you resign.
Now, I'm sure you would agree that the perception of the American people with respect to the attorney general and his position and his impartiality in the dispensation of justice is critical.
Now, if after these hearings are over -- if a week, or two or three from now, the American people still feel that way, how would you then feel about the importance of your tenure as the attorney general of the United States?
GONZALES: Senator, I have to be -- I have to know in my heart that I can continue to be effective as the leader of this department.
Sitting here today, I believe that I can. And every day I ask myself that question, "Can I continue to be effective as leader of this department?"
The moment I believe I can no longer be effective, I will resign as attorney general.
KOHL: Yes, and if the American public's perception is negative, how does that impact your perception?
GONZALES: Senator, part of my goal today is to educate and inform the American public about what happened here. The notion that there was something that was improper that happened here is simply not supported by the documents. I don't think it's supported by the testimony, much of it which I haven't seen.
GONZALES: It's certainly not the reason that I asked for these resignations.
And I've tried to reassure the American public. I am committed to getting to the bottom of this. I can't interfere with this investigation, but I've asked the Office of Professional Responsibility to work with the Office of the Inspector General and let's find out what happened here.
If, in fact, someone did something, made a recommendation for improper reasons, yes, there's going to be accountability. Absolutely.
KOHL: Thank you very much.
And thank you, Mr. Chairman.
LEAHY: Thank you.
I should note just for the audience, we have people here who are both supporters of the attorney general and opponents of the attorney general. You are guests of the United States Senate and nobody is more protective of First Amendment rights than I.
But if signs are being held up and are blocking the views of people -- I don't care whether the signs are for the attorney general or opposed to the attorney general, if signs are being held up blocking the views of others, who have just as legitimate a right to be here as everyone else, the people doing that will be removed.
I'm going to go to Senator Hatch and then I'm going to go to Senator Feinstein and then we'll take a 10-minute break. Is that -- thank you.
SEN. ORRIN G. HATCH, R-UTAH: Well, thank you, Mr. Chairman.
Welcome, Mr. Attorney General.
Mr. Attorney General, do you make decisions at the Justice Department based upon the polls?
GONZALES: No, sir, I don't.
HATCH: No, you don't, do you?
GONZALES: Senator, I make decisions, particularly with respect to cases, based on the evidence, not based upon whether or not the target the Republican or Democrat. And, of course, I've been appointed by the president, confirmed by the Senate to make decisions based on my best judgment.
HATCH: I take it not whether it favors you or disappoints you.
GONZALES: Sometimes, Senator, in doing my job, I'm going to make people unhappy.
HATCH: On March 19th, one of my Democratic colleagues said that he would be surprised if you were attorney general a week later. Well, I'm glad to see you here a month later, personally, because we've worked rather extensively together and I've seen an awful lot of good work down there that you've been describing to a good deal today, and you can't even begin to touch all the good things that have been done.
You've said here today that you want to help Congress and the public understand what happened in the removal of these U.S. attorneys. Your actions back up your words. I applaud you for making available the Justice Department's top officials and staff for testimony and interviews, as well as thousands and thousands of pages of documents.
Now, I'm afraid that some simply do not want to go where the evidence tells us to go. Some appear to have decided, in our country today, instead where they want to go and they're fishing for anything that they can claim will back up their preconceived conclusions.
Now, it's one thing to conduct legitimate oversight over matters that are the subject of legislative concern; it's another to traipse around on ground committed by the separation of powers to another branch of government.
I think that's what's been going on here, and I think it's unfortunate, I think it's wrong.
HATCH: I know you have to -- you've stated this before, but let me ask you just once more for the record, because this is important: Were any of these eight U.S. attorneys asked to resign in retaliation for or to interfere with any case that they brought or refused to bring?
GONZALES: That's not the reason I asked for the resignations, Senator. And from everything that I've seen and heard...
HATCH: Then the answer is no.
GONZALES: ... I don't think anyone was motivated for that reason.
How many employees do you have at the Department of Justice?
GONZALES: Around 110,000.
HATCH: One hundred and ten thousand employees.
What are the main core functions of the Department of Justice that you supervise?
GONZALES: Well, we enforce the law. We prosecute cases in our federal courts. The FBI is the lead investigatory agency in the country. We have...
HATCH: ... the FBI.
GONZALES: Pardon me?
HATCH: You overview the FBI.
GONZALES: The FBI comes within the jurisdiction of the Department of Justice.
We have the Drug Enforcement Agency. We have the Bureau of Prisons. We have Alcohol, Tobacco and Firearms; very involved, along with the FBI, with respect to the tragedy that happened out at Blacksburg.
And so there are many very, very important divisions that exist within the Department of Justice family that contribute to the core mission of the department of ensuring that our laws are enforced and that justice is, in fact, delivered here in our country.
HATCH: You spend a lot of time traveling in the country as well, don't you?
GONZALES: I do. I think it's important to go out and see the components.
One of the things I really enjoy is to visit folks in the United States attorney offices. I like to go by and visit the United States attorney. I like to speak with the staff, express to them how important they are, let them know that really the success of the department is not the attorney general, it's not the United States attorney, it is the career investigators, the career professionals.
HATCH: You spend a lot of time down at the White House as well, don't you?
GONZALES: I don't spend as much time as I used to spend at the White House.
HATCH: ... the Cabinet meetings?
GONZALES: Of course. I'm there at Cabinet meetings. And I'm there for policy discussions and when there's a need for me to be at the White House.
GONZALES: As Andy Card once used to say, if you need to see the president, you see the president. If you want to see the president, you don't see the president, because his time is so valuable.
HATCH: The president wants to see you, you're on call, right?
GONZALES: Of course.
HATCH: You go to intelligence meetings, right?
GONZALES: That is correct.
HATCH: Among various intelligence factions of government...
GONZALES: Yes. We...
HATCH: ... for important meetings?
GONZALES: From time to time, we do have meetings relating to threats to United States interests overseas and, of course, threats to the homeland.
HATCH: In fact, I've been in some of those intelligence meetings with you, in the secure room in the White House, right?
GONZALES: We do have intelligence briefings from time to time, in the Situation Room, yes, sir.
HATCH: Now, many of our fellow citizens may not have an accurate picture of what federal prosecutors do, or their relationship with the Justice Department here in Washington, what we call main Justice.
Now, I think many people probably see U.S. attorneys as something like independent contractors, able to call their own shots, set their own priorities, follow their own policies. And there might also be another kind of misunderstanding, in the other direction, when people here had said that U.S. attorneys are political appointees.
That makes understanding all of this much harder for our fellow citizens who have been characterized here today.
Now, I'd like to help -- I'd like you to help dispel these myths a little, by describing what the roles and the relationships should be between the U.S. attorneys around the country and the Justice Department, which ultimately means you and the president, here in Washington.
GONZALES: Senator, United States attorneys are accountable to the president, through me. We are accountable to the American people. And there has to be real accountability.
Obviously, with respect to decisions relating to prosecution, U.S. attorneys should have and do enjoy independence in exercising their judgment as to what cases to move forward with or not.
GONZALES: But with respect to policy, a president and the attorney general -- we are accountable to the American people. The president is elected based upon a set of -- his policies, his priorities. I mean, the only way to get those implemented is through the U.S. attorney. And it's important that the United States attorney support the policies and priorities of the president of the United States.
And obviously, within each specific district, there are going to be specific needs and priorities that are local. And the U.S. attorney has to find a way to accommodate those local needs and priorities, as well as the national needs and priorities. Because those are important to the president of the United States, and the U.S. attorney, as a member of a president's team, is subordinate and is accountable to the president. And the president is accountable to the American people for his policies and for his priorities.
HATCH: I want to give you a fuller opportunity to explain your involvement in the process leading up to asking these U.S. attorneys to resign.
You made an important distinction, which makes your description perfectly reasonable. You distinguished between the general supervision of U.S. attorneys, in which your involvement was extensive, and the specific evaluation for identifying who should resign, in which your involvement was limited.
Now, this is an obvious distinction and an important distinction. Did I describe it accurately?
GONZALES: That is correct, Senator.
I had in my mind this process that Mr. Sampson was coordinating.
But, obviously, from time to time issues would come up with respect to the performance of United States attorneys that in my mind I viewed as simply doing my job as the attorney general to deal with a concern or complaint relating to performance of that United States attorney.
I do not, in my mind, view that as, "OK, that person goes on the list." Because I relied upon Mr. Sampson to coordinate an effort to consult with senior officials and make a decision as to whether or not -- where there were issues and concerns relating to performance.
But the fact that I delegated this task to Mr. Sampson doesn't mean that I abdicate my responsibility as attorney general to field complaints and to review and address concerns about a specific issue relating to a United States attorney.
GONZALES: And so, yes, in my mind, those were separate and apart.
HATCH: My time is up, Mr. Chairman.
LEAHY: Thank you, Senator Hatch.
And what we'll do, I'm going to go now to Senator Feinstein. We'll then take a 10-minute break. Following Senator Feinstein, as I mentioned earlier, Senator Grassley is at a funeral. If he is back, he would be the next in line. If not, Senator Cornyn or Senator Sessions, depending upon which one is here.
SEN. DIANNE FEINSTEIN, D-CALIF.: Thank you very much, Mr. Chairman.
I have essentially three questions that I'd like to ask you, Mr. Attorney General.
Let me go back. Whose idea was it to change the law in an amendment written by your staff, conveyed by your staff, Mr. Moschella, to Senator Specter's staff, Bart Brectholman (ph), on or about November 15th, 2005, to add in conference, without sharing it with any member of this committee, an amendment which effectively gave you the ability to replace U.S. attorneys without Senate confirmation? Whose idea was this?
GONZALES: Senator, I don't recall specifically the genesis of the idea, although, in going back and looking at the documents, it appears that there was some thinking about this as early as 2004.
I will say this: I do support -- I did support the change in the law, not in order to avoid Senate involvement, but because I, quite frankly, do not like the idea of the judiciary deciding who serves on my staff, and that's why I supported the law.
FEINSTEIN: So you, essentially, approved it being conveyed to the Senate in the manner in which it was conveyed.
GONZALES: Senator, I don't -- no, that's not what I'm saying. I don't -- I do not have any recollection about the mechanics of getting it -- of the legislative process.
FEINSTEIN: You don't have a recollection. OK. Let me go on, because my time is short.
I'm very confused. I'm unsure whether you were really the decider on this list or not. Because your written comments, printed yesterday, say, "I did not make decisions about who should or should not be asked to resign."
FEINSTEIN: Today you said three different things. "I accepted the decision of the staff." "I accepted the recommendations of the staff." And then, sort of, a vague statement, "I made my decision."
FEINSTEIN: Who was the decider?
GONZALES: Senator, I accepted the recommendations made by the staff. I'm the attorney general. I make the decision.
Can I see what you're reading from? You've referred to statements from yesterday. I don't recall making any...
FEINSTEIN: I referred in something entitled "Statement of Alberto Gonzales."
GONZALES: Oh, the written statement.
FEINSTEIN: The written statement, the top of page four.
FEINSTEIN: So in writing you clearly say, "I did not make decisions about who should or should not..."
This is, I guess, one of the problems, is that all of this has been, kind of, constant equivocation. Apparently...
GONZALES: Senator, you're not reading my entire statement. I said -- maybe you did, I'm sorry.
During those -- Mr. Sampson periodically updated me on the review. As I recall, his updates were brief, relatively few in number, and focused primarily on the review process itself.
During those updates, to my knowledge, I did not make decisions about who should or should not be asked to resign. So in connection with this review process, as Mr. Sampson gave me updates, I don't recall ever saying -- even though they were still in the deliberative process, ever saying, "No, take that person off," of, "Add this person." I don't recall ever doing that.
Now, certainly after the work had been completed, Mr. Sampson brought me recommendations. I accepted those recommendations. Those were my decisions. I accept full responsibility for those decisions.
FEINSTEIN: So that's what I wanted to know.
FEINSTEIN: You're prepared to say that you made the decision to fire these seven U.S. attorneys on that day, December 7th.
GONZALES: Senator, I don't recall whether or not I made the decision that day. I don't...
FEINSTEIN: I'm not saying that day. They were...
GONZALES: No, that was your question.
FEINSTEIN: Mike Battle made the phone calls that day.
GONZALES: Mr. Battle made phone calls that -- I made a phone call to Senator Kyl. Yes, phone calls were made that day.
FEINSTEIN: OK. So...
GONZALES: I don't recall -- I don't recall exactly when the decision -- I made the decision.
FEINSTEIN: All right. And you're testifying to us that you made these decisions without ever looking at the performance reports.
GONZALES: Senator, that is correct. Again...
FEINSTEIN: OK. That's what I wanted to know.
GONZALES: ... that those EARS evaluations are evaluations of the performance of the office.
GONZALES: They would just be one of many factors. And I would say United States attorneys universally would say they ought to be given the appropriate weight when looking at the performance of a United States attorney.
FEINSTEIN: All right.
Mr. Mercer, who was in charge of the process, in his transcript on the question...
GONZALES: Senator, I don't believe he was in charge of it. Mr. Sampson -- I delegated to Mr. Sampson the task of coordinating this process.
FEINSTEIN: Mr. Mercer was not in charge of looking at the EARS reports?
GONZALES: Senator, I don't recall knowing whether or not Mr. Sampson was in charge. You mean, as a general matter?
FEINSTEIN: Excuse me -- Mr. Battle?
GONZALES: Mr. Battle -- he was the director of the Executive Office of United States Attorneys. So the EARS evaluation is performed through that office.
FEINSTEIN: So he would have looked at those reports?
Let me give you a question and an answer from the transcript, page 43.
GONZALES: Senator, can I see what you're reading from?
FEINSTEIN: I am reading for the staff interview on a transcript.
GONZALES: I haven't seen that transcript. Could I see it, if you're going to ask me a question about it?
FEINSTEIN: May I ask the question, and then send it down?
GONZALES: Yes, certainly. I'm sorry.
FEINSTEIN: The question is, "What did you do in response to her request to identify certain U.S. attorneys and/or districts?"
Answer: "I basically wondered about the request. I had my secretary print out a list of all the U.S. attorneys just to see if I could look at the list and see if there was anybody on there who may have been involved in some issues of misconduct or things of that nature that somebody maybe didn't know about, and I could report that to someone. I looked at the list. Nobody jumped out at me. I put the list away."
If you'd like to see this, I'll be happy...
LEAHY: And I think, without...
GONZALES: Can you just give me the page number, Senator?
LEAHY: And this without -- and I'll offer extra time to the senator from California on this -- Mr. Attorney General, I sent you a letter notifying you of this subject and referring to the transcript, so you would not be surprised.
GONZALES: Thank you, Senator.
What page is that on, Senator?
FEINSTEIN: It's page 43.
GONZALES: And your question is?
FEINSTEIN: My question is, did anybody that was involved in the -- which was an unprecedented group-firing of U.S. attorneys -- ever look at their performance reports prior to putting them on the list?
GONZALES: Senator, I don't know that.
Now, let me -- you said today...
GONZALES: But I would just say, again, I want to emphasize about the appropriate weight to put on a EARS evaluation. You could have a great EARS evaluation, which means you have a great team. But you can have a U.S. attorney that's not doing a very good job.
FEINSTEIN: All right.
You said today, "We could do much better with regard to Carol Lam."
So let me be clear: Carol Lam was ranked as one of the top 10 prosecutors in the country for her prosecutions and her conviction rate. San Diego reached its lowest crime rate in 25 years during her tenure.
She brought down the Hell's Angels gang in San Diego. She was told by Deputy Attorney General James Comey that he was satisfied with her prosecution strategy for gun crimes. She brought indictments against the Arellano-Felix cartel, a significant success in the fight against drugs. She gained a national reputation for her work on public corruption cases, which was the FBI's second-highest priority, just after terrorism. She was praised by the Border Patrol, the Immigration and Customs Enforcement, local leaders of the FBI, the San Diego city attorney, judges in her district and many others.
I -- the letters have said immigration is not one of the department's top priorities. However, immigration prosecutions accounted for the largest single crime category prosecuted during Lam's tenure.
FEINSTEIN: And in August, I received a letter dated August 23rd -- that's just prior to the December 7th firing -- signed by Will Moschella, that says this: "Prosecutions for alien smuggling in the Southern District under 8 U.S.C. Section 1324 are rising sharply in the year 2006.
"As of March 2006, the halfway point for the fiscal year, there were 342 alien smuggling cases filed in that jurisdiction. This compares favorably with the 484 alien smuggling prosecutions brought there during the entirety of fiscal year 2005."
And the letter goes on, "This was in answer to an inquiry I made. The letter says all is fine on the western front, the Southern District, with respect to these prosecutions."
And, finally, "No one in the department communicated to Carol Lam that there were concerns with the handling of her immigration cases."
If this is the reason for the firing of a distinguished U.S. attorney, shouldn't somebody talk to her and say, "Look, we have a concern," and give her an opportunity to respond?
GONZALES: Senator, she is a distinguished prosecutor, and I commend her service as a prosecutor and as a judge, and she's a wonderful person.
She was acutely aware of the concerns that existed with respect to her policies. She received letters directly from Congress. She met with members of Congress. There were communications back and forth with the Department of Justice about her numbers. I think that she was aware of the fact that we had concerns.
With respect to the letter, I don't recall being aware of the letter when I accepted the recommendation. I made the decision to ask for Ms. Lam's resignation.
But you can't just focus on alien smuggling. Illegal entry, illegal reentry are, likewise, important.
Ms. Lam served with distinction in a lot of other areas. And, of course, she's going to have a lot of fans, and as do these other United States attorneys that were asked to resign, because there are good things that they did.
But this was a very important border district, and it was appropriate for the president of the United States and the attorney general to expect that we would make improvements with respect to both gun prosecutions and immigration prosecutions.
That is the reason why I asked for Ms. Lam's resignation. She had served for four years, and we felt that it was the appropriate time to make a decision to try to improve performance with respect to -- certainly with respect to immigration prosecutions.
FEINSTEIN: If I might, you mentioned the House members. I'd like to bring to your attention an e-mail sent on August 2nd that indicates she is meeting with Issa and Sensenbrenner. And this is from Rebecca Seidel to Mark Edley (ph). "Sounds like she handled well and it was actually constructive. See below."
And then there is a litany about the meeting: "very cordial, very constructive," et cetera.
GONZALES: Senator, there is no question that the record is full of discussions and concerns that the department had about Ms. Lam's performance related to immigration and gun prosecutions. That is the reason why I decided to ask for her resignation, to make a change.
Now we -- those are the -- that's the reason why.
FEINSTEIN: Thank you, Mr. Chairman.
LEAHY: Thank you.
We will take a 10-minute recess and then Senator Cornyn will be next.
LEAHY: The committee will be in order.
LEAHY: And, again, I would remind people that you're here as guests of the United States Senate. We have both supporters and opponents of the attorney general. That's fine. I think the attorney general would agree with me, we protect the right of people to do that. But I will not have you disrupting -- anybody, on either side, disrupting these hearings.
These hearings are important. The attorney general is entitled to be heard. Senators are entitled to ask their questions. And we will have the kind of decorum expected by the Senate.
Just so everybody understands.
SEN. JOHN CORNYN, R-TEXAS: Thank you, Mr. Chairman.
General Gonzales, you and I have known each other a long time, and I believe that you are a good and decent man.
But I have to tell you that the way that this investigation has been handled is just been -- been really deplorable.
You say that the process was flawed and you made mistakes in managing it. And I'd like to ask you, how should you and the department have conducted this process, if at all?
GONZALES: I believe that the review was appropriate, quite frankly. I think it is appropriate to ensure that public servants are doing their job. And that if we can make improvements, I think I have an obligation as the attorney general to pursue those improvements.
Looking back, things that I would have done differently? I think I would have had the deputy attorney general more involved, directly involved.
I think that I should have told Mr. Sampson who I wanted him to consult with specifically. I should have asked him, "Who are you going to consult with?" I should have told him, "I want the recommendation to include these people." And I think he should have -- I should have asked him, "Who do you think it ought to include as well?"
I should have told him the factors that I thought were important for him to consider. I should have told him, "This is a process that should not take two years, it's a process that should be completed in probably about six months -- six to 12 months, something like that."
GONZALES: And I think I would have told him -- I should have told him, "There ought to be a face-to-face meeting with every United States attorney during this review and it ought to involve the DAG, or it ought to involve me. And we should have a list of particulars and talk with them about issues or concerns that I have and give them an -- give the United States attorney an opportunity to respond to those concerns that we've raised."
And so I think these are the things -- when I talk about a more rigorous, a more structured process, I think these are the kinds of things, in hindsight, that I wish would have happened.
Now, I want to be very, very careful about formalizing a review process. Quite frankly, I raised this issue in my United States attorney dialogue. The United States attorneys do not want a formal evaluation process. They don't want it. They want to report to the DAG and to the attorney general, and so that -- what we're going to do is try to improve communication as opposed to implementing a formal process.
I think it's also unfair to the president of the United States, quite frankly. If you have a formal evaluation process and that process shows that a United States attorney is doing a great job, but the president wants to make a change, politically, it may be tougher for the president to do that.
And so, I think, for those reasons, I would not have a formalized process, but I would have had a more structured and a more rigorous process in the manner that I've described.
CORNYN: What I'm struggling to understand about this controversy is President Clinton replaced 93 United States attorneys in one fell swoop. There is no requirement that any cause for replacement of a U.S. attorney be stated because they serve at the pleasure of the president of the United States.
CORNYN: That's one of the consequences of the election.
And so, if in fact there is no evidence -- and I haven't heard of any evidence -- that these U.S. attorneys were replaced with the purpose in mind of interfering with an ongoing investigation or prosecution -- your comments along that line have been backed up by the FBI director and others, that there is no evidence of that -- then I can only conclude that we find ourselves here today -- you find yourself where you are today -- as a result of injecting performance- based rationale into the decision to replace the United States attorney.
My recollection is that the deputy attorney general, Mr. McNulty, first offered those performance-based rationales for replacement of these attorneys, each of whom had served four years. And this is not a lifetime-tenured job. It's not like a federal judge.
And it would have been much better to tell each of these United States attorneys, "Thank you for your service. You've served for four years. And now it's time for someone else to have an opportunity to serve their country in this important job."
Wouldn't that have been a better way to address this, in retrospect?
GONZALES: Senator, that was -- as I've gone back and reviewed, sort of, the implementation plan -- that was in essence, sort of, a talking point. It was not to get into specifics about issues or concerns about performance.
But if you look at the documentation, it is clear that we struggled -- not struggled -- but this was an endeavor to identify those areas where there were issues or concerns about performance.
Where we made a mistake, clearly -- I think -- is once we said "performance," we should have defined that. Because performance, for me, means lots of things.
It means whether or not you've got the appropriate leadership skills, whether or not you've got the appropriate management skills. It may mean whether or not you support the president's policies and priorities.
GONZALES: It may mean that you don't have -- that you have a sufficient -- that you have relationships with state, local and federal partners to discharge the mission of the office.
And so there are lots of things that fall within, in my judgment, the definition of performance-related.
And I think that, having said "performance-related," we should have been -- we should have defined what we meant by that. It didn't mean that the person was a bad lawyer, necessarily a bad manager.
It may have been an instance where the person no longer continued to be the right person at the right time for that position.
CORNYN: Well, I think that, invariably, when people's performance is placed in issue, then they feel the necessity to defend themselves. And that shouldn't have been required of them in a public forum like this. Because, unfortunately, their reputations now have been affected by this present controversy.
And what concerns me even more is there have been attempts, I know on the House side particularly, to identify people who were reviewed, who were not relieved, and to further drag them and their reputations through this process.
I think that would be a disservice to them and a serious mistake, to engage in that kind of fishing expedition.
But, Mr. Attorney General, since I don't have a chance to ask you questions like this very often, let me change the topic, just briefly, to decisions made by federal prosecutors in recent border prosecutions.
Senator Feinstein asked you about Carol Lam and some of her immigration-related prosecutions.
But in particular, I've received a number of complaints from constituents about the prosecution and jailing of two Border Patrol agents from the El Paso area, agents Ramos and Compean.
I assume you're familiar with that -- those. I'm confident you are, given the attention that it's received. And I'd like to ask you to answer these questions. And I'll ask you the questions, and my time will run out, and you'll feel free to answer them.
Do you believe that the public has been fully informed by the news media about this case?
Do you agree that a hearing by this committee on that case, at which time all of the facts can be explored, would be a legitimate exercise of our oversight responsibility?
Would you in fact welcome such a hearing?
And would you pledge, on behalf of the Department of Justice, full cooperation with the committee, as we prepare for such a hearing?
GONZALES: Senator, it's hard for me to answer the first question.
There is a lot of -- I think a lot of misinformation or disinformation about what happened here.
I've known the prosecutor for many years. And I have confidence in his judgment. A jury agreed with the fact that these border agents who -- let me just say, Border Patrol agents should be saluted as heroes. They serve this very important function for our country, sometimes at the risk to their lives.
But a jury agreed that, in this particular case, these two individuals broke the law. And not only did they break the law, but they tried to hide their crime.
And Mr. Sutton, again, following the evidence, did what he thought was right, based upon the circumstances of this particular case.
With respect to a hearing by committee, in terms of what happened here, I will say that the department will try to be -- as always, will fully cooperate. We'll try to be as helpful as we can.
And I'd be happy to consider your request for a hearing.
There's already a lot of information out there. But if we haven't provided more information about this, I'd be happy to do so.
We want the committee to be reassured that, in fact, there was nothing improper that happened here as well; that Mr. Sutton, again, followed the evidence, a jury agreed that, in fact, a crime had been committed, and this was the right result.
And if there's information that we have that we can provide to the committee to reassure the committee, we'd be happy to look at that.
CORNYN: I know a hearing was scheduled, and then it was postponed. And my hope is that it can be rescheduled and we can have that oversight hearing to make sure all of the facts get out, not rumor, innuendo and speculation, but the facts, so we can conduct our proper oversight responsibilities and the American people can be reassured of what the facts actually are.
CORNYN: Thank you, Mr. Chairman.
LEAHY: I just want to make sure I fully understand something.
It was mentioned, and I understand it to be a fact that President Clinton replaced 93 of the U.S. attorneys in the previous administration. How many of President Clinton's attorneys were replaced by President Bush?
GONZALES: Eventually, Senator, I believe -- I don't know...
LEAHY: It was either 92 or 93, I think you'll find.
GONZALES: Over a period of time, that is correct, sir.
There was a conscious decision made that we would not follow the model used by this president's predecessor, that it was too abrupt and disruptive, and that we felt that we ought to do the...
LEAHY: Just because...
GONZALES: ... resignations on staggered terms.
LEAHY: ... I get a lot of calls from people who say, "Well, didn't President Clinton replace..."
As I recall, just the period of time I've been here, President Carter replaced all of the Ford-Nixon U.S. attorneys. President Reagan replaced all of President Carter's. Former President Bush eventually replaced most of President Reagan's. President Clinton replaced President Bush's. And this President Bush replaced President Clinton's.
I can't speak about what happened before I was in the Senate, but that is my recollection.
SEN. RUSS FEINGOLD, D-WIS.: Thank you, Mr. Chairman.
And let me just note that I hear a lot in my state about these border guard incidences as well, and look forward to whatever information is coming forward on that or hearings.
Mr. Attorney General, you've sworn an oath today and that oath carries with it certain legal consequences. But you have a duty to the American people as a public servant to tell the truth when you speak to the public in a press conference, a news interview or by publishing an op-ed piece in the newspaper, don't you?
GONZALES: Senator, I believe that when I speak to the American people and to the public that I should be truthful. And I endeavor to be truthful.
FEINGOLD: Let me then go back to the subject that Senator Kohl brought up that's of particular interest to us in Wisconsin, on the question of the case of Georgia Thompson. This was the highly publicized public corruption case which got a lot of attention in Wisconsin during much of 2006, especially since it happened during the reelection campaign of the governor of the Wisconsin.
On April 5th, right after oral argument in the case, the Court of Appeals for the 7th Circuit ordered that Ms. Thompson be immediately released from prison and her conviction was summarily reversed. I thought the report was wrong, because it's so unusual for an appeals court to simply release somebody at that level.
The appellate judges suggested that the evidence in the case was extremely weak and said essentially the case should have never been brought.
Can you understand why many citizens of my state, as they see this U.S. attorney scandal widen, are now questioning whether the U.S. attorney in Milwaukee could have possibly brought the Thompson case for political reasons?
GONZALES: Senator, I don't -- I don't -- look at the facts here. Again, this was a career prosecutor. The charging decision was made in consultation with a then-Democratic state attorney general and a Democratic local prosecutor.
When you allege or anyone alleges -- I'm sorry, when anyone alleges that in fact there may have been politics involved in this case, what does that say to that attorney general, to that local prosecutor, to the career investigators and career prosecutors?
FEINGOLD: Let me interrupt here because time is so limited.
I didn't ask you and I'm not alleging that there were political considerations here. I'm asking can't you see how this U.S. attorney scandal, a problem that has occurred throughout the Justice Department, leads to a situation where people wonder if there are political situations -- considerations.
GONZALES: Senator, I can't speak to what may be in the minds of the people in your state. Again, I'm doing everything I can...
FEINGOLD: Yes, I can, and I can tell you this overall problem here has led to some, you know, very unfortunate thoughts about the situation that may or may not be justified.
I'm just trying to highlight what a problem this whole scandal has created.
Do you plan to have the department's Office of Professional Responsibility review the Georgia Thompson case?
GONZALES: Am I?
FEINGOLD: Yes. Are you planning to have the department's Office of Professional Responsibility review this case that I just...
GONZALES: Senator, I don't recall whether there's been action on that, but I'd be happy to consider that.
FEINGOLD: I hope you will, because I think it's very important for the reason I just gave you.
I also understand from press reports that the U.S. attorneys office in Milwaukee has provided documents to the Justice Department that are responsive to the letter that Senator Kohl and I sent, along with Chairman Leahy and other members of the committee, last week on this incident.
FEINGOLD: When can we expect a response to our letter and the production of the documents we asked for?
GONZALES: Senator, it's a recent request. I'm told that we're talking about a voluminous amount of records. We're in discussions with, I understand, committee staff and trying to do what we can to get documents up as quickly as we can.
FEINGOLD: I hope it will be soon.
Now, let me ask you about something that's been a major part of the questions of Senator Specter, Senator Kennedy, Senator Feinstein and others. And these are factual questions, so I hope they can be quick answers.
Kyle Sampson has testified that he kept you generally informed about the process of identifying U.S. attorneys who might be asked to step down. Did you ever ask him for specific information about who he was speaking to in connection with this process, or what he was doing to follow up and check out the information he received?
GONZALES: Senator, what I recall is telling Mr. Sampson, "Make sure the White House is appropriately advised, because these are political appointees," and telling him that I expected him to consult with the senior leadership at the department, people who would know best the qualifications, the performance of United States attorneys.
FEINGOLD: This is what you told him to do, but I'm asking whether you checked back with him after he did it.
GONZALES: Senator, I can't recall whether or not at the time he made the recommendations that I said "Does this -- who did you consult with and whose recommendations are these?"
I'll tell you what I understood. What I understood...
FEINGOLD: Let me continue. That is a sufficient answer: You say you don't recall having done that.
Did you at any time probe the information that Kyle Sampson provided to you, including the recommendations that he ultimately made in the seven U.S. attorneys to be fired?
GONZALES: Senator, I don't recall having specific questions or -- about specific -- I do recall that when the recommendations were made, I was not surprised to see five of the names on the list.
FEINGOLD: Did you ever talk to Deputy Attorney General Mr. McNulty about whether he was comfortable with the process that was under way?
GONZALES: With the process that was under way, I don't recall such a conversation, but afterwards, on the evening of Mr. Sampson's testimony I asked...
FEINGOLD: OK, I'm less interested in the -- I'm interested in the effects prior to.
Did you ever talk to the head of the Executive Office of U.S. Attorneys or anyone else other than Mr. Sampson about whether the process was identifying the proper U.S. attorneys to be relieved of their positions?
GONZALES: What I recall were a conversation with Mr. Sampson -- that's what I recall, Senator.
FEINGOLD: Did you, at any time prior to your meeting on November 27th, 2006, ask for a report in writing on the progress of the project?
GONZALES: I don't recall asking for a report in writing.
FEINGOLD: How about when the final decisions were made at any time prior to November 27th, 2006, when you approved the firings? Were you given or did you request a written memo or report giving the justifications for each of the decisions?
GONZALES: Senator, I don't recall that occurring. Again, what I recall is Mr. Sampson presenting to me a recommendation which I understood to be the consensus recommendation of senior officials of the department.
FEINGOLD: In light of the fact that you had so little to do with the decisions, and made so little effort to understand...
GONZALES: I had everything to do with the decision. It was my decision.
FEINGOLD: Well, so little to do with the basis for the decision or why it was done, and you made so little effort to understand the reasons behind them, you really had no basis for telling the American people in your USA Today op-ed of March 7th that these U.S. attorneys had lost your confidence, did you?
GONZALES: Senator, what I understood was that the recommendations reflected the consensus judgment of the senior leadership of the department and that, therefore, the senior leadership had lost confidence in these individuals and thus the department had lost confidence.
Now, I will say, I regret the use of those words. But clearly I understood that the senior leadership, that the recommendation made to me reflected the consensus view of the senior leadership of the department, of individuals who would know better than I about the qualifications of these individuals.
FEINGOLD: Well, I recognize that you've stated this now. But you could have taken immediate steps to correct the misstatements in this op-ed. You could have sent a letter to the editor. Instead, you let what is essentially a false statement sit out there, harming the reputation of dedicated public servants.
And I think that's inexcusable.
FEINGOLD: Aside from the fact that you had so little to do with the decisions and made so little effort to understand the reasons behind them, you can't really say with certainty, as you did in your testimony today, quote, "that there is no factual basis to support the allegation, as many have made, that these resignations were motivated by improper reasons," unquote. You can't really say that, can you?
GONZALES: Senator, I know the basis on which I made my decision. And I'm not aware of anything in the record, I'm not aware of any testimony which would seem to support the allegation that someone was motivated by improper reasons in making a recommendation to me.
I don't think the documents support such an allegation.
But just to be sure, I have asked the Office of Professional Responsibility to work with the Office of Inspector General to confirm this.
I want to get to the bottom of this as well, Senator, just as you do. And I want to reassure the American people that there was nothing improper about what happened here.
FEINGOLD: Well, I appreciate that sentiment at this point. But you didn't know then. And you don't know today how each of these people actually made it onto that list that you were presented with on November 27, do you?
GONZALES: Senator, I've gone back and searched the record. I've spoken with the deputy attorney general and asked him whether or not he stood by the decision. And so that is his view. That is my view.
The decision stands. It should stand. And I believe it was the right decision.
I regret the way in which it was implemented. There were obviously mistakes in the review process. I've outlined to Senator Cornyn the things that I would done differently; that, in hindsight, I think would have been more appropriate.
FEINGOLD: Well, you know, I'm obviously going to take that as a note to the question that I actually asked.
But, you know, it's pretty clear that this is a situation that at the time you had no basis to know exactly how these people came to be on the list. The fact that various justifications have been made up or concocted after the fact doesn't cut it with me.
GONZALES: Senator, if you look carefully at the documents, you can see that there were people at the Department of Justice looking at various issues with respect to U.S. attorneys. A lot of documentation with respect to immigration and gun prosecution with respect to Carol Lam. There is some documentation with respect to (inaudible) and Mr. Bogden. There's documentation with respect to the information sharing and Mr. McKay.
So there is documentation, Senator, about these reasons. There may be other evidence or information in the minds of fact witnesses that you have access to, that I don't have access to. But it's because I want to respect the integrity of this process.
FEINGOLD: There's no credibility to the notion that it was your considered judgment that those justifications were the reason for removing those people at the time. There's simply nothing in the record that demonstrates that you had a sufficient effort made to make that determination.
GONZALES: Senator, I thought I had a good process in place. I think I'm justified in relying upon the judgment of the senior leadership of the Department of Justice. I think I'm justified in relying upon the people who know a lot more about the qualifications and performance of United States attorneys, and accepting that recommendation.
I did have in my mind, at least information -- or reasons with respect to five of these individuals. I was not surprised that they were recommended to me based upon my knowledge.
FEINGOLD: Thank you, Mr. Chairman, for the extra time.
LEAHY: Thank you very much.
SESSIONS: Mr. Attorney General...