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An Investigation Into the Removal of Nine U.S. Attorneys in 2006

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An Investigation Into the Removal of Nine U.S. Attorneys in 2006 U.S. Department of Justice An Investigation into the Removal of Nine U.S. Attorneys in 2006 U.S. Department of Justice U.S. Department of Justice Office of the Inspector General Office of Professional Responsibility September 2008 TABLE OF CONTENTS CHAPTER ONE INTRODUCTION ................................................................ 1 I. Methodology of the Investigation ....................................................... 2 II. Organization of this Report ............................................................... 4 CHAPTER TWO BACKGROUND.................................................................. 7 I. U.S. Attorneys .................................................................................. 7 II. Selection of U.S. Attorneys................................................................ 8 III. Department Evaluation and Interaction with U.S. Attorneys ............. 9 IV. Backgrounds of Department Officials.............................................. 10 A. Alberto Gonzales ................................................................... 11 B. Kyle Sampson ....................................................................... 11 C. Monica Goodling ................................................................... 11 D. Paul McNulty ........................................................................ 12 E. Michael Elston ...................................................................... 12 F. David Margolis ...................................................................... 13 G. William Mercer ...................................................................... 13 CHAPTER THREE FACTUAL OVERVIEW.................................................. 15 I. Development of U.S. Attorney Removal Lists ................................... 15 A. Genesis of Plan to Remove U.S. Attorneys.............................. 16 B. Process to Identify U.S. Attorneys for Removal....................... 16 C. The First List – March 2, 2005............................................... 18 1. Input from Comey and Margolis ................................... 21 2. Reaction to the List from the Office of the White House Counsel................................................... 22 3. Fall 2005 – Further Consultations about the Removal of U.S. Attorneys.......................................................... 23 a. Battle ................................................................. 23 b. Mercer................................................................ 23 c. Comey ................................................................ 24 d. Buchanan .......................................................... 24 D. The Second List – January 2006............................................ 25 i 1. Sampson’s January 1, 2006, Draft List ........................ 25 2. The January 9, 2006, Memorandum from Sampson to the White House ...................................................... 27 3. The First Removal: Todd Graves.................................. 29 E. The Third List – April 14, 2006 .............................................. 30 1. Heffelfinger .................................................................. 31 2. Ryan............................................................................ 32 3. The Plan to Replace Cummins with Griffin ................... 33 a. Miers’s Request Regarding Griffin ....................... 33 b. Battle Tells Cummins to Resign .......................... 34 4. Sampson Suggests that Patrick Fitzgerald Be Removed 34 F. The Fourth List – September 13, 2006................................... 35 1. Sampson’s “Consensus” Process in Compiling the List . 37 2. The Removal Plan Takes Shape.................................... 39 G. Elston’s List – November 1, 2006........................................... 40 H. The Fifth List – November 7, 2006 ......................................... 42 1. Iglesias is Added to the List.......................................... 42 2. The Removal Plan ........................................................ 43 3. Reaction to the November 7 List and Plan .................... 44 I. The Sixth List – November 15, 2006 ...................................... 46 1. The Revised Plan.......................................................... 46 2. Execution of the Plan is Postponed............................... 47 3. The November 27, 2006, Meeting in the Attorney General’s Office.............................................. 48 a. Gonzales’s Recollection of the November 27 Meeting ......................................... 49 b. McNulty Asks to Add Ryan to the List ................. 49 c. White House Approval of the Removal Plan ......... 50 J. The Seventh and Final List – December 4, 2006 .................... 50 1. The White House Approves the Plan ............................. 50 2. The Implementation of the Removal Plan...................... 51 II. The Aftermath of the Removals ....................................................... 52 A. The U.S. Attorneys’ Initial Reactions...................................... 53 B. Concern that the Department Intended to Bypass Senate Confirmation for Replacement U.S. Attorneys ........................ 54 C. The Department Begins to Publicly Respond to Concerns About the Removals .............................................................. 55 ii 1. Articles About Cummins’s Removal.............................. 55 2. Senators Express Concern About the Removals............ 57 3. Sampson’s January 2007 Briefing of Senate Judiciary Committee Staff ........................................................... 58 D. Elston’s Telephone Calls to Charlton and McKay on January 17, 2007.................................................................. 61 1. Telephone Call to McKay.............................................. 62 2. Telephone Call to Charlton........................................... 63 3. Elston’s Description of the Telephone Calls .................. 63 E. Attorney General Gonzales’s January 18, 2007, Testimony Before the Senate Judiciary Committee ................................. 64 F. Cummins Seeks Advice from Elston ...................................... 65 G. McNulty’s February 6, 2007, Testimony Before the Senate Judiciary Committee ............................................................. 65 1. McNulty’s Use of the Term “Performance-Related” to Describe the Removals ................................................. 65 2. Attorney General Gonzales’s Reaction to McNulty’s Testimony.................................................................... 67 3. U.S. Attorneys’ Reaction to McNulty’s Testimony.......... 68 H. The February 8 Letter from Several Senators ......................... 68 I. McNulty’s February 14 Closed Briefing for the Senate Judiciary Committee.................................................. 69 1. Preparation for the Briefing.......................................... 69 2. McNulty’s Briefing for the Senate Judiciary Committee 71 J. Elston’s Alleged Threat to Cummins ...................................... 73 1. Cummins’s Quote in The Washington Post................... 73 2. Elston’s Telephone Call to Cummins ............................ 74 a. Cummins’s Account of the Telephone Call .......... 74 b. Cummins’s E-mail to Bogden, Charlton, Iglesias, Lam, and McKay about the Telephone Call ......... 75 c. Elston’s Account of the Telephone Call ............... 76 K. The Department’s Response to the Senators’ Letter ............... 77 L. Events in March 2007 ........................................................... 78 1. March 3 Washington Post Article ................................. 78 2. House and Senate Hearings ......................................... 78 3. Cummins’s February 20 E-mail Surfaces ..................... 79 4. Moschella’s Testimony Before the House Judiciary Subcommittee.............................................................. 82 a. Preparation Sessions .......................................... 82 iii b. Discussion in Preparation Sessions About White House Involvement ............................................. 82 c. March 5 Meeting at the White House to Discuss Moschella’s Testimony ........................................ 84 d. Moschella’s Testimony ........................................ 85 M. Attorney General Gonzales’s March 7 Op-Ed Article............... 87 N. Additional Documents Come to Light..................................... 89 O. Sampson’s Resignation.......................................................... 93 P. The Scudder Memorandum ................................................... 93 Q. Attorney General Gonzales’s March 13 Press Conference ....... 94 R. Attorney General Gonzales Directs an Investigation ............... 95 S. Attorney General Gonzales’s Conversation with Goodling....... 95 T. Goodling Resigns from the Department ................................. 97 U. Subsequent Events ............................................................... 97 CHAPTER FOUR TODD GRAVES ............................................................. 99 I. Introduction ................................................................................... 99 A. Graves’s Background............................................................. 99 1. The EARS Evaluation of Graves’s Office.......................100 2. Graves’s Status on the Removal lists...........................100 B. Reasons Proffered for Graves’s Removal................................101 II. Chronology of Events Related to Graves’s Removal........................ 102 A. The Misconduct
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