USTICE DEPARTMENT Secret Order By Gonzales Delegated Extraordinary Powers To Aides By Murray Waas, National Journal
© National Journal Group Inc.
Monday, April
30, 2007
Attorney General Alberto
Gonzales signed a highly confidential order in March 2006 delegating to two of his top aides -- who have since resigned
because of their central roles in the firings of eight U.S. attorneys -- extraordinary authority over the hiring and firing
of most non-civil-service employees of the Justice Department. A copy of the order and other Justice Department records related
to the conception and implementation of the order were provided to National Journal.
In the order, Gonzales
delegated to his then-chief of staff, D. Kyle Sampson, and his White House liaison "the authority, with
the approval of the Attorney General, to take final action in matters pertaining to the appointment, employment, pay, separation,
and general administration" of virtually all non-civil-service employees of the Justice Department, including all of
the department's political appointees who do not require Senate confirmation. Monica Goodling became White
House liaison in April 2006, the month after Gonzales signed the order.
The existence of the order suggests that a
broad effort was under way by the White House to place politically and ideologically loyal appointees throughout the Justice
Department, not just at the U.S.-attorney level. Department records show that the personnel authority was delegated to the
two aides at about the same time they were working with the White House in planning the firings of a dozen U.S. attorneys,
eight of whom were, in fact, later dismissed.
A senior executive branch official familiar with the delegation of authority
said in an interview that -- as was the case with the firings of the U.S. attorneys and the selection of their replacements
-- the two aides intended to work closely with White House political aides and the White House counsel's office in deciding
which senior Justice Department officials to dismiss and whom to appoint to their posts. "It was an attempt to make the
department more responsive to the political side of the White House and to do it in such a way that people would not know
it was going on," the official said.
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original draft of Gonzales's delegation of authority to Sampson and Goodling was so broad that it did not even require the
two aides to obtain the final approval of the attorney general before moving to dismiss other department officials.
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As was the case with the fired U.S. attorneys, the employees targeted
for dismissal would never know that they had been selected by the White House or the Justice Department aides, according to
records and interviews. Most of the eight fired U.S. attorneys were given the news by Deputy Attorney General
Paul
McNulty; by McNulty's chief of staff,
Michael Elston; or by
Michael Battle, another
senior Justice official, typically with no mention of any role by anyone else.
An original draft of Gonzales's delegation
of authority to Sampson and Goodling was so broad that it did not even require the two aides to obtain the final approval
of the attorney general before moving to dismiss other department officials, according to records obtained by National
Journal.
The department's Office of Legal Counsel feared that such an unconditional delegation of authority was
unconstitutional, the documents show. As a result, the original delegation was rewritten so that in its final form the order
required "any proposed appointments or removals of personnel" be "presented to the Attorney General... for
approval, and each appointment or removal shall be made in the name of the Attorney General."
The senior administration
official who had firsthand knowledge of the plan said that Gonzales and other Justice officials had a "clear obligation"
to disclose the plan's existence to the House and Senate Judiciary committees -- but the official said that, as far as he
knew, they had not done so. When the committees began to inquire into the firings of the U.S. attorneys, the official said,
Congress had a right to know that the firings were part of an ambitious effort to install administration loyalists throughout
the department. The official spoke on the condition that neither his position nor agency be identified, because he feared
retaliation from his superiors and the White House for disclosing aspects of the program.
Referring to the firings
of the U.S. attorneys and the broader plan targeting other Justice employees, the senior official said, "You cannot separate
one from the other. They were one and part of the same plan by the White House."
The official added, "The
president of the United States has said it was imperative for the attorney general, and the attorney general alone, to re-establish
trust with the Congress to keep his job … and you have, even after the president has said that, the attorney general
and his men stiffing Congress."
Once the order went into effect, the extent to which Sampson, Goodling, and the
White House played roles in the hiring and firing of various officials in the upper reaches of the Justice Department is unclear.
Sampson And Goodling
The roles that Sampson and Goodling played in removing U.S. attorneys and selecting new ones drew fire from both Democrats
and Republicans in Congress, who cited their youth, their scant prosecutorial experience, and their lack of law enforcement
credentials. Goodling was a 1999 graduate of televangelist Pat Robertson's Regent University School of Law
and had worked at the Republican National Committee as an opposition researcher. Sampson had tried one criminal case while
at Justice and had worked as a counsel for Sen. Orrin Hatch, R-Utah, and then for the White House counsel's
office before rapidly ascending to become Gonzales's chief of staff.
Sampson has testified before the Senate Judiciary
Committee about the U.S. attorney firings, but Goodling resigned on April 6, after her attorney asserted her Fifth Amendment
right against self-incrimination for declining to testify. The House Judiciary Committee voted on April 25 to grant Goodling
limited immunity from prosecution to compel her testimony about the U.S. attorney firings.
Justice Department spokesman
Brian Roehrkasse said that Gonzales's order "simply gives the chief of staff and the White House liaison
the authority to execute certain decisions related to the hiring and termination of some noncareer employees with -- as the
memo states -- the 'approval of the Attorney General.' The constitutional issues were explicitly resolved in the order."
Deputy White House Press Secretary Tony Fratto said it was "unremarkable" that Sampson
and Goodling would be involved in the hiring and firing of Justice Department officials.
"The job of a chief of
staff is to work with the White House liaison to hire qualified people," he said. "That is fairly standard practice
in any large Cabinet department or agency." Fratto added, "The White House has full authority in hiring and firing
presidential appointees" and "can choose to delegate that authority. There is no need for written authority to exercise
that power."
Asked why, if the process is routine, Gonzales issued the confidential order, Fratto responded, "I
don't know why anyone would force the need to write such a memo." He referred further inquiries to the Justice Department.
John Dowd, an attorney for Goodling, said in an interview that it was "absolutely untrue"
that his client was ever delegated the authority outlined in the confidential March 1, 2006 order signed by the attorney general.
"She had no authority," Dowd said, "My God, she was an assistant to the chief of staff to the attorney general.
She was an assistant to the assistant." An attorney for Sampson, Brad Berenson, said that his client
was not available for comment for this story.
Robert Litt, who served as a deputy assistant attorney
general under former President Bill Clinton, said in an interview that during the Clinton presidency "it
was routine that senior appointments in the department would be vetted by the White House. Appointees were often placed by
the White House." Such a process is typical under most presidents, Litt said, because they "want to ensure that
their administration's policies and priorities are carried out."
But Litt also called Gonzales's secret delegation
of authority to Sampson and Goodling unprecedented. It was distressing, he said, that many of the most sensitive appointments
at the highest levels of the Justice Department were to "be made by these two people with no law enforcement experience...
that this extraordinary authority was being delegated to these two young puppies," and apparently without much input
by more-experienced and less-partisan officials.
Even though the White House played a major role in filling Justice
Department positions before and during the Clinton administration, Litt said, "there was always a bit of tugging and
pulling" between the White House and career department officials in selecting top aides: "Typically, a deputy attorney
general might really like someone and the White House might not, or vice versa."
In the end, however, Litt and
current and former Justice Department officials said that a balance is often brokered between the policy and political imperatives
of an administration and the desire of career federal law enforcement officials to protect the integrity of the criminal-justice
process. When Gonzales delegated such authority, and in secret, to Sampson and Goodling, he risked tipping that balance, Litt
and other officials said.
Under the plan and delegation of the authority, even the second- and third-highest-ranking
political appointees in the Justice Department -- the deputy attorney general and the associate attorney general -- would
no longer have final authority to staff their own offices.
Justice Department records indicate that while the order
was being drafted, McNulty and other senior department officials were at times purposely kept out of the loop.
A correspondence
record from Gonzales's own files indicates that when Paul Corts, the Justice Department's assistant attorney
general for administration, transmitted a memo regarding the then-draft plan to Gonzales, information regarding the plan was
ordered to be withheld from McNulty. A "control sheet" of the department's Executive Secretariat, which tracks sensitive
records as they move among senior Justice officials, includes this notation regarding the transmission of the Corts memo to
Gonzales: "Per instructions received from JMD [the Justice Department's Management Division], ODAG [the office of the
Deputy Attorney General] is to bypassed on the package."
To give Sampson and Goodling hiring and firing authority,
the Justice Department first had to place that authority directly under Gonzales. The department published regulations in
the Federal Register on February 7, 2006, stating that the final authority would be reserved for the attorney general. In
the past, the deputy attorney general, the associate attorney general, and other senior Justice Department officials had been
able to staff their own offices.
Once Gonzales had the final authority, however, another barrier stood in the way:
The Office of Legal Counsel believed that an unconditional delegation of authority by Gonzales to his aides would be unconstitutional.
Corts so informed Gonzales in a February 24, 2006, memo: "The Office of Legal Counsel (OLC) advises that permitting the
Attorney General's delegates to approve [some] appointments … would be inconsistent" with the appointments clause
of the Constitution. The "excepting clause" of the Constitution requires the president alone to exercise the appointment
power, or his Cabinet officers, who are appointees themselves.
The draft was rewritten to address that concern, and
Gonzales on March 1, 2006, signed the final order, which read: "Under the authority of this delegation, any proposed
appointments or removals of personnel who are 'inferior officers' within the meaning of [the] Excepting Clause of the Constitution
shall be presented to the Attorney General... and each appointment or removal shall be made in the name of the Attorney General."
At the bottom of the delegation order, this note appeared, in all capital letters, referencing the Federal Register:
"INTERNAL ORDER-NOT PUBLISHED IN F.R."
Politics
And Perception
A senior Justice Department official, who did not know of Gonzales's delegation of authority
until contacted by National Journal, said that it posed a serious threat to the integrity of the criminal-justice
system because it gave Sampson, Goodling, and the White House control over the hiring of senior officials in the Justice Department's
Criminal Division, which oversees all politically sensitive public corruption cases, at the same time that they held authority
to hire and fire U.S. attorneys.
"If you are controlling who is going to be a U.S. attorney and who isn't going
to be,... firing them outside the traditional process... and the same people are deciding who are going to be their supervisors
back in Washington... there is too much of a potential for mischief, for abuse," the official said.
Even if there
is no interference or politicization of public corruption investigations, the same official said, "you are just going
to have people questioning every prosecutorial decision, when all of the people in place have been put there for political
reasons."
Typically, the assistant attorney general in charge of the Criminal Division has five deputies who oversee
political corruption cases and nearly all other federal criminal prosecutions. The assistant attorney general in charge of
the Criminal Division is a political appointee of the president and is subject to Senate confirmation. But two of the division's
five deputies are not subject to Senate confirmation. Under the order signed on March 1, 2006, their fate was delegated to
Sampson and Goodling.
Based on a review of the delegation order, the official said, the Criminal Division chief's principal
deputy, his counselor, any of his special assistants, and a score of other aides were also among those who could be fired
and replaced by Sampson and Goodling, and then subject to final approval by Gonzales.
"It would be an act of insanity
and, frankly, implausible that the attorney general would grant authority to Kyle [Sampson] and Monica Goodling to make these
decisions," the official said, "But it would be frightening if they were serving as proxies for the White House.
You do not want to allow for the possible politicization of your Criminal Division like that."
Three of the fired
U.S. attorneys have said that Republicans in Congress inappropriately approached them about politically sensitive investigations.
Testimony by two of the U.S. attorneys, Sampson's testimony, and documents made public by the House and Senate Judiciary committees
indicate that complaints by Republican lawmakers and White House officials may have played a role in the dismissal of two
of the U.S. attorneys. Four of the federal prosecutors were involved in politically sensitive investigations at the time of
their firings.
"What you have is U.S. attorneys saying they were being interfered with, people coming at them
trying to influence them inappropriately, and then being fired," said the senior Justice Department official. "If
we are learning now that the same people who are firing U.S. attorneys and replacing them with friendlier faces also were
doing the same with their supervisors, with the people who ran the Criminal Division, then that is very serious."
Gonzales
and Sampson both adamantly denied, in testimony before the Senate Judiciary Committee, that any U.S. attorneys were fired
to interfere with politically sensitive investigations.
But David Iglesias, the fired U.S. attorney
from New Mexico, testified before the Senate Judiciary Committee on March 6 that he felt improperly pressured by Republican
members of Congress regarding a then-ongoing criminal investigation under his supervision. Iglesias testified that Rep. Heather
Wilson, R-N.M., called him on October 16 to ask whether his office had returned sealed indictments against Democratic
officeholders alleged to have taken kickbacks in a courthouse construction project. At the time, Wilson was locked in a tight
race for re-election, and criminal charges against the Democrats would have aided her campaign. Wilson narrowly won re-election.
Ten days later after Wilson's call, Iglesias testified, he received a phone call from Sen. Pete Domenici,
R-N.M., a political mentor to Wilson, also inquiring about possible pending indictments. Domenici asked him, "Are they
going to be filed before November?" Iglesias testified. When Iglesias answered that no charges would be filed any time
soon, Domenici responded, "I'm sorry to hear that," and the line went dead.
"I felt sick afterward,"
Iglesias testified, "I felt leaned on. I felt pressured to get these matters moving."
Domenici and Wilson
have acknowledged making the calls but have said that they did not intend to influence Iglesias's handling of the kickback
investigation.
Gonzales testified before the Senate Judiciary Committee that Domenici called him after the November
2006 election and complained to him that Iglesias hadn't aggressively pursued voter-fraud allegations against Democrats in
New Mexico. Domenici also passed along similar complaints in conversations with President Bush and senior
White House adviser Karl Rove, and the complaints were relayed to Gonzales.
Not long after, both
Gonzales and Sampson have testified to the Senate Judiciary Committee, Iglesias's name was added, at the last minute, to the
list of U.S. attorneys slated to be fired that was being compiled by Sampson and the White House. Asked during his Senate
testimony whether Domenici's complaints played a role in Iglesias's firing, Sampson said that Deputy Attorney General McNulty
commented to him, "Senator Domenici won't mind if he stays on the list."
A second ousted U.S. attorney,
John McKay of Washington state, testified that the-then chief of staff to Rep. Doc Hastings,
R-Wash., called him to inquire about potential voter-fraud charges against Democrats. Later, during an interview about a possible
appointment as a federal judge, then-White House counsel Harriet Miers asked McKay why he had "mishandled"
the charges concerning the governor's race, McKay testified.
Most recently, it was reported that a senior aide to Rep. Rick Renzi, R-Ariz., telephoned Arizona's then-U.S. Attorney Paul Charlton, to inquire about a criminal investigation into allegations that Renzi used his office to arrange a land deal that benefited
a former business partner. The former partner then paid Renzi $200,000. After the FBI raided his wife's insurance business
on April 19, and it was reported that Renzi himself was a target of the probe, Renzi temporarily stepped down from his seats on three House committees. Renzi
has denied any wrongdoing, saying that the $200,000 payment from his former business partner was to settle a debt unrelated
to the actions Renzi had taken to arrange the land deal. Renzi has also said that his aide called Charlton's office simply
to inquire about whether Renzi was going to be criminally charged.
Read the rest at http://news.nationaljournal.com/articles/070510nj1.htm
