Facing criticism on Capitol Hill over the firings of eight US attorneys, Attorney General Alberto Gonzales acknowledged this week that "mistakes were made." But one of them was not a failure to anticipate controversy.
"Prepare to Withstand Political Upheaval" was Step 3 of a five-part plan to carry out the firings, outlined by Mr. Gonzales's chief of staff in a December e-mail three days before the dismissals. "US Attorneys desiring to save their jobs ... likely will make efforts to preserve themselves in office," wrote D. Kyle Sampson to the White House on Dec. 4. "We should expect these efforts to be strenuous."
So far, Mr. Sampson himself is the first casualty of the ensuing "political upheaval," resigning his post on Monday. But some in Congress are calling for the attorney general to step down as well.
E-mail records and documents the Justice Department released to Congress Tuesday to clarify why the US attorneys were fired – and what role the White House may have played – have only further stoked lawmaker ire. At first, lawmakers mainly wanted to know if the firings were a political purge involving the White House – and if a little-noted provision added last year to the USA Patriot Act at the request of the Justice Department was put there to facilitate it.
Now, members on both sides of the aisle also want to know if the attorney general and other officials deliberately misled them in briefings and testimony about the fired US attorneys.
"I boiled over when I read information I had not been told," said Sen. Patrick Leahy (D) of Vermont, chairman of the Senate Judiciary Committee, referring to the documents on the firings. "I don't want briefings any more. I didn't get answers. I now want open hearings, under oath."
Gonzales has promised to cooperate with the Senate Judiciary investigation. Still, when the panel meets Thursday, it will decide whether to authorize subpoenas for five Justice Department officials to testify under oath, in the case that cooperation is not forthcoming.
Senator Leahy and the panel's ranking Republican, Sen. Arlen Specter of Pennsylvania, are also requesting appearances by three White House officials: Deputy Chief of Staff Karl Rove, former White House Counsel Harriet Miers, and her deputy White House counsel, William Kelley, who are cited in released documents. In Mexico with President Bush, White House counselor Dan Bartlett said Tuesday it is "highly unlikely" that a member of the White House staff would testify publicly. "But that doesn't mean we won't find other ways to try to share that information," he added.
"Make no mistake about it: This has become as serious as it gets," says Sen. Charles Schumer (D) of New York, who chaired two previous Senate hearings over the firings. "To invoke [executive] privilege and have a lengthy court proceeding will only delay, not prevent, the facts from getting out." Republicans note that Senator Schumer also chairs the campaign arm of the Senate Democratic caucus.
One of the first issues prompted by investigations in the House and Senate is whether it's wrong – or even unusual – for an attorney general to replace US attorneys for political reasons.
No one questions whether the president or his attorney general has a right to replace US attorneys, who are the top federal prosecutors. Presidents Ronald Reagan and Jimmy Carter did so gradually, letting four-year terms expire. Presidents George H.W. Bush and Bill Clinton made changes at the start of their terms.
What raises controversy is any appearance that replacements are politically motivated. When Mr. Clinton fired all 93 US attorneys at once in March 1993, critics saw a bid to derail a federal prosecution against Rep. Dan Rostenkowski (D) of Illinois, the powerful chair of the House Ways and Means Committee. It didn't. Mr. Rostenkowski was convicted of mail fraud and later pardoned by Clinton.
"It wasn't a scandal; it was a kerfuffle," says John Pitney, a professor of government at Claremont McKenna College in Claremont, Calif. "That's an example of a story that looked as if it might have something behind it, and it didn't."
But the firing of a critical mass of US attorneys midterm is unusual, therefore raising more questions.
Since 1981, only 54 US attorneys have not filled out their terms, according to a recent Congressional Research Service study. Of those, only eight appeared to be firings for cause. Reasons cited for dismissal in these eight cases include grabbing a TV reporter by the throat, disclosing information on an indictment, perjury, and biting a topless dancer on the arm after losing a big drug case, according to the CRS report.
"There is no doubt...that the Attorney General has the authority to replace United States attorneys. There is a serious question if they are replaced for improper motives," Senator Specter said Tuesday on the Senate floor.
When the scandal broke, Gonzales and other Justice Department officials assured lawmakers that the firings were over performance, not politics, and that the White had not been directly involved. But e-mails released this week show several White House officials to have been deeply engaged in the firing decisions.
A system Sampson used to evaluate US attorneys included whether they "exhibited loyalty to the president and attorney general" or "chafed against administration initiatives." One top-rated US attorney, David Iglesias of the District of New Mexico, was added to the termination list after complaints from Sen. Pete Domenici (R) of New Mexico. Mr. Iglesias testified last week that Senator Domenici had urged him to step up prosecution of corruption charges against Democrats before last year's election.
The released documents also reveal that the White House did not plan to use its new powers under the USA Patriot Act to bypass Senate confirmation for those nominated to replace the eight fired US attorneys, as some lawmakers had feared.