Thank you for sharing!

Your article was successfully shared with the contacts you provided.
WASHINGTON � When William Moschella sat down before a House subcommittee last week to discuss the firings of seven U.S. attorneys in December, he was in full apology mode. “In hindsight,” said Moschella, a senior Justice Department official, “perhaps this situation could have been handled better.” What could be called the understatement of the week did little to help Moschella’s cause. In fact, things got worse from there. Within moments, Moschella was on the offensive, offering specific and personal critiques of each individual U.S. attorney subpoenaed by Congress: Carol Lam of the Southern District of California, David Iglesias of New Mexico, John McKay of the Western District of Washington, Daniel Bogden of Nevada, and Paul Charlton of Arizona. It was an uncomfortable � and perhaps unprecedented � airing of private personnel matters. Granted, U.S. attorneys are “at-will” employees who serve at the pleasure of the president and can be fired without cause, yet even some of the administration’s staunchest supporters were embarrassed at the breach of decorum. “They have the right to fire them; they do not have the right to smear them,” says Joseph DiGenova, a conservative commentator who was U.S. attorney for the District of Columbia during the Reagan administration. “Everybody involved in it at the Justice Department and White House should be taken to the woodshed. This is really a pathetic way of running government.” Other former U.S. attorneys, all Republicans, said they were “stunned” or “flummoxed” or found the way the firings were handled “insulting.” “It is unfortunate that the department felt the need to attack the performance of these people,” says Thomas Heffelfinger, who served as U.S. attorney in Minnesota from 2001 until last year. “It wasn’t necessary and it wasn’t warranted.” Of course, the U.S. attorney’s job is inherently political; in the past, however, departures were handled with considerably more tact. “It was handled discreetly, it was handled professionally, and people were given every opportunity to have a soft landing,” says Mark Corallo, who was Justice Department spokesman under then-Attorney General John Ashcroft. “These are people who worked hard in the pursuit of justice. To go out and trash their reputations � it’s galling.” By the end of last week, some of the most conservative Republican senators were publicly assailing the department’s handling of the matter. Pennsylvania’s Arlen Specter, a moderate, even suggested that Attorney General Alberto Gonzales might have to step down. And in an about-face, Gonzales said on Thursday that he would support a change in the law that would limit the attorney general’s ability to appoint interim U.S. attorneys. “Regardless of the substance of the dismissals, it was so poorly handled that one has to question the leadership at the department,” Corallo says. “Was anybody awake? Was anyone paying attention?” When Moschella appeared before the House on Tuesday, the principal associate deputy attorney general had already been backed into a corner by his own bosses. The Justice Department had drawn a spate of media attention to the firings by dismissing all seven prosecutors � each one a George W. Bush appointee � in a single day in December. At the time, none of the attorneys was given any reason for his dismissal. When Democrats in Congress began to make a political issue of the firings, Deputy Attorney General Paul McNulty responded with an explanation that only made things worse, appearing to question the competence of the prosecutors by calling their firings “performance-related.” McNulty’s assessment, delivered to the Senate Judiciary Committee in February, was contradicted by the Justice Department’s own internal evaluations of the prosecutors � and a chorus of praise by judges and other officials in law enforcement. That left Moschella with some explaining to do. And explain away he did, trying to clarify McNulty’s charge by saying that what had been broadly stated as performance issues actually included “policy, priorities, and management.” Then, with the five former U.S. attorneys sitting just a few feet behind him, Moschella outlined the case against each one, listing reasons for the dismissals that several of the prosecutors later said they were hearing for the first time.
‘These are people who worked hard in the pursuit of justice. To go out and trash their reputations — it’s galling.’

Mark Corallo former Justice Department spokesman

“I did not seek this forum, and did not speak out publicly until the department said my service suffered from ‘performance-related problems,’ ” McKay told members of the House Judiciary Committee’s Administrative and Commercial Law Subcommittee, which held its hearing Tuesday. Was it a circular firing squad? “That’s a good way to put it,” says Theodore Olson, who served as the Justice Department’s solicitor general from 2001 to 2004. EXPLAINING THE PURGE While it may have been a very tough week at Justice Department headquarters, it’s been among the most difficult in recent memory for the 93 U.S. attorneys. The chief law enforcers in their districts, U.S. attorneys pride themselves on a strong and, for political appointees, relatively independent culture. “We get to know each other pretty closely. It’s a pretty tightknit crew,” says James Vines, a partner in D.C.’s King & Spalding who was the U.S. attorney for the Middle District of Tennessee from 2002 to 2006. U.S. attorneys meet annually at a national conference and work together on a number of advisory panels that shape Justice Department policy on everything from Indian affairs to narcotics. They have their own alumni association, the National Association of Former United States Attorneys. That sense of identity may help explain why so many are speaking out so publicly about the Justice Department’s latest embarrassment. “If they were going to ask for the resignations of people, they should have given reasons, just for pure tact and humanity,” says John Smietanka, who was a top deputy to former Attorney General William Barr in the early 1990s and U.S. attorney in western Michigan before that. The Justice Department has since acknowledged that it was a mistake not to personally inform the U.S. attorneys of their shortcomings. But that didn’t stop Moschella from laying out publicly what was never explained privately to each prosecutor. For Lam, who had successfully prosecuted former Rep. Randy “Duke” Cunningham, R-Calif., on public corruption charges, it was her record on firearms and immigration prosecutions. “Her gun prosecutions were at the bottom of the list, quite frankly. . . . Her immigration numbers in a border district just didn’t stack up,” Moschella told the subcommittee. Lam replied that fully half her office’s resources were devoted to border crimes and that the number of immigration prosecutions had fallen because she was carrying out a Justice Department mandate to seek lengthier sentences � which meant going to trial more often. For Bogden, Moschella said there was a “general sense” at Justice that, given the importance of Las Vegas, the department was interested in seeing “new vigor and new energy in the office, to take it to the next level,” although he conceded he could point to no “particular deficiency.” Said Bogden during a later round of subcommittee questioning, “Finally, today I had an explanation as to why I was asked to step down.” Iglesias’ problem, Moschella said, was “a general sense that the district was in need of greater leadership,” while Charlton’s problems were “more in the policy category” � taping confessions in contravention of department policy and pushing for a plea agreement in a case where Main Justice had wanted the death penalty, a decision Moschella called “nondelegable.” And McKay, Moschella said, devoted too much effort to a regional law enforcement information-sharing network with the Naval Criminal Investigative Service, known as LINX. McKay spent a “considerable amount of time” pushing the plan, said Moschella, adding that McKay wanted the “Justice Department to give our Good Housekeeping seal of approval for it.” McKay told the committee that he had been given the Navy’s highest award for the program. Moschella’s explanations, however, like his mea culpa, may only have deepened skepticism of the department’s motives. “I don’t find the reasons persuasive,” says Mary Jo White, the U.S. attorney for the Southern District of New York from 1993 to 2002. “Rather, I think it looks like a decision to replace very well-regarded U.S. attorneys to clear the way for someone else to have the job.” ENDING AN IMBROGLIO In fact, that is exactly what Bogden and Charlton say they were told in phone calls with the Justice Department’s No. 3, William Mercer, when they asked about their dismissals. And it’s exactly what former Arkansas U.S. Attorney H.E. “Bud” Cummins III says he was told when he was asked to resign last summer. Asked to explain the discrepancy between Mercer’s explanation and the “performance” problems that the Justice Department has since cited, spokesman Brian Roehrkasse says Mercer was trying to break the news gently. “Perhaps his approach was focused too much on being empathetic and we should have been more specific,” Roehrkasse says. The Justice Department will have more opportunity to clarify � or, if the pattern holds, to muddy its message � in the coming weeks as Congress continues to probe the reasons for the firings. Democrats smell a story that could have a particularly long and juicy shelf life. And a prominent Republican, veteran Sen. Pete Domenici, N.M., has become embroiled in the controversy after Iglesias said Domenici had telephoned him to inquire whether an indictment in a public corruption case involving New Mexico Democrats would be brought before last November’s elections. Domenici has admitted making the call, but said he was not trying to pressure the prosecutor. As the scrutiny intensifies, the Justice Department seems to have just two options, say those who’ve worked at the department: continue to criticize the fired prosecutors or admit what many suspect was the motivation for demanding the resignations in the first place � to burnish the credentials of young Republican stars by giving them at least a two-year run as U.S. attorneys. That, however, would mean conceding that politics was a large factor in the decision, something the department has strenuously tried to avoid. Ending the current scandal would also allow the Justice Department’s leadership to begin repairing the damage the scandal has caused. “One of the reasons this has become such an imbroglio is, people who have been a part of that culture are offended,” says Timothy Coleman, a former federal prosecutor who worked as a top Justice Department aide under Ashcroft. “I think there are folks on the Hill and part of the extended family that have a sense that the norms of the institution have not been respected in all this.” Jason McLure and T.R. Goldman are reporters with Legal Times, a Recorder affiliate based in Washington, D.C.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.