The Rubber Stamp

Marty Lederman

"[T]his was a process that was ongoing that I did not have transparency into."

That says it all, no?

The transcript of the Attorney General's hearing (in fifteen parts) begins here. Not surprisingly, the gist of the story is that when he recommended that the President remove the U.S. Attorneys, the Attorney General was not surprised to see some of the names on the list -- because he had previously heard complaints about them, including from Senator Domenici about David Iglesias -- but he didn't really know, nor inquire into, why these particular high-ranking officials were singled out for removal. Indeed, he had no idea who was responsible for putting any one of the names on the list. (And according to Senator Feinstein's account of Kyle Sampson's testimony, it wasn't Sampson, who described himself as merely "the aggregator." Nor was it Mike Battle, director of the Executive Office of the United States Attorneys, who said in an interview with the Committee, "I had no input. Nobody asked me for my input.")

[UPDATE: I belatedly just noticed Dahlia Lithwick's superlative take on Slate. A must-read. Samples: "How gloriously mechanical: The 'consensus judgments of the senior leadership' are fed to the 'aggregator,' who in turn passes them along to the AG who, as he claims, made a final decision without reviewing any criteria for the firing or any written document. It seems that at no point in this 'process' or 'project' did any human brain fire an actual neuron that triggered the message to terminate an actual U.S. attorney. . . . Those of us who arrived today thinking that Gonzales had some sort of brilliant master plan for winning over the judiciary committee are puzzled by the AG's strategy. You can't help but wonder what condition he was in last month before he started preparing full time." Also, check out Dahlia's description of what perhaps was substantively the most important exchange of the day, the one that actually has some explanatory force: Senator Whitehouse's comparison of the Clinton and Bush DOJ protocols for appropriate contacts between the White House and DOJ (with graphics!).]

Other highlights, such as they are:

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.

* * * *

FEINGOLD: 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.

* * * *

DURBIN: Did you ever have a conversation, after the appointment of Patrick Fitzgerald as the special counsel to investigate the White House over the Valerie Plame incident, with either the president or Mr. Rove about the removal of Patrick Fitzgerald?

GONZALES: Senator, I believe the answer to that is no.

DURBIN: And can I ask you about the other U.S. attorneys that were removed? Did you ever have a conversation with Karl Rove about the removal of David Iglesias?

GONZALES: Senator, I recall a conversation with Mr. Rove, but it wasn't a recommendation or a discussion about removal of Mr. Iglesias. But there was a discussion that I recall Mr. Rove had with me about voter fraud cases in three district, including New Mexico, which, of course, Mr. Iglesias is the United States attorney.

DURBIN: And what did Karl Rove say to you?

GONZALES: Senator, my recollection of the conversation was basically, "I've heard complaints about voter fraud prosecutions or lack of prosecutions." And again, I could be -- I'm paraphrasing. I don't recall precisely what he said, but it was general about voter fraud prosecutions, voter fraud cases in three districts including New Mexico.

DURBIN: And there was no conclusion to that conversation about the fate of Mr. Iglesias?

GONZALES: Senator, I believe that I communicated this information to Mr. Sampson, but I don't remember or recall what happened after that.

And so, we still do not know -- nor does the Attorney General himself -- exactly how the names of any of the U.S. Attorneys found their way onto the unadorned list in Kyle Sampson's desk drawer. In his written statement, the Attorney General said that he wanted to make sure "the Congress and the American people can be 100 percent assured of the facts." That's a worthy objective, of course. And because officials in the White House had significant involvement in the creation and development of the list that was presented to the Attorney General, Congress would need to have full disclosure of communications within the White House in order to be "100 percent assured of the facts" that led to the removals.

The President ordinarily does not assert Executive privilege without a recommendation to that effect from the Attorney General. If the Attorney General genuinely wihes to ensure that Congress and the public "can be 100 percent assured of the facts," will he recommend to the President that he assert Executive privilege in order to withhold communications within the White House (and in RNC databases) that would shed light on those facts?
Posted 5:47 AM by Marty Lederman [link]