A Few Angry Lawyers

On Capitol Hill, the fired U.S. attorneys dish, and dish some more.

Former U.S. Attorney David Iglesias 

The Department of Justice can fire a U.S. attorney and expect him or her to go quietly. The federal prosecutors are appointed by the president, after all, and serve at his pleasure. But fire a bunch of them at once and start shredding their reputations—that’s dangerous. Today, four of the Bush administration’s formerly loyal U.S. attorneys showed up to testify before Congress and raised the lid on DOJ and Republicans in office. All sorts of things crawled out. And after years of living in one-party Washington—and logging hours at snoozer Republican-controlled committee hearings—I confess, it was a thrill to watch. Hooray for divided government!

David Iglesias, a former U.S. attorney from New Mexico, was the star witness at this morning’s Senate hearing about the firing of eight—or now maybe nine—U.S. attorneys. Iglesias was square-jawed and resolute, so much so that Sen. Chuck Schumer, D-N.Y., didn’t really need to mention that the former prosecutor and U.S. Navy lawyer is a partial model for the Tom Cruise character in A Few Good Men (though, of course, Schumer did). Iglesias gave an account of a phone call he received from Sen. Pete Domenici, Republican of New Mexico, before the November election:

1) Domenici called Iglesias in late October, at his house—the first time in 10 years as a prosecutor that he’d taken a call from a member of Congress on his home line. 2) The senator wanted to talk about a pending corruption investigation of government officials who just happened to be Democrats—an investigation that, Iglesias said, was a “huge battle” in Republican Rep. Heather Wilson’s tight race for re-election. Domenici asked Iglesias, “Are these charges going to be filed before November?” Iglesias said he didn’t think so. 3) Domenici responded, “I’m very sorry to hear that.” And then the line went dead. Domenici had hung up on Iglesias. “I felt sick afterward,” the former prosecutor said. “I felt leaned on. I felt pressure to get these matters moving.”

Domenici has denied pressuring Iglesias. As for Wilson, she had called Iglesias two weeks earlier. She said this week that she asked Iglesias about allegations from a constituent that he “was intentionally delaying corruption prosecutions.” Iglesias remembers otherwise. The phone call wasn’t about allegations of a delay, he testified. Wilson “wanted to talk about sealed indictments” he might have had in the corruption case. Iglesias listened to her questions, and “red flags went up inside my head.” It was as if Wilson had asked a government nuclear scientist “about secret launch codes.”

If the calls from Domenici and Wilson were so alarming, why didn’t Iglesias report them to DOJ? Sen. Arlen Specter, R-Pa., wanted to know. Ethical rules bar members of Congress from asking prosecutors about pending investigations, and DOJ guidelines apparently instruct prosecutors to report such contacts. Iglesias said he knew that but at the time felt “conflicted” about his competing loyalties. Pete Domenici was his longtime mentor. Heather Wilson was his longtime ally. He didn’t want to turn on them.

“What made you change your mind?” Specter asked. It was the senator’s least effective moment as the Bush administration’s defender. “I’ve always been trained that loyalty is a two-way street,” Iglesias answered. “I started thinking: Why am I protecting these people who not only did me wrong but did wrong to the system for appointing U.S. attorneys?”

Iglesias and the three other U.S. attorneys who appeared with him have taken pains to make clear that they didn’t ask to testify. They waited to be subpoenaed by a subcommittee in the House of Representatives, which also heard their testimony today. The former USAs acknowledged that they served “at the pleasure of the president” and could be fired “at any time and for any reason.” Except that, as far as they knew, no president had ever before fired a group of U.S. attorneys in the middle of his term. And “any reason” isn’t supposed to include what felt to some of them like retaliation, after attempts to meddle with ongoing investigations. (John McKay, a former U.S. attorney from the western district of Washington, told a story like Iglesias’s of a phone call from the former chief of staff of a Washington elected official, about a pending investigation relating to voter fraud.)

Nor did the ex-U.S. attorneys cotton to being threatened by DOJ—as they apparently were. H.E. “Bud” Cummins III, ex-U.S. attorney of the eastern district of Arkansas, brought to the hearing an e-mail he’d written to five of his fired compatriots on Feb. 20, two days after receiving a call from Mike Elston in the deputy attorney general’s office. Cummins wrote that the essence of Elston’s message was that DOJ “would feel forced to somehow pull their gloves off,” if the fired U.S. attorneys continued to talk to the press or fuel a congressional investigation. “I was tempted to challenge him and say something movie-like such as ‘are you threatening ME????’” Cummins wrote. Also, he wrote that Elston “reacted quite a bit to the idea of anyone voluntarily testifying [before Congress] and it seemed clear that they would see that as a major escalation of the conflict meriting some kind of unspecified form of retaliation.”

This e-mail, which Schumer read gleefully into the record, did not sit well with the senators. At the start of the hearing, Specter had floated the idea that any effort to “threaten someone and stop them testifying” raised the specter of “obstruction of justice.” As a basis for criminal charges, that’s probably a stretch. Still, it all made for great theater.

The Republican senators came up with only a scattershot defense. Specter questioned whether the phone calls Iglesias and McKay received from their home state politicians were actually threatening. This mostly gave the former prosecutors an opportunity to elaborate. Sen. John Kyl of Arizona complained that since only Cummins has been replaced by a Bush favorite—J. Timothy Griffin, who used to work for Karl Rove—there was no evidence that the administration’s desire to install political cronies was behind the firings. Jeff Sessions of Alabama did himself no favors by attacking Carol Lam, a former U.S. attorney from the southern district of California, for her office’s low number of gun cases. “It’s a zero-sum game,” Lam snapped back, citing her efforts to go after, um, big-time border troubles like drug and illegal-immigrant smugglers. Lindsey Graham of South Carolina reminded the ex-USAs that they’d been in office since 2001 and 2002. “Those are long stints,” he said, adding that he believes in “cycling people through.” Maybe so, but that hasn’t been the Bush administration’s explanation for the firings.

Perhaps the most astonishing moment of the hearings was when it came out that the Department of Justice was dumb enough to accuse Iglesias of “absentee landlordism” because he had to take 40 days of annual duty in the naval reserve. “It was ironic,” Iglesias said of that misstep, since it’s the Department of Justice that enforces the law that forbids job-based discrimination for activities related to military service.

The firings look terrible. They could get Domenici and Wilson into trouble. They’re a headache for a beleaguered administration. They’ve exposed a bad change to the appointment process for U.S. attorneys that was slipped into the Patriot Act reauthorization last year. They’re prompting comparisons to the Saturday Night Massacre firing of special prosecutor Archibald Cox during Watergate. And they matter most because of their potential effect on the U.S. attorneys still in office. As Lam explained, the administration’s political interference sends a warning signal to prosecutors that making the wrong people mad, by prosecuting or declining to prosecute, can cost them their jobs. One of the U.S. attorneys still in office might decide to “try to play it safe,’” Lam said. “And I don’t think that’s in the best interests of our country.”