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September 29, 2008 6:00 PM

Special Prosecutor Appointed to Investigate U.S. Attorney Firings

Posted by Ed Shanahan

By Sue Reisinger, Corporate Counsel

Attorney General Michael Mukasey today appointed Nora Dannehy, the acting U.S. attorney in Connecticut, as the special prosecutor who will conduct a criminal investigation into the unprecedented ouster of nine U.S. attorneys in 2006. Specifically, Dannehy will look at whether any removal was intended to influence cases being prosecuted at the time, and whether any government witness gave false testimony about the removals.

Mukasey's action comes after the department's release earlier today of a 358-page report calling the removal process "flawed and arbitrary." Although it does not refer the case to a grand jury, the report says investigators found "significant evidence" that political and partisan considerations were factors in the oustings, especially in the case of David Iglesias, the former U.S. attorney in New Mexico, and recommends appointing a special prosecutor with subpoena power to further investigate possible criminal activity. (Download Justice report.)

Additionally, the investigation will be charged with filling in "gaps" due to lack of cooperation of some witnesses, including former White House officials Karl Rove, Harriet Miers, and William Kelley, former Justice White House liaison Monica Goodling, Senator Pete Domenici, and his chief of staff. "[T]he White House would not provide us internal documents related to the removals of the U.S. attorneys," the report notes; the appendix includes letters from the White House citing the need for confidentiality for advisers to the president.

The report primarily blames the fiasco on then-attorney general Alberto Gonzales and then-deputy attorney general Paul McNulty for "abdicating their responsibility to adequately oversee the process." It also points to Kyle Sampson, then chief of staff to Gonzales, as one who "bears significant responsibility" for the process. E-mails showed that Sampson had extensive communications with former White House counsel Miers about the changes.

A statement released today by Sampson's lawyer, Bradford Berenson of Sidley Austin, says, "Mr. Sampson at all times cooperated fully and voluntarily with any and all investigators, without preconditions, and provided his best, most honest and complete recollection of these events.  He has behaved with honor and dignity throughout this difficult episode and has never attempted to shirk his responsibility for problems in the U.S. Attorney firings."

The report "makes clear that Judge Gonzales engaged in no wrongful or improper conduct while recognizing, as he has acknowledged many times, that the process for evaluating U.S. attorney performance in this instance was flawed," Gonzales's lawyer, White & Case partner George Terwilliger III, told sibling publication Legal Times.

The investigation also found that Gonzales, McNulty, Sampson, and others "are responsible for failing to provide accurate and truthful statements about the removals and their role in the process." Gonzales, McNulty, and Sampson resigned in 2007 in the wake of a congressional and public outcry over the removals. Gonzales has been making speaking engagements; McNulty joined Baker & McKenzie in Washington as a partner; Sampson is a partner at Hunton & Williams in Washington. McNulty did not return calls for comment.

In appointing Dannehy to further investigate, Mukasey said it was clear that the process "at a minimum…was haphazard, arbitrary, and unprofessional, and that the way in which the Justice Department handled those removals and the resulting public controversy was profoundly lacking." Mukasey noted that an administration is entitled to remove U.S. attorneys, who are presidential appointees, for any reason. Usually U.S. attorneys are allowed to resign when a new administration arrives. Mukasey said leaders at Justice "owed it to those who served the country to treat their careers and reputations with appropriate care and dignity…and owed it to the American people they served to conduct the public's business in a deliberate and professional manner." Then he added: "The department failed on both scores."

Besides Iglesias, also removed were Todd Graves, Western District of Missouri; H.E. "Bud" Cummins, Eastern District of Arkansas; Daniel Bogden, Nevada; Paul Charlton, Arizona; John McKay, Western District of Washington; Carol Lam, Southern District of California; Margaret Chiara, Western District of Michigan; and Kevin Ryan, Northern District of California. Mukasey concluded, "I hope the report provides a measure of relief to those U.S. attorneys whose reputations were unfairly tainted by the removals and their aftermath."

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