Toward the end of his long day testifying before the Senate Judiciary Committee on March 29, Kyle Sampson offered this rueful judgment: “Looking back on all of this, I wish we could do it over again. . . . In hindsight, I wish the department hadn’t gone down this road at all.” The former Justice Department lawyer was referring to the removal of eight U.S. attorneys, which ignited a political firestorm that has yet to run its course. As the manager of the process that led to the firings, Sampson told the senators earlier in the day that he felt “honor-bound to accept my share of the blame.” He resigned on March 12.
The question that Sampson’s testimony invites is whether Attorney General Alberto Gonzales, whom Sampson served as chief of staff and who, with former White House counsel Harriet Miers, was ultimately responsible for deciding the fate of those eight U.S. attorneys, will likewise wish the department had declined the disastrous road taken–and even decide to resign.
In his opening statement, Sampson described the process he ran and the decisions it yielded. Problems ensued when “members of Congress began to raise questions about these removals.” Justice’s response was “badly mishandled.” There were “poor judgments, poor word choices, and poor communication and preparation for the department’s testimony before Congress.” In sum, the decisions to remove the U.S. attorneys were “properly made but poorly explained. This is a benign rather than sinister story.”
The case has yet to be made that the story is sinister–in the sense that the removals were intended to thwart or hasten a given investigation or prosecution. And Sampson did testify–under oath, by the way–that, so far as he knew, none of the removals was undertaken with such illicit purpose, notwithstanding any appearance to the contrary.
But the problem that the probing by senators on both sides of the aisle laid bare is that the process was seriously flawed. The decisions were not sufficiently considered. Nor were their political consequences adequately assessed. Alabama Republican Jeff Sessions, a member of the Judiciary Committee and a former U.S. attorney, faulted “the team at Justice” for its “lack of comprehension” that removing and replacing U.S. attorneys would raise “sensitive and difficult” issues. Gonzales is on the hot seat because the process was under his authority and thus subject to his management; and because, too, Gonzales, as attorney general (and indeed one who served previously as White House counsel), must beware of actions that, however compelling they may seem at the time, eventually weaken a presidency.
The idea of replacing U.S. attorneys originated in the White House–presumably with the okay of the president–after the 2004 election and was delegated to the attorney general, who has supervisory authority over U.S. attorneys. As an associate White House counsel from 2001 to 2003, Sampson had been involved in the selection of U.S. attorneys (nominated by the president and subject to confirmation by the Senate, there are 93 in all). Gonzales gave the project to Sampson, whose various jobs in the administration (he was also a staffer to Attorney General John Ashcroft), made him an understandable choice.
There was an initial decision to make: whether to remove all 93 U.S. attorneys or some subset. Figuring (wisely) that removal of all–an action without precedent save at the very beginning of a presidency–would be too much to attempt, Sampson concluded that only those who had completed their four-year terms should be considered, and he estimated that about 15 to 20 percent of the 93 would be removed–roughly 14 to 18. Of course, not that many were let go. But the number removed still was unusually large. And given expectations by some U.S. attorneys that they may hold office beyond four years (though in fact they serve at the president’s pleasure, and can be removed for any reason or none), and given, too, the Senate’s historic role in recommending U.S. attorneys, Sampson, as his emails show, was aware of objections that could arise both among U.S. attorneys and from the Senate.
Sampson discussed with the committee the criteria he used to evaluate U.S. attorneys. Notwithstanding excellent performance in other respects, a U.S. attorney failing to support the law enforcement priorities of the president and the attorney general might well become a removal candidate. Sampson kept a file in the lower right-hand drawer of his desk. It held lists of removal candidates, notes, and things sent to him by others in the department. He described himself as “an aggregator of information.” The process he managed was “not scientific, nor was it extensively documented.” He added: “That is the nature of presidential personnel decisions.” No senator asked whether removal of a U.S. attorney, as opposed to his selection, might entail some documentation of the decisions made, especially in anticipation of public discussion of the validity of a given removal.
According to Sampson, Gonzales was involved in the process, but not deeply. He discussed matters at least five times with Sampson, and ultimately signed off on the eight removals, neither adding to nor subtracting from the final list. Sampson testified that Gonzales’s interest seemed primarily procedural–he wanted to make sure Sampson solicited the views of senior department officials. The Justice Department seconded this view of Gonzales’s role in a statement it issued as Sampson’s testimony came to an end. The statement characterized Gonzales’s involvement this way: “He directed Mr. Sampson to lead the evaluation process, was kept aware of some conversations during the process, and . . . he approved the recommendations to seek the resignations of select U.S. attorneys.”
By Sampson’s account, Gonzales apparently did not discuss with him the evaluation criteria or their application in specific cases. Nor, it seems, did Gonzales ask how a given removal might be perceived–Sampson in fact apologized for “a failure on my part” to consider perception in instances where the removed U.S. attorney was pursuing investigations or prosecution of Republicans. It remains a question whether Gonzales asked how the removals might be received in Congress, even by allies–Republican senator Jon Kyl of Arizona spoke during Sampson’s hearing of his “shock and dismay” upon learning of the removal of the U.S. attorney from the District of Arizona and said he asked the attorney general to explain the reasoning behind it.
Likewise, it is unknown whether Gonzales asked how the removals might affect the president’s ability to govern late in a second term with Democrats in control of both houses and prepared to use virtually anything to ratchet up their attacks on the administration. Or whether an aggravated Congress might, in response to the removals, pass legislation–as it is now doing, overwhelmingly–that would restore judicial authority to name interim U.S. attorneys, a power (rightly, because it belongs with the executive) taken away from the courts in legislation enacted just a year ago. Amazingly, an administration committed to the preservation of executive power is now haplessly watching a legislative victory for that authority (however small) being turned into a loss.
Questions like those might have led to consideration of the fundamental one of whether the removals should have been undertaken at all. It could have been argued that the administration has other, more compelling labors, such as in Iraq, that will require what little political capital the White House has at its disposal. On April 17, the attorney general is scheduled to appear before the committee.
Terry Eastland is publisher of THE WEEKLY STANDARD.
