Washington Post / Congressional Quarterly -- April 19, 2007 GONZALES TESTIFIES BEFORE SENATE [ JUDICIARY COMMITTEE ] http://www.washingtonpost.com/wp-dyn/content/ article/2007/04/19/AR2007041902035_pf.html http://www.washingtonpost.com/wp-dyn/content/ article/2007/04/19/AR2007041902130_pf.html http://www.washingtonpost.com/wp-dyn/content/ article/2007/04/19/AR2007041902234_pf.html CQ Transcripts Wire -- Thursday, April 19, 2007; 6:31 PM [ PART I ] SEN. PATRICK J. LEAHY, D-VT. CHAIRMAN: Good morning. This week, like all Americans, we join in mourning the tragic killings at Virginia Tech on Monday. The innocent lives of students and -- before we start, I noticed the people holding outside. A lot of people stood in line a long time to be here. This is an important hearing. I would ask the people to be polite enough not to hold up something and block those who have waited in line, waited to hold this hearing. Certainly, anybody can be here. But I will not allow anyone, no matter what positions they may be taking, to block the view of others who have a legitimate right to be here. As I said, we join in mourning the tragic killings at Virginia Tech. The innocent lives of students and professors are a terrible loss for their families, friends and their community. It affects us all. We honor them, we mourn their loss. My family and I hold them in our prayers and our thoughts. And I expect in the days ahead, as we learn more about what happened how it happened and perhaps why it happened, we'll have debate and discussion, perhaps proposals to consider. I look forward to working with the Department of Justice, with Regina Schofield, the assistant attorney general for the Office of Justice Programs. The attorney general's offered briefings and others to make improvements that can increase the safety and security of our children and grandchildren in schools and colleges. Today, the Department of Justice is experiencing a crisis of leadership perhaps unrivalled during its 137-year history. There's a growing scandal swirling around the dismissal and replacement of several prosecutors and persistent efforts to undermine and marginalize career lawyers in the Civil Rights Division and elsewhere in the department. We hear disturbing reports that politics played a role in a growing number of cases. And I've warned for years against the lack of prosecutorial experience and judgment throughout the leadership ranks of the department. LEAHY: We're seeing the results amid rising crime and rampant war profiteering, abandonment of civil rights and voting rights enforcement efforts, and lack of accountability. I fear the Justice Department may be losing its way. The Department of Justice should never be reduced to another political arm of the White House -- this White House or any White House. The Department of Justice must be worthy of its name. The trust and confidence of the American people in federal law enforcement must be restored. Since Attorney General Gonzales last appeared before this committee on January 18th, we've heard sworn testimony from the former U.S. attorneys forced from office and from his former chief of staff. Their testimony sharply contradicts the accounts of the plan to replace U.S. attorneys the attorney general provided this committee under oath -- under oath -- in January, and to the American people during his March 13th press conference. The committee is still seeking documents and information and testimony so that we may know all the facts, the whole truth surrounding the replacement of these prosecutors who had been appointed by President Bush. One thing abundantly clear, is if the phrase "performance- related" is to retain any meaning, that rationale should be withdrawn as a justification for the firing of David Iglesias, John McKay, Daniel Bogden, Paul Charlton, Carol Lam and perhaps others. Indeed, the apparent reason for these terminations had a lot more to do with politics than performance. LEAHY: In his written testimony for this hearing and his newspaper columns, the attorney general makes the conclusory statement that nothing improper occurred. The truth is that these firings haven't been explained, and there is mounting evidence of improper considerations and actions resulting in the dismissals. The dismissed U.S. attorneys have testified under oath they believe political influence resulted in their being replaced. If they're right, the mixing of partisan political goals into federal law enforcement is highly improper. The attorney general's own former chief of staff testified under oath that Karl Rove complained to Attorney General Gonzales about David Iglesias not being aggressive enough against so-called voter fraud, which explains his being added to the list. With respect to Mr. Iglesias, the former U.S. attorney in New Mexico, the evidence shows he's held in high regard, considered for promotion to the highest levels of the department and chosen by the department to train other U.S. attorneys in the investigation and prosecution of voter fraud. Then as the election approached in 2006, administration officials received calls from New Mexico Republicans complaining that Mr. Iglesias would not rush an investigation indictment before the November election. True accountability means being forthcoming. True accountability requires consequences for bad actions. So this hearing is such an opportunity. Last November, the American people rejected this administration's unilateral approach to government and to the president actually without constitutional checks and balances. Rather than heed that call, within days of that election, senior White House and Justice Department staff finalized plans for seeing to the simultaneous mass firings of a large number of top federal prosecutors. By so doing, they sent the unmistakable message, not only to those forced out but to those who remained, that traditionally independent law enforcement by U.S. attorneys would not be tolerated by this administration. LEAHY: Instead, partisan loyalty had become the yardstick by which all would be judged. So I do not excuse the attorney general's actions and his failures from the outset to be forthright with us, with these prosecutors, but especially with the American people. The White House political operatives who helped spearhead this plan did not have effective and objective law enforcement as their principal goal. They would be happy to reduce the United States attorneys' offices to just another political arm of the administration. If nothing improper was done, people need to stop hiding the facts and tell the truth and the whole truth. If the White House did nothing wrong, then show us: Show us the documents and provide us with the sworn testimony -- the sworn testimony -- of what was done, and why and by whom. If there's nothing to hide, the White House should stop hiding it. Quit claiming the e-mails cannot be produced. Quit contending that the American people and their duly elected representatives cannot see and know the truth. And I trust that after the weeks of preparation for this hearing, the attorney general's past failures to give a complete and accurate explanation of the firings will not be repeated today. LEAHY: There's always been a tacit and carefully balanced intersection between politics and our law enforcement system. But it's been limited to the entrance ramp, the entrance ramp of the nomination and confirmation process. And instead of an entrance ramp, this administration seems to have envisioned a political toll road. The oversight has returned to Capitol Hill. The investigation already has pulled back the curtain to reveal unbridled political meddling, Katrina-style cronyism and unfettered White House unilateralism -- and directed at one of the most precious national assets, our law enforcement and our legal system. Earlier in this process, it seemed the administration was concluding that any answer would do, whether it was rooted in the facts or not. Those days are behind us. Just any answer won't do anymore. We need the facts. We'll pursue the facts until we get the truth. Just as respect for the United States as a leader in human rights has been diminished in the last six years, the current actions have served to undercut confidence in our United States attorneys. And just as Mr. Gonzales cannot claim immunity for the policies and practices regarding torture that were developed under his watch while White House counsel, he cannot escape accountability for signing off on this plan to undercut effective federal prosecutors and to infect federal law enforcement with narrow political goals. His actions have served to undermine public confidence in federal law enforcement, the rule of law. By getting to the truth, we could take a step toward restoring that trust. LEAHY: Senator Specter? SEN. ARLEN SPECTER, R-PA. RANKING MEMBER: Thank you very much, Mr. Chairman. The purpose of this Senate oversight hearing is to determine this committee's judgment as to whether Attorney General Alberto Gonzales should continue in that capacity. We are mindful of the difficulties and the achievements that Attorney General Gonzales had to surmount to become a Harvard Law graduate, become a Texas State Supreme Court justice, a White House counsel and now the chief law enforcement officer of the United States. A very distinguished record, indeed. And we further appreciate your status as a role model as the first Hispanic attorney general, and well recall the historic occasion, January 4th of 2005, when you appeared at that table on your confirmation hearing. As I see it, you come to this hearing with a heavy burden of proof to do three things: first, to reestablish your credibility; second, to justify the replacement of these United States attorneys; and third, to demonstrate that you can provide the leadership to the United States Department of Justice which has such a vital role in protecting our national interests and so many lives. Notwithstanding demands for your resignation by Democrats and Republicans in the United States Senate and elsewhere, I have insisted both publicly and privately that you be given your so-called day in court to give your responses. You do so in the context of testimony from a number of people in the Department of Justice who have contradicted certain of your public statements. You early said that you were not involved in any discussions, and then your subordinates testified to the contrary: that you were at meetings where discussions were undertaken about the replacement of these U.S. attorneys. You then said that you did not see memoranda, and again your subordinates have testified under oath that you were at meetings where documents, memoranda, were distributed. SPECTER: And then you modified your statement about the discussions to say that you were not involved in deliberations. And again, the testimony of three of your key subordinates -- your chief of staff, Kyle Sampson, the acting associate attorney general, Bill Mercer, and the director of the Executive Office of U.S. Attorneys, Michael Battle -- have said that you were involved in deliberations and have done so with some particularity. So that this is your opportunity, Mr. Attorney General, to tackle that burden of proof -- the heavy burden of proof to re-establish your credibility here. With respect to the removal of United States attorneys, there is no doubt that the president can remove U.S. attorneys for no reason at all. And President Clinton did just that in 1993, when in one fell swoop he removed 93 United States attorneys. But there cannot be a removal for a bad reason; that is if, as suggestions have been made, that U.S. Attorney Lam in San Diego was replaced because she was hot on the trail of confederates of former Congressman Duke Cunningham, who is now serving eight years in jail. Or a U.S. attorney may not be replaced if, as the allegations are made -- and until we've heard from you, Mr. Attorney General, I'm going to regard them as allegations. Until we hear from you, until we give you an opportunity to respond. But the allegations were made that U.S. Attorney Iglesias in New Mexico was removed because he would not initiate prosecutions which in his discretion felt were unwarranted. Now, as you and I know, I have been candid with you in suggestions as to what you should do. I think that is the role of a senator, to be open to discuss the issues candidly. SPECTER: And you called me on a Saturday and I wrote to you sometime ago outlining what I thought you had to address. As far as I'm concerned, this is not a game of gotcha. This is a matter where we want the facts. We want the hard facts so we can make an evaluation. And I suggested to you that you make a case-by-case analysis as to all of the U.S. attorneys who were asked to resign, and if you felt on or concluded on reexamination that some were asked to resign improperly, that you ought to say so and even ought to consider reinstatement. If someone is improperly removed, there are judicial remedies -- not in case, but in other analogous situations where courts will order reinstatement. Well, pretty hard to unscramble the eggs but that is a possibility. With respect to leadership, no one short of the secretary of defense has a more important role in our government in the administration of civil and criminal justice than does the attorney general of the United States heading the department. In your effort to remove yourself or distance yourself as you have appeared to have done, denying discussions, denying deliberations, denying memoranda, you face, really, the horns of a dilemma. SPECTER: And that is, if he were removed and actions were taken which were inappropriate that you were not really part of, although you have articulated your overall responsibility as CEO, but not responsible on the judgments, from the other horn of the dilemma of how you can provide the leadership if you are detached on such really important matters. It's a very, very tough dilemma, I think, that you face. And I believe you have come a good distance from the day you said that this was an overblown personnel matter in the USA Today article. So this is as important a hearing as I can recall, short of the confirmation of Supreme Court justices; more important than your confirmation hearing. In a sense, it is a reconfirmation hearing. And I await your testimony. Thank you, Mr. Chairman. LEAHY: Thank you, Senator Specter. What I'm going to do -- the chairman and ranking member of the appropriate subcommittee -- even though we're holding this under the full committee, the chairman and ranking members are Senator Schumer and Senator Sessions. I'm going to grant two minutes each to them, first Senator Schumer and then Senator Sessions, and then we'll go, Attorney General, to your testimony. Senator Schumer? SEN. CHARLES E. SCHUMER, D-N.Y.: Well, thank you, Mr. Chairman. I join you in mourning the losses at Virginia Tech. It cannot make anyone happy to have to question the credibility and competence of the nation's chief law enforcement officer. SCHUMER: This is, however, a predicament strictly of the attorney general's own making, so I'd like to make three points. First, we must get sincere and direct answers from the attorney general. We need clear responses, not careful evasions. The attorney general, as we have all read, has been preparing long and hard for this hearing. So I hope and expect we'll be treated to a minimum of "I don't recall." I hope we won't get meandering answers that take up time but don't answer the question. After all, this time if the attorney general cannot answer a straightforward, factual question from a senator about recent events, how can he possibly run the department? Second, the burden of proof is clearly shifted. Of course, we are not going to find an e-mail that says, "Fire Carol Lam because she's prosecuting Duke Cunningham." But when there is no cogent explanation for most of the firings, when there is virtually no documentation to support those decisions, when there are mounting contradictions, when there are constant coincidences, when those firings occur against a backdrop of mishaps, missteps and misstatements by the highest officials at the Justice Department, what are we to think? Every lawyer knows that cases are often made without finding the so-called murder weapon but are often made on circumstantial evidence. Here, the circumstantial evidence is substantial and growing and the burden is on the attorney general to refute it. If the attorney general cannot give clear and consistent reasons for each firing, then that burden will not have been met. And third, and finally, I hope we won't hear the attorney general continually repeat like a mantra, as if it's some sort of defense against all inquiry, that the president can dismiss a U.S. attorney for almost any reason. If the president suddenly ordered the firing of every U.S. attorney with an I.Q. over 120 because he didn't want smart people in the job, he's certainly legally permitted to do so. But a Congress that did not challenge such a silly plan would not be doing its job. And an attorney general who unquestionably -- who would unquestioningly execute it shouldn't keep his job. SCHUMER: The issue is not whether the administration has the legal power to fire U.S. attorneys. It's about how that power has been exercised. Was it used for proper, prudent reasons or improper political ones? Was it used wisely or crassly? Was it used with the best of intentions or the worst? We don't know all the facts yet. I hope we learn more today. LEAHY: Thank you. And, Senator Sessions? SEN. JEFF SESSIONS, R-ALA.: Thank you, Mr. Chairman. This is an important hearing and there is politics here but there's some very serious problems, Mr. Attorney General. Having served as United States attorney for 12 years myself and knowing so many of those people that have served, they're out there by themselves having to make tough decisions. And it's important that they feel like the Department of Justice will back them up when they're right. But they are accountable. They are appointed by the president and can be removed by the president. And there are a lot of important issues that the United States attorneys must be engaged in, such as illegal gun use, corruption, terrorism, immigration. They have to be held to account for the performance of those duties. It's a tough job for United States attorneys, and I would say for the attorney general it's a very tough job. Ask John Ashcroft. Ask Janet Reno. It's not easy, the job that you have. It's a great challenge and a very great responsibility. The integrity of the office you hold must be above reproach. I know you feel that way. You have said that to me more than once and said so publicly. But we've got some questions, and those questions have to be answered. It does appear that your statements given at the Department of Justice at a press conference incorrectly minimized your involvement in this matter. I believe that you should have been more involved in the entire process. I believe, frankly, you should have said no. I do not believe this was a necessary process, particularly the way it was conducted. I do remember your chief of staff toward the end of the hearing said this: "In hindsight, I wish that the department had not gone down this road and I regret my role in it." I think it has hurt the department. It has raised questions that I wish had not been raised. Because when United States attorneys go into court, they have to appear before juries. And those juries have to believe that they're there because of merit of the case and that they have personal integrity. So this matter's taken on a bit of life of its own, it seems. The ability to -- your ability to lead the Department of Justice is in question. I wish that weren't not so, but I think it certainly is. SESSIONS: So be alert and honest and direct with this committee. Give it your best shot. You are a good person, and I think that will show through. Thank you, Mr. Chairman. LEAHY: Mr. Attorney General, please stand, raise your right hand. Do you solemnly swear that the testimony you will give before this committee will be the whole truth, so help you God? And I understand that -- your full statement will be made part of the record and I understand you have a shortened version you wish to -- so please go ahead. ATTORNEY GENERAL ALBERTO R. GONZALES: Good morning, Chairman Leahy, Ranking Member Specter, members of the committee. I, too, want to begin by recognizing those who died and injured on Monday. The tragic events in Blacksburg have shocked and saddened Americans who have come together this week to grieve, to remember, and to try to make sense out of this senseless act of violence. I offer my prayers and condolences to the victims, their families and friends. I also want to recognize the law enforcement personnel who bravely responded to the scene. As I watched Monday's events unfold, I was filled with pride, watching men and women risk their lives and care for victims in the line of duty. Moments like these underscore my commitment to the mission of law enforcement and the honor that I have to serve as the nation's chief law enforcement officer. I have provided the committee with a lengthy written statement detailing some of the department's work under my leadership to protect our nation, our children and our civil rights. GONZALES: I am proud of our past accomplishments in these and other areas and I do look forward to future achievements. I am here, however, to answer your questions, not to repeat what I provided in writing. But before we begin, I want to make three brief points about the resignations of the eight United States' attorneys, a topic that I know is foremost in your minds. First, those eight attorneys deserved better. They deserved better from me and from the Department of Justice which they served selflessly for many years. Each is a fine lawyer and dedicated professional. I regret how they were treated, and I apologize to them and to their families for allowing this matter to become an unfortunate and undignified public spectacle. I accept full responsibility for this. Second, I want to address allegations that I have failed to tell the truth about my involvement in these resignations. These attacks on my integrity have been very painful to me. Now, to be sure, I have been -- I should have been more precise when discussing this matter. I understand why some of my statements generated confusion, and I have subsequently tried to clarify my words. My misstatements were my mistakes, no one else's, and I accept complete and full responsibility here, as well. That said, I've always sought the truth in every aspect of my professional and personal life. This matter has been no exception. I never sought to mislead or deceive the Congress or the American people. To the contrary, I have been extremely forthcoming with information. As a result, this committee has thousands of pages of internal Justice Department communications and hours of interviews with department officials. GONZALES: And I'm here today to do my part to ensure that all facts about this matter are brought to light. These are not the actions of someone with something to hide. Finally, let me be clear about this: While the process that led to the resignations was flawed, I firmly believe that nothing improper occurred. U.S. attorneys serve at the pleasure of the president. There is nothing improper in making a change for poor management, policy differences or questionable judgment, or simply to have another qualified individual serve. I think we agree on that. I think we also agree on what would be improper. It would be improper to remove a U.S. attorney to interfere with or influence a particular prosecution for partisan political gain. I did not do that. I would never do that. Nor do I believe that anyone else in the department advocated the removal of a U.S. attorney for such a purpose. Recognizing my limited involvement in the process, a mistake I freely acknowledge, I have soberly questioned my prior decisions. I have reviewed the documents available to the Congress. And I have asked the deputy attorney general and others in the department if I should reconsider. What I have concluded is that although the process was nowhere near as rigorous or structured as it should have been, and while reasonable people might decide things differently, my decision to ask for the resignations of these U.S. attorneys is justified and should stand. I've learned important lessons from this experience which will guide me in my important responsibilities. I believe that Americans focus less on whether someone makes a mistake than on what he or she does to set things right. GONZALES: In recent weeks I have met or spoken with all of our U.S. attorneys to hear their concerns. These discussions have been open and frank. Good ideas were generated and are being implemented. I look forward to working with these men and women to pursue the great goals of our department. I also look forward to continuing to work with the department's career professionals -- investigators, analysts, prosecutors, lawyers and administrative staff -- who perform nearly all the department's work and deserve the credit for its accomplishments. I want to continue working with this committee as well. We have made great strides in protecting our country from terrorism, defending our neighborhoods against the scourge of gangs and drugs, shielding our children from predators and preserving the integrity of our public institutions. And recent events must not deter us from our mission. I'm ready to answer your questions. I want you to be satisfied, to be fully reassured that nothing improper was done. More importantly, I want the American people to be reassured of the same. Thank you. LEAHY: Thank you, Attorney General. Your former chief of staff testified under oath about a conversation in which Karl Rove told you about complaints that former New Mexico U.S. Attorney David Iglesias and two other U.S. attorneys were not being aggressive enough against so-called voter fraud. When did such a conversation between you and Karl Rove take place? GONZALES: What I recall, Senator, is that there was a conversation where Mr. Rove mentioned to me concerns that he had heard about pursuing voter fraud, election fraud in three jurisdictions: New Mexico, Milwaukee, Wisconsin, and Philadelphia, Pennsylvania, as I recall. LEAHY: How many -- going back to New Mexico, how many conversations about New Mexico with Mr. Rove? GONZALES: Senator, I can only recall of that one conversation. LEAHY: Do you recall when that was? GONZALES: Senator, my recollection was that it was in the fall of 2006? LEAHY: Do you remember where? GONZALES: No, sir, I don't remember where that conversation took place. (CROSSTALK) GONZALES: And, Senator, I don't recall either whether or not it was a phone conversation or was an in-person conversation, but I do have a recollection of that conversation. LEAHY: So when was David Iglesias added to the list of U.S. attorneys to be replaced? GONZALES: Of course, Senator, when I accepted the recommendation, I did not know when Mr. Iglesias was, in fact, added to the recommended list. As I've gone back and reviewed the record, it appears that Mr. Iglesias was added sometime between, I believe, October 17th and December 15th. But I was not responsible for compiling that list. LEAHY: He was added either before or after the elections, but you don't know when? Is that what you're saying. GONZALES: Senator, I just responded as to when I believe -- as I've gone back and looked at the documents, it appears he was added sometime between October 17th and November 15th. LEAHY: I understand. But you don't know when? GONZALES: Senator, I have no recollection of knowing when that occurred. LEAHY: Do you know why he was added? GONZALES: Again, Senator, I was not responsible for compiling that information. The recommendation was made to me. I was not surprised that Mr. Iglesias was recommended to me, because I had heard about concerns about the performance of Mr. Iglesias. LEAHY: From? GONZALES: Certainly, I'd heard concerns from Senator Domenici. LEAHY: And who else? GONZALES: Well, Senator, certainly... LEAHY: And Karl Rove? GONZALES: What I know -- I heard concerns raised by Mr. Rove. And what I know today, while I don't recall the specific mention of this conversation, I recall the meeting. It was that there was a meeting in October, with the president, in which the president, as I understand it, relayed to me similar concerns about pursuing election fraud... LEAHY: When was that? GONZALES: ... in three jurisdictions. Senator, I've gone back and looked at my schedule. And it appears that that meeting occurred on October 11th. LEAHY: Now, Mr. Iglesias has been described by your former chief of staff as a "diverse up-and-comer." He was reportedly offered the job as the head of the Executive Office of the United States Attorneys for you here in Washington. He was selected by the Department of Justice to instruct other U.S. attorneys on investigating and prosecuting voter fraud. This past weekend, the Albuquerque Journal reported that when Senator Domenici told -- this is a quote -- "When Senator Domenici told Gonzales he wanted Iglesias out in the spring of 2006," you refused -- I'm quoting now from the article -- and told Senator Domenici you'd fire Iglesias only on orders from the president. In your testimony that you provide, you characterize Mr. Iglesias as "a fine lawyer; dedicated, professional; gave many years of service to the department." But in your March 7th column in USA Today, you wrote that he was asked to leave because he simply lost your confidence. When and why did he lose your confidence? GONZALES: Senator, Mr. Iglesias, like these other United States attorneys -- I recognize their service; I recognize their courage to serve the American people. Mr. Iglesias lost the confidence of Senator Domenici, as I recall, in the fall of 2005, when he called me and said something to the effect that Mr. Iglesias was in over his head and that he was concerned that Mr. Iglesias did not have the appropriate personnel focused on cases like public corruption cases. GONZALES: He didn't mention specific cases, he simply said "public corruption cases." I don't recall Mr. -- Senator Domenici ever requesting that Mr. Iglesias be removed. He simply complained about the -- whether or not Mr. Iglesias was capable of continuing in that position. LEAHY: With all due respect, Mr. Attorney General, my question wasn't when he may have lost confidence of Senator Domenici. My question is when and why did he lose your confidence? GONZALES: Senator, what I -- what I instructed Mr. Sampson to do was consult with people in the department... LEAHY: When and why did he lose your confidence? GONZALES: Based upon the recommendation -- what I understood to be the consensus recommendation of the senior leadership in the department that in fact these individuals -- there were issues and concerns about the performance of these individuals, that's when I made the decision to accept the recommendation that, in fact, it would be appropriate to make a change in this particular district. Now, the fact that Mr. Iglesias appeared on the list, again, was not surprising to me, because I already had heard concerns about Mr. Iglesias' performance. LEAHY: In a March 21 op-ed in the New York Times, Mr. Iglesias addressed the reasons he believes he was fired. And let me just quote from it -- and these are his words: "As this story has unfolded these last few weeks, much has been made of my decision to not prosecute alleged voter fraud in New Mexico. "Without the benefit of reviewing evidence gleaned from FBI investigative reports, party officials in my state have said I should have begun a prosecution. "What the critics who don't have any experience as prosecutors have asserted is reprehensible, namely that I should have proceeded without having proof beyond a reasonable doubt. "The public has a right to believe that prosecution decisions are made on legal, non-political grounds." Would you agree with that? GONZALES: I do agree with that. LEAHY: Justice Department officials, including your principal associate deputy, Mr. Moschella, said that one of the reasons Mr. Iglesias was replaced because, in their words, he was an absentee landlord. But I understand he continues his service as an officer in the Naval Reserve, and that fulfilling his Naval Reserve responsibilities take him out of the office approximately 40 days a year. You are aware, I assume, that the Uniformed Services Employment and Reemployment Rights Act and other laws prohibit employers from denying an individual employment benefits because of their military service. GONZALES: I am aware of that. I support it strongly. We enforce that act. LEAHY: When, how and by whom did this absentee landlord rationale for replacing Mr. Iglesias arise? GONZALES: Senator, that rationale was not in my mind, as I recall, when I accepted the recommendation. We have, of course, several other United States attorneys who perform military service. I applaud it and I support it. It would not be a reason that I would ask a United States attorney to leave. LEAHY: Let me ask you about absentee landlords. You have a -- Mr. Mercer is currently serving as your acting associate attorney general, even though he's U.S. attorney in Montana. The chief judge out there has been very, very critical of the way that office is run, the fact that he's gone. How many days a year does Mr. Mercer stay here serving as your acting associate attorney general, rather than the job he was confirmed for? GONZALES: Senator, that's a question -- an answer that I have to get back to you. But I think every United States attorney... LEAHY: Well, do you have any general idea? I mean, is it like a week a year? Is it several months a year? GONZALES: Senator, let me get back with you with the most accurate information. LEAHY: He's your associate attorney general. I mean, you would certainly know whether it's a week a year or several months a year, wouldn't you? GONZALES: Senator, I'd like to give you that information. But the main point I want the American people to understand is that every case is different with respect to serving in dual-hat capacities. LEAHY: Well, what is... GONZALES: I've heard no one complain about the fact that Pat Fitzgerald was prosecuting that case... LEAHY: I am not talking about Mr. Fitzgerald. GONZALES: ... while he was still serving as the United States attorney... LEAHY: I'm talking about... GONZALES: ... because every case is different. LEAHY: I'm talking about an office that the judge himself says is in disarray in Montana, and Mr. Mercer has testified that he's in Montana just three days a month -- three days a month -- while he's acting as your associate attorney general. I just mentioned that because if we're talking about absentee landlords, sometimes the absentee landlords are created by your own office. GONZALES: Can I respond to that? LEAHY: Certainly, and then it's Mr. Specter's time. GONZALES: In my travels, talking to the United States attorneys, I raised this issue, whether or not dual-hatting continues to be a good idea to a person. I don't recall any dissent. They all thought it was good. It was good for the U.S. attorney to get transparency into the Department of Justice. They also believed it was important for them to be able to call someone they knew working the Department of Justice. Every case is different. It may depend upon how strong the first assistant is. It may depend upon the strength of the other chief in that office. So every case is going to be different, Senator, and so the fact that someone can do it, like Mr. Fitzgerald, depends on a lot of different circumstances. LEAHY: In my state, I'd be pretty upset if the U.S. attorney was there only three days a month. Senator Specter? GONZALES: And, Senator, your views would be very important. I'd be interested in knowing what those views are. SPECTER: Mr. Attorney General, in my opening statement, I raised the issue as to whether you had been candid -- more bluntly truthful -- in your statements about not being involved in, quote, "discussions," not being involved in, quote, "deliberations," not seeing memoranda. And then, in your opening statement, you said two things which appear to me to be carrying forward this same pattern of not being candid. SPECTER: You said that you were only involved to a limited extent in the process. And then you say you should have been more precise. Well, it's not exactly a matter of precision to say that you discussed the issues, were involved in deliberations and decisions. That is just a very basic, fundamental fact. Now let me review some of the record with you. And we don't have much time, and it's necessary to go through it at a rather summary basis. But I know you're familiar with this record because I know you've been preparing for this hearing. GONZALES: I prepare for every hearing, Senator. SPECTER: Do you prepare for all your press conferences? Were you prepared for the press conference where you said there weren't any discussions involving you? GONZALES: Senator, I've already said that I misspoke. It was my mistake. SPECTER: I'm asking you, were you prepared? You interjected that you're always prepared. Were you prepared for that press conference? GONZALES: Senator, I didn't say that I was always prepared. I said I prepared for every hearing. SPECTER: Well, and I'm asking you, do you prepare for your press conferences? GONZALES: Senator, we do take time to try to prepare for the press conference. SPECTER: And were you prepared when you said you weren't involved in any deliberations? GONZALES: Senator, I've already conceded that I misspoke at that press conference. There was nothing intentional. And the truth of the matter is, Senator, I... SPECTER: Let's -- let's move on. I don't think you're going to win a debate about your preparation, frankly. But let's -- let's get to the facts. I'd like you to win this debate, Attorney General Gonzales. GONZALES: I appreciate that. SPECTER: I'd like you to win this debate. GONZALES: I apologize... SPECTER: But you're going to have to win it. This is what some of the record shows. And this is according to sworn testimony from your chief of staff, Kyle Sampson, from the acting associate attorney general, Bill Mercer, and by the executive director of the Office of U.S. Attorneys, Michael Battle. You had a first conversation with Sampson in December of 2004 about replacing U.S. attorneys. Then there were intervening events, but I'll come to some of the highlights. SPECTER: On June 1st, 2006, in an e-mail, Sampson described your statements on a plan addressing U.S. Attorney Lam's problems, with the option of removing her. It certainly sounds like more than discussions, deliberations and judgments. I'm going to go on because I want to feed you -- I want to give you the whole picture here. Then, on June 4th or 5th, according to sworn testimony, Mercer discussed with you Lam's performance. Then on June 13th of 2006, Sampson, in sworn testimony, said that you, quote, "almost certainly consulted on the removal of Bud Cummings." Then, in mid-October -- you've now identified a date of October 11th -- you went to the White House to talk about your vote fraud concerns, with Mr. Rove, with the president personally, came back, and, according to Sampson's sworn testimony, said, "Look into the vote prosecution issue, including those in New Mexico." That's what Sampson says, under sworn testimony. Then, on November 27th of 2006, you attended a meeting on the removal plans, attended by Sampson, Goodling, McNulty, Battle, a whole host of people. SPECTER: Now, I've just given you a part of the picture as to what these three deputies of yours -- high-ranking deputies have said that you did, on talking about removal, talking about replacements. Now, do you think it is a fair, honest characterization to say that you had only a, quote, "limited involvement in the process," close quote? GONZALES: Senator, I don't want to quarrel with you. SPECTER: I don't want you to either. I just want you to answer the question. GONZALES: Sir, I guess it's -- I had knowledge that there was a process going on. I don't know all the... SPECTER: You didn't understand there was a process going on? GONZALES: No, I had -- sir, I had knowledge that there was a process going on. SPECTER: Well, were you involved in it? GONZALES: Senator, with respect to Carol Lam, for example... SPECTER: Were you involved in the process? GONZALES: I was involved in the process, yes, sir. SPECTER: Were you involved to a limited extent, only? GONZALES: Yes, sir. SPECTER: How much more could you have been involved than to be concerned about the replacement of Cummings and to evaluate Lam and to be involved in Iglesias? Now, we haven't gone over the others, but is that limited in your professional judgment? GONZALES: Based on what I thought that I understood was going on, yes, Senator. I thought Mr. Sampson -- I directed Mr. Sampson to consult with senior officials in the department who had information about the performance of United States attorneys. I believed that that was ongoing and that he would bring back to me a consensus recommendation. The discussion about Ms. Lam never, in my mind, was about this review process. And I indicated so in my conversation with Pete Williams, I believe on March 26th, is that we were doing this process. Of course there were other discussions outside of the review process about the performance of United States attorneys. GONZALES: I can't simply stop doing my supervisory responsibilities over United States attorneys because this review process is going. SPECTER: Did you tell Mercer to take a look at Lam's record with a view to having her removed as a U.S. attorney? GONZALES: Senator, what I... SPECTER: Or is he wrong? GONZALES: I don't recall -- here's what -- Senator, what I recall is, of course, we had received -- the department had received numerous complaints about Carol Lam's performance with respect to gun prosecutions and immigration prosecutions. I directed that we take a look at those numbers because I wanted to know. And I don't recall whether it was Mr. Mercer who presented me the numbers, but I recall being very concerned. SPECTER: But you were involved in evaluating U.S. Attorney Lam's record, weren't you? GONZALES: Senator, I did not view that, and I -- this was my -- I did not view that as part of Mr. Sampson's project of trying to analyze and understand the performance of United States attorneys for possible removal. SPECTER: Never mind Mr. Sampson's project. Weren't you involved in the evaluation of U.S. Attorney Lam? GONZALES: Senator, of course, I was involved in trying to understand... SPECTER: Weren't you involved in the decision on the removal of Arkansas U.S. Attorney Bud Cummins, as Kyle Sampson testified? GONZALES: Senator, I have no recollection about that, but I presume that that is true. SPECTER: Weren't you involved in the decisions with respect to U.S. Attorney Iglesias in New Mexico, as you've already testified in response to the chairman's questions? GONZALES: Senator, I do recall having the conversation with Mr. Rove. I now understand that there was a conversation between myself and the president. And, at some point, Mr. Sampson brought me what I understood to be the consensus recommendation of the senior leadership that we ought to make a change in that district. SPECTER: OK, now we've got to evaluate -- this is the final statement before I yield -- as to whether the limited number of circumstances that I recited -- and it's only a limited number; there are many, many more -- whether you are being candid in saying that you were involved only to a limited -- you only had a, quote, "limited involvement in the process." As to being candid and also as to having sound judgment, if you consider that limited. And as we recite these, we have to evaluate whether you are really being forthright in saying that you, quote, "should have been more precise," close quote, when the reality is that your characterization of your participation is just significantly, if not totally, at variance with the facts. GONZALES: Senator, you're talking about a series of events that occurred over approximately 700 days. I probably had thousands of conversations during that time. And so putting it in context, Senator, I would say that my involvement was limited. I think that is an accurate statement. It was limited involvement. And with respect to certain communications such as the communication with the president, such as the discussion about Carol Lam, I did not view it at the time as part of this review process. I simply considered those as doing part of my job. We'd heard complaints about the performance of Ms. Lam. I directed the department to try to ascertain whether or not those complaints were legitimate. And if not, we ought to look at perhaps doing something about it. SPECTER: The chairman says I can ask one more question. You're saying it's not part of the process, you thought it part of your job. Is that what you're saying? Because if you are I don't understand it. GONZALES: Senator, I didn't consider it as part of this project that Mr. Sampson was working on. Simply because we had this process ongoing by Mr. Sampson doesn't mean that I quit doing my job as attorney general of supervising the work of the United States attorneys. And that's what I attempted to do. SPECTER: But it was intimately connected with her qualifications to stay on. GONZALES: Senator, of course in hindsight, I look back now that, of course, that that may have affected the recommendations made to me, yes. But, Senator, when I focused on those complaints, I wasn't thinking about this process to remove U.S. attorneys. What I was focusing on a complaint that I received about her performance. That's what I was focused on. I wasn't focused on the review process itself. I wasn't focused on whether or not her name would go on this list. I was focused on making sure she was doing her job. That's what I was focused on. LEAHY: So that senators can focus on where they're going to be, the order on the Democratic side will be -- going back and forth, of course -- Senators Kennedy, Kohl, Feinstein, Feingold, Schumer, Durbin, Cardin, Whitehouse and Biden. LEAHY: And the list I have from the Republican side, it would be Senators Grassley, Cornyn, Brownback, Hatch, Sessions, Graham, Coburn and Kyl. And following what I said I'd do earlier, I take that list from Senator Specter. So, Senator Kennedy? SEN. EDWARD M. KENNEDY, D-MASS.: Thank you, thank you, Mr. Chairman. And we appreciate, General, your sentiments about this horrific tragedy. I think all of us here on the committee, all Americans, know that that is certainly something that's hanging over all of our hearts at this very important and sad time. Just to come back to some themes that have been talked about a little bit here, earlier, during the course of this hearing. In your opening statement you indicated, as Senator Specter mentioned, that you had a limited involvement and that the process was not vigorous. The question is -- and then you say, "My decision is justified and should stand." Well, since you apparently knew very little about the performance of the replaced U.S. attorneys, how can you testify that the judgment ought to stand? What's the basis for that? GONZALES: I think that's a fair question, Senator. Obviously, when this began, I did not -- I was not the person in the department who had the most information about the performance and qualification of U.S. attorneys. GONZALES: There were many other people, particularly the deputy attorney general. And I charged Mr. Sampson, my chief of staff -- then my deputy chief of staff -- to engage in a review. I think it was perfectly appropriate to see where we could make changes to benefit the performance of the Department of Justice. And what I understood and what I expected is he would talk to people like the deputy attorney general to ascertain how U.S. attorneys were performing. And, of course, when the recommendation was presented to me, I understood it recommended the consensus view of the senior leadership of the department. KENNEDY: Well, I'm going to ask you, how can you know that none of them were removed for improper reasons? How can you give us those assurances, since you had a limited involvement, the process wasn't vigorous, and you left it, basically, to somebody else? GONZALES: Well, Senator, since then, of course, I have gone back and looked at the documents made available to Congress. I also had a conversation with the deputy... KENNEDY: This is since then? GONZALES: Yes, sir. KENNEDY: But when you made the judgment and decision -- when you made the judgment and decision, you didn't know, did you? GONZALES: On December 7th -- I know the basis on which I made the decision, no reasons that would be characterized as improper. I think I was justified... KENNEDY: But you didn't know whether those decisions were proper or improper, since you've said you had limited involvement, the progress (sic) was not vigorous, and you basically gave the assignment to Mr. Sampson... GONZALES: Senator... KENNEDY: ... as he testified and you approved? GONZALES: I think that I'm justified in relying upon what I understood to be the recommendation -- the consensus recommendation of the senior leadership. And I think, as we look through the documents; as you glean through the documents, nothing improper occurred here. You have more information about the testimony of witnesses than I do. I'm not aware that anyone based their recommendation on improper reasons. But just to be sure, I've asked the Office of Professional Responsibility to work with the Office of the Inspector General at the Department of Justice, to ensure that nothing improper happened here. KENNEDY: Well, getting back to the time that you made the judgment and decision, you didn't really know the actual weapons when you approved the removal, did you... GONZALES: Senator... KENNEDY: ... at the time? GONZALES: Senator, I have in my mind a recollection as to knowing as to some of these United States attorneys. There are two that I do not recall knowing in my mind what I understood to be the reasons for the removal. But as to the others, I recall knowing the reasons why independently I was not surprised to see their names recommended to me because through my performance as attorney general I had become aware of specific related to performance. KENNEDY: Well, we're reminded that the documents don't show any clear rationale for the firings. But I want to come back to how you can say in your opening statement that the Department of Justice makes decisions based on evidence. That certainly was not the case with regards to your judgment and decisions with regards to these firings. As I understand, you said you had limited involvement, the process was not vigorous. In response to Senator Leahy, you said you weren't responsible for compiling information. How can you give a blanket statement that the Department of Justice makes decisions based on evidence when we don't have the rationale even for the firings of these -- of the individuals at the time that they were fired? GONZALES: Senator, that statement related to our decision with respect to prosecutions. But with respect to what happened here, I believe that I had a good process when this began. KENNEDY: Let me ask about the process, if I could, please. The Department of Justice has a process. It's called the EARS process. It's been in effectively for the evaluation of U.S. attorneys. It's been there for years and years. Am I correct? That's the Department of Justice periodic comprehensive evaluation, U.S. attorneys. It's called E-A-R-S reports, for evaluation and report -- staff reports. GONZALES: Sir, that evaluation is an evaluation that occurs of United States attorney offices. It occurs every three or five years. It is a peer review, Senator. It is a review conducted by assistant United States attorneys. KENNEDY: I'm asking you, did you have an opportunity -- since it does review the performance of U.S. attorneys, did you have an opportunity to review that document which is the standard document for the Justice Department in the evaluation of U.S. attorneys? GONZALES: Senator, I did not review the document but, however, it would be just one of many factors, I think... KENNEDY: All right. GONZALES: ... should be appropriately considered in evaluating the performance of a United States attorney. KENNEDY: Let me ask you some others. GONZALES: Just one of many factors. KENNEDY: Did you speak personally with any of the -- have you spoken with any of the replaced U.S. attorneys about their performance? Have you, at this time, talked to any of the U.S. attorneys that were replaced? GONZALES: Who were replaced? KENNEDY: Yes. GONZALES: I have spoken with Mr. Bogden. KENNEDY: He's the only one? GONZALES: He is the only one, yes. KENNEDY: Did you speak with any of the assistant U.S. attorneys in the affected offices of the U.S. attorneys? Did you talk to any of the assistant U.S. attorneys, those that are serving with the U.S. attorneys that have been replaced? Did you speak with any of them? GONZALES: I certainly did it with respect to San Diego. There may be assistant United States attorneys who may be serving as the acting U.S. attorney that I may have met with in connection with my visit to visit with the United States attorneys sometime in the weeks of March 12th and thereafter. KENNEDY: So you may have met with someone that was in one of the different offices? GONZALES: I believe that I probably met with everyone who was serving in the affected offices, who was serving as -- in the acting U.S. attorney capacity. And certainly with respect to San Diego, I did visit the San Diego office and I spoke to the office. KENNEDY: This was before the firings? GONZALES: Oh no, sir. This is well after the firings. (CROSSTALK) KENNEDY: Did you perform any systematic review of the effect of the ongoing prosecutions by removing the U.S. attorneys? What would be the impact of ongoing prosecutions that those U.S. attorneys were involved in, did you do an evaluation of that? GONZALES: Senator, I think it's a good question. I think it's important for the American people to understand that prosecutions are done primarily by assistant United States attorney. Obviously, U.S. attorneys are important; they provide leadership, they establish morale. But this institution is build to withstand change and departures in leadership positions. And so if we have information about a particularly important public corruption case, that would be something we would consider. But if we didn't have information about a public corruption case and we were contemplating changes, would it be wise to reach into the division and get information about that case? I don't believe that would be a good idea. KENNEDY: Well, my time is just going to be just about wrapped up. Did you speak with others in the department of the performance of any of these U.S. -- individually, did you -- did the attorney general -- did you speak to anyone else in the Department of Justice about any of these U.S. attorneys, about their performance, prior to the time that they were fired, other than the Mr. Sampson? GONZALES: Yes, sir. KENNEDY: Who? GONZALES: Senator, I don't recall in connection with this review process Mr. Sampson was engaged in. But obviously issues came up with respect to Ms. Lam and her performance. And I recall a meeting at the department. I don't recall everyone who was there. But I do recall a discussion about the numbers. And again, Ms. Lam is a wonderful prosecutor, and I acknowledge her service. But I had genuine concerns about her efforts in pursuing gun prosecutions and particularly her effort with respect to immigration prosecution. This is a very important border district. And given the current debate about immigration reform, I felt that we should do better -- much better -- in this discussion. And yes, there was some discussion with others about Ms. Lam. KENNEDY: My time is up. Thank you. GONZALES: There may have been other discussions. I don't want to leave the impression those were the only discussions. LEAHY: Thank you. I'm advised that Senator Grassley has stepped out for -- has gone to a funeral. And, Senator Brownback, on the list I have from Senator Specter, you're next. SEN. SAM BROWNBACK, R-KAN.: Good. Thank you very much Mr. Chairman. Welcome, Attorney General. I'd like to get just a series of facts and the factual information out on the table on why this list of U.S. attorneys out of the 93 were terminated. You've talked already some about David Iglesias and Carol Lam. You just addressed some of the reasons there. And I recognize, as you state, that these are people that serve at the will and at the pleasure of the president. So you can terminate the for cause, without cause, whatever there might be. But it appears you've come today prepared to discuss the reasons for the termination of these various U.S. attorneys. And I think it's important that we find out what those reasons are, given the allegation that a number of them were fired for inappropriate reasons. So I want to go -- just go down the list with you, if I could. Daniel Bogden of Nevada: Why was he terminated? GONZALES: Senator, this is probably that one that to me, in hindsight, was the closest call. I do not recall what I knew about Mr. Bogden on December 7th. GONZALES: That's not to say that I wasn't given a reason; I just don't recall the reason. I didn't have an independent basis or recollection of knowing about Mr. Bogden's performance. Since then, going back and looking at the documents, it appears that there was concerns about the level of energy, generally, in a fast-growing district, concerns about his commitment to pursuing obscenity -- which is important for the department; it is a law, we have an obligation to pursue it -- and just generally getting a sense of new energy in that office. Now, in hindsight -- and I had a discussion with the deputy attorney general on the evening of Mr. Sampson's testimony, because I went to the deputy attorney general and I asked him, "OK, do we stand behind these decisions?" And if you look at some of the documents, you can see that the deputy attorney general agonized over this one. And I think that's good. That's a good thing that we're thinking about what is the effect of making this kind of decision on people. But at the end of the day, we felt it was the right decision. Now, I regret that we didn't have the face-to-face meeting with Mr. Bogden beforehand and let him know. And one of the things I've learned is that the department does not have -- has not had -- a good enough mechanism, in my judgment, to communicate with United States attorneys. There should be at least one face-to-face meeting at least with the U.S. attorney and with the deputy attorney general or the attorney general, so that if we are aware of concerns or we have concerns, we can convey those to the U.S. attorney. And my regret with respect to Mr. Bogden is that, in fact, that meeting did not occur. Nonetheless, in thinking about it, I believe it was still the right decision. However, because of the fact that Mr. Bogden was not notified of the decision, I did talk to Mr. Bogden, as I indicated that I had. And what I wanted -- I offered up to Mr. Bogden was my help in securing employment and moving forward. If there was anything that I could do to help him, I wanted to do that, because -- because I struggled, as well, over this decision. BROWNBACK: Paul Charlton in Arizona -- and if you could be as concise as possible, I'd appreciate that. BROWNBACK: But I want to give you a chance to say why. GONZALES: What I recall about Mr. Charlton, when the recommendation was made to me, as I recall knowing, of his poor judgment in pushing forward a recommendation on a death penalty case. These kinds of decisions, of course, are very, very important. And I take them very seriously. But we have a process in place to carefully evaluate death penalty decisions of the department around the nation. Obviously, the views of the local prosecutor are very, very important. I made a decision around, I believe, May 15th -- somewhere around there -- about a particular case. And he came back to me two months later, first going through the deputy attorney general's office and then back to me to have me reconsider the case. And I'm not aware of any new facts here. But the deputy attorney general, the capital unit review committee had already made a recommendation to me about this particular case. I'd already made a decision on this particular case. Since the decision on December 7th, I've also learned that he exercised poor judgment in the way he pushed forward a policy with respect to interviewing of targets. He wanted to record those interviews. He implemented that policy on his own, without consideration how it would affect other offices around the country, without consideration of how the other units like the FBI would feel about it. In hindsight, there may be good reasons to pursue such a policy. But to implement it unilaterally on his own, in my judgment, was poor judgment. But that's something that I became more familiar about as I studied the documents. BROWNBACK: Kevin Ryan, Northern District of California? GONZALES: I was not surprised to see Mr. Ryan on the list. And again, it's difficult for me to talk critically about these individuals who served our country. But you're asking me these questions. I was aware as a general matter about poor management in that office. There was disruption; that Mr. Ryan had lost confidence in some career prosecutors. We had to send out a second EARS team out to that office to try to get an understanding of the sources of complaints that we were hearing. So, in essence I would say it's a question of poor management. BROWNBACK: Margaret Chiara, the Western District of Michigan? GONZALES: Same issue. She's the other person, quite candidly, Senator, that I don't recall remembering -- I don't recall the reason why that I accepted the decision on December 7th. But I've since learned that it was a question of similar kinds of issues: poor management issues, loss of confidence by career individuals. GONZALES: We had to send someone out from main Justice to help mediate some kind of personnel dispute. So it was a question simply of someone not having total control of the office. BROWNBACK: H.E. "Bud" Cummins of Arkansas? GONZALES: Mr. Cummins obviously is someone who was on a different track. And because he was on a different track and was asked to resign on June 14th and not December 7th, there's been some confusion about Mr. Cummins, was he part of the seven. He was asked to resign on June 14th. I was -- I, myself, was confused, quite frankly, when I testified on January 18th. I had forgotten that, in fact, Mr. Cummins had been asked to resign on June 14th. And the reason I did is because Mr. Cummins left basically the same time as everyone else did. Mr. Cummins was asked to resign because there was another well- qualified individual that the White House wanted to put in place there, that we supported, because he was well-qualified. I also understand -- this is after the fact -- that, in fact, Mr. Cummins had expressed a desire -- and I don't want to put words in his mouth, because I think he may have testified maybe not -- he's testified about this -- but there was a newspaper article that appeared in the Arkansas Times indicating that because of having four kids -- having four kids to have to put through college, don't be shocked if he didn't serve the rest of his term. So it was a question of seeing that there may be a vacancy coming up and having a well-qualified candidate to go in that office. BROWNBACK: And John McKay, Western District of Washington? GONZALES: Mr. McKay, when I accepted the recommendation on December 7th, generally I recall there being serious concerns about his judgment. That's what I recall when I accepted the recommendations. And what I've since learned, of course, is that it related to an information- sharing project. It's not the way that he -- it's not that he pursued this. We expected him to. He was doing a good job -- he was doing a good job with respect to that. It's the way he pursued it, in exercising poor judgment that involved some of his colleagues and a letter that he sent to the deputy attorney general, that his colleagues would not have signed on the letter if they had known that the deputy attorney general would not welcome the letter. And he nonetheless asked them for their signature, and the deputy attorney general was surprised by the letter. It angered his colleagues, it angered the attorney -- the deputy attorney general, and it was an indication of poor judgment. There was also an instance where he gave an interview in Washington where he basically told our state and local partners, "Don't come to me for any more help in terms of partnerships because I just don't have the resources to do it." That was inappropriate. If, in fact, there are concerns about resources, he should come to us, try to let us help him with it. But to go out and give an interview and tell state and local partners, "Don't come to us because we can't help you anymore" -- and I'm paraphrasing here, I want to be fair to Mr. McKay -- that also demonstrated poor judgment. BROWNBACK: Thank you for giving the information on each of these. And I am glad to hear the factual basis. I hope we can get into that more during this hearing. And I hope during the process, as this wears on, too, there's a chance for you to reach out to some of these individuals, as well, as you've discussed, I guess, with Mr. Bogden in Nevada. BROWNBACK: I think that's something that would be useful in this as well. GONZALES: Thank you, Senator. BROWNBACK: Thank you, Mr. Chairman. LEAHY: Thank you. I'm just curious on one thing. You said that, if I understand your answer to the question from Senator Brownback, on Cummins when you had testified on the 18th, you were -- and overlooked what had had happened on the 17th, did you ever send a follow-up to that testimony to clarify the issue? GONZALES: Senator, I don't recall sending a follow-up, quite frankly. I think if you look carefully, I don't know if there was a misstatement or mistake in my testimony but... LEAHY: Because witnesses often do correct their testimony after. We always leave the record open so people can do that. GONZALES: Senator, there was a specific question about Mr. Cummins, and I did not indicate that the reason for Mr. Cummins was because there was another well- qualified individual. LEAHY: Senator Kohl? SEN. HERB KOHL, D-WIS.: Thank you, Mr. Chairman. Mr. Gonzales, there have been allegations that voter fraud and public corruption cases have been influenced by partisan political considerations in my state of Wisconsin. We've seen documents showing state party efforts -- Republican Party efforts to influence these type of prosecutions, routed through Karl Rove's office, directly into the office of your former chief of staff. So, Mr. Attorney General, was Mr. Steve Biskupic, U.S. attorney in the Eastern District of Wisconsin, ever on the list of U.S. attorneys who were to be dismissed? It has been reported in the papers, both in The Washington Post and the Milwaukee Sentinel, that he was to fired, but the Justice Department has not made public any documents to show that. GONZALES: Senator, I was never aware that Mr. Biskupic was on a list, obviously, when I made my decision. I'm aware that he may have appeared in a category which would indicate that there were concerns about his Mr. Biskupic. GONZALES: But I think he's already issued a press release saying he never knew about that, and that it never would have influenced, and did not influence any decisions that he made with respect to cases in Wisconsin. KOHL: I appreciate that. But the question is, was he on a list of U.S. attorneys who were being considered for dismissal? GONZALES: Senator, I believe I testified that I believe that he was listed as someone, yes, that... KOHL: So then my question is, why was he then taken off the list? GONZALES: Senator, I -- again, this was a process that was ongoing that I did not have transparency into. I don't recall -- transparency into with respect to Mr. Biskupic. I don't recall being aware of discussions about Mr. Biskupic. Mr. Biskupic is a career prosecutor. He was appointed a United States attorney through a bipartisan panel. With respect to the case, I think everyone is focused on, he made charging decisions after consulting with the then-Democratic state attorney general and consulting with the Democratic local prosecutor. And he believed it was the best -- his best judgment to charge that case, based on the evidence. KOHL: I do appreciate that. But I'm trying to understand why he would have been on a list and then taken off a list. There must have been a reason for one and then the other. GONZALES: Senator, with all due respect, the person -- there were other people that would have that information, that are witnesses -- fact witnesses. I have not consulted with them because I did not want to -- in any way, want to compromise the integrity of this investigation or the investigation at the department. KOHL: That's fine. Could you get back to me, within a week, with respect to the question of why he was on the list and then why he was taken off the list? GONZALES: With all due respect, Senator, the person who was responsible for compiling the list is Mr. Sampson. And he -- he is the person that would have the answer as to why -- he would be the best person as to why Mr. Biskupic was on a list or off a list, or anybody else that was on or off a list. GONZALES: Senator, I'll go back and see if there's something that I can do. But I want to be very careful about talking to fact witnesses, and I'm not going to do that. I don't want to compromise the integrity of this investigation or the integrity of the department investigations. KOHL: Mr. Attorney General, once appointed by the president, confirmed by the Senate as attorney general, we all understand that you're expected to cast aside all partisan politics and serve only the interest of justice and of the American people. The Justice Department is expected to investigate and prosecute those who violate our laws completely blind to their partisan political affiliation. Public confidence in your fidelity to these ideals of course is essential. Without the public's confidence in the impartial administration of justice, our entire judicial system is called into question. Sadly, your actions have severely shaken the confidence of the American people in you and in your ability to fulfill your public trust. According to recent polls, as many as 67 percent of Americans believe that these eight U.S. attorneys were fired for political reasons, and over half of the American people believe that you should resign. Moreover, press accounts have detailed low morale among U.S. attorneys across the country as a result of these events. I'm sure we can agree that the integrity of the office of attorney general as an institution is more important than the self- preservation of any one person who sits in it. Many Americans wonder, therefore, what is the rationale for you to remain as the attorney general, given the low morale, the history of mismanagement, the apparent lack of independence from the White House and, most importantly, the taint of politics trumping justice in your tenure. Would you explain to the American people why it is so important that you should remain in this office? GONZALES: Let me first direct the question about taint of politics. And let me just start with an example, Senator. Six weeks before the election, this department took a plea from Congressman Bob Ney -- six weeks before the election. We could have taken the -- we could have taken the plea after the election. And I'm sure when we took that plea, there were some Republicans around the country probably scratching their heads, wondering, "What in the world are they doing?" Well, what we're doing is doing what's best for the case. That's what we did. We don't let politics play a role -- partisan politics play a role in the decisions we make in cases. And we've prosecuted members of Congress, we've prosecuted governors, Republicans. And so, this notion that somehow we're playing politics with the cases we bring is just not true. And the American people need to understand that. Because, when you attack the department for being partisan, you're really attacking the career professionals. They're the ones, the investigators, the prosecutors, the assistant U.S. attorneys, they're the ones doing the work. And so, when someone says that we politicized a case, what you're doing is criticizing the career folks. And that's not right. And in terms of why I should remain as attorney general, you're right, this is not about Alberto Gonzales. This is about the Department of Justice and what is best for the department. And as I look back over the past two years, I look back with pride in the things that we've accomplished: a lot of good things with respect to protecting our kids, protecting our neighborhoods, protecting our country. I have admitted mistakes in managing this issue. But the department as a general matter has not been mismanaged. We've done great things. And we will continue to do great things. GONZALES: And I will work as hard as I can to improve morale. Obviously, this was an unfortunate incident for the department. But the work of the department continues. And it's very important for the American people to understand that. Cases are still being investigated. Cases are still being prosecuted. Because these are career folks, and all what they care about is making sure justice is done. And that's what I care about. And I've instructed every United States attorney, I don't want an investigation or a prosecution sped up or slowed down because of what's happened here. I expect everyone at the Department of Justice to do their job. And it continues. KOHL: Well, I appreciate that. And the point is still, I believe, that at the moment two-thirds of the American people believe that these U.S. attorneys were fired for partisan political reasons. And over half of the American people believe that we'd be better off if you resign. Now, I'm sure you would agree that the perception of the American people with respect to the attorney general and his position and his impartiality in the dispensation of justice is critical. Now, if after these hearings are over -- if a week, or two or three from now, the American people still feel that way, how would you then feel about the importance of your tenure as the attorney general of the United States? GONZALES: Senator, I have to be -- I have to know in my heart that I can continue to be effective as the leader of this department. Sitting here today, I believe that I can. And every day I ask myself that question, "Can I continue to be effective as leader of this department?" The moment I believe I can no longer be effective, I will resign as attorney general. KOHL: Yes, and if the American public's perception is negative, how does that impact your perception? GONZALES: Senator, part of my goal today is to educate and inform the American public about what happened here. The notion that there was something that was improper that happened here is simply not supported by the documents. I don't think it's supported by the testimony, much of it which I haven't seen. GONZALES: It's certainly not the reason that I asked for these resignations. And I've tried to reassure the American public. I am committed to getting to the bottom of this. I can't interfere with this investigation, but I've asked the Office of Professional Responsibility to work with the Office of the Inspector General and let's find out what happened here. If, in fact, someone did something, made a recommendation for improper reasons, yes, there's going to be accountability. Absolutely. KOHL: Thank you very much. And thank you, Mr. Chairman. LEAHY: Thank you. I should note just for the audience, we have people here who are both supporters of the attorney general and opponents of the attorney general. You are guests of the United States Senate and nobody is more protective of First Amendment rights than I. But if signs are being held up and are blocking the views of people -- I don't care whether the signs are for the attorney general or opposed to the attorney general, if signs are being held up blocking the views of others, who have just as legitimate a right to be here as everyone else, the people doing that will be removed. I'm going to go to Senator Hatch and then I'm going to go to Senator Feinstein and then we'll take a 10-minute break. Is that -- thank you. Senator Hatch? SEN. ORRIN G. HATCH, R-UTAH: Well, thank you, Mr. Chairman. Welcome, Mr. Attorney General. Mr. Attorney General, do you make decisions at the Justice Department based upon the polls? GONZALES: No, sir, I don't. HATCH: No, you don't, do you? GONZALES: Senator, I make decisions, particularly with respect to cases, based on the evidence, not based upon whether or not the target the Republican or Democrat. And, of course, I've been appointed by the president, confirmed by the Senate to make decisions based on my best judgment. HATCH: I take it not whether it favors you or disappoints you. GONZALES: Sometimes, Senator, in doing my job, I'm going to make people unhappy. HATCH: On March 19th, one of my Democratic colleagues said that he would be surprised if you were attorney general a week later. Well, I'm glad to see you here a month later, personally, because we've worked rather extensively together and I've seen an awful lot of good work down there that you've been describing to a good deal today, and you can't even begin to touch all the good things that have been done. You've said here today that you want to help Congress and the public understand what happened in the removal of these U.S. attorneys. Your actions back up your words. I applaud you for making available the Justice Department's top officials and staff for testimony and interviews, as well as thousands and thousands of pages of documents. Now, I'm afraid that some simply do not want to go where the evidence tells us to go. Some appear to have decided, in our country today, instead where they want to go and they're fishing for anything that they can claim will back up their preconceived conclusions. Now, it's one thing to conduct legitimate oversight over matters that are the subject of legislative concern; it's another to traipse around on ground committed by the separation of powers to another branch of government. I think that's what's been going on here, and I think it's unfortunate, I think it's wrong. HATCH: I know you have to -- you've stated this before, but let me ask you just once more for the record, because this is important: Were any of these eight U.S. attorneys asked to resign in retaliation for or to interfere with any case that they brought or refused to bring? GONZALES: That's not the reason I asked for the resignations, Senator. And from everything that I've seen and heard... HATCH: Then the answer is no. GONZALES: ... I don't think anyone was motivated for that reason. HATCH: OK. How many employees do you have at the Department of Justice? GONZALES: Around 110,000. HATCH: One hundred and ten thousand employees. What are the main core functions of the Department of Justice that you supervise? GONZALES: Well, we enforce the law. We prosecute cases in our federal courts. The FBI is the lead investigatory agency in the country. We have... (CROSSTALK) HATCH: ... the FBI. GONZALES: Pardon me? HATCH: You overview the FBI. GONZALES: The FBI comes within the jurisdiction of the Department of Justice. We have the Drug Enforcement Agency. We have the Bureau of Prisons. We have Alcohol, Tobacco and Firearms; very involved, along with the FBI, with respect to the tragedy that happened out at Blacksburg. And so there are many very, very important divisions that exist within the Department of Justice family that contribute to the core mission of the department of ensuring that our laws are enforced and that justice is, in fact, delivered here in our country. HATCH: You spend a lot of time traveling in the country as well, don't you? GONZALES: I do. I think it's important to go out and see the components. One of the things I really enjoy is to visit folks in the United States attorney offices. I like to go by and visit the United States attorney. I like to speak with the staff, express to them how important they are, let them know that really the success of the department is not the attorney general, it's not the United States attorney, it is the career investigators, the career professionals. HATCH: You spend a lot of time down at the White House as well, don't you? GONZALES: I don't spend as much time as I used to spend at the White House. (CROSSTALK) HATCH: ... the Cabinet meetings? GONZALES: Of course. I'm there at Cabinet meetings. And I'm there for policy discussions and when there's a need for me to be at the White House. GONZALES: As Andy Card once used to say, if you need to see the president, you see the president. If you want to see the president, you don't see the president, because his time is so valuable. HATCH: The president wants to see you, you're on call, right? GONZALES: Of course. HATCH: You go to intelligence meetings, right? GONZALES: That is correct. HATCH: Among various intelligence factions of government... GONZALES: Yes. We... HATCH: ... for important meetings? GONZALES: From time to time, we do have meetings relating to threats to United States interests overseas and, of course, threats to the homeland. HATCH: In fact, I've been in some of those intelligence meetings with you, in the secure room in the White House, right? GONZALES: We do have intelligence briefings from time to time, in the Situation Room, yes, sir. HATCH: Now, many of our fellow citizens may not have an accurate picture of what federal prosecutors do, or their relationship with the Justice Department here in Washington, what we call main Justice. Now, I think many people probably see U.S. attorneys as something like independent contractors, able to call their own shots, set their own priorities, follow their own policies. And there might also be another kind of misunderstanding, in the other direction, when people here had said that U.S. attorneys are political appointees. That makes understanding all of this much harder for our fellow citizens who have been characterized here today. Now, I'd like to help -- I'd like you to help dispel these myths a little, by describing what the roles and the relationships should be between the U.S. attorneys around the country and the Justice Department, which ultimately means you and the president, here in Washington. GONZALES: Senator, United States attorneys are accountable to the president, through me. We are accountable to the American people. And there has to be real accountability. Obviously, with respect to decisions relating to prosecution, U.S. attorneys should have and do enjoy independence in exercising their judgment as to what cases to move forward with or not. GONZALES: But with respect to policy, a president and the attorney general -- we are accountable to the American people. The president is elected based upon a set of -- his policies, his priorities. I mean, the only way to get those implemented is through the U.S. attorney. And it's important that the United States attorney support the policies and priorities of the president of the United States. And obviously, within each specific district, there are going to be specific needs and priorities that are local. And the U.S. attorney has to find a way to accommodate those local needs and priorities, as well as the national needs and priorities. Because those are important to the president of the United States, and the U.S. attorney, as a member of a president's team, is subordinate and is accountable to the president. And the president is accountable to the American people for his policies and for his priorities. HATCH: I want to give you a fuller opportunity to explain your involvement in the process leading up to asking these U.S. attorneys to resign. You made an important distinction, which makes your description perfectly reasonable. You distinguished between the general supervision of U.S. attorneys, in which your involvement was extensive, and the specific evaluation for identifying who should resign, in which your involvement was limited. Now, this is an obvious distinction and an important distinction. Did I describe it accurately? GONZALES: That is correct, Senator. I had in my mind this process that Mr. Sampson was coordinating. But, obviously, from time to time issues would come up with respect to the performance of United States attorneys that in my mind I viewed as simply doing my job as the attorney general to deal with a concern or complaint relating to performance of that United States attorney. I do not, in my mind, view that as, "OK, that person goes on the list." Because I relied upon Mr. Sampson to coordinate an effort to consult with senior officials and make a decision as to whether or not -- where there were issues and concerns relating to performance. But the fact that I delegated this task to Mr. Sampson doesn't mean that I abdicate my responsibility as attorney general to field complaints and to review and address concerns about a specific issue relating to a United States attorney. GONZALES: And so, yes, in my mind, those were separate and apart. HATCH: My time is up, Mr. Chairman. LEAHY: Thank you, Senator Hatch. And what we'll do, I'm going to go now to Senator Feinstein. We'll then take a 10-minute break. Following Senator Feinstein, as I mentioned earlier, Senator Grassley is at a funeral. If he is back, he would be the next in line. If not, Senator Cornyn or Senator Sessions, depending upon which one is here. Senator Feinstein? SEN. DIANNE FEINSTEIN, D-CALIF.: Thank you very much, Mr. Chairman. I have essentially three questions that I'd like to ask you, Mr. Attorney General. Let me go back. Whose idea was it to change the law in an amendment written by your staff, conveyed by your staff, Mr. Moschella, to Senator Specter's staff, Bart Brectholman (ph), on or about November 15th, 2005, to add in conference, without sharing it with any member of this committee, an amendment which effectively gave you the ability to replace U.S. attorneys without Senate confirmation? Whose idea was this? GONZALES: Senator, I don't recall specifically the genesis of the idea, although, in going back and looking at the documents, it appears that there was some thinking about this as early as 2004. I will say this: I do support -- I did support the change in the law, not in order to avoid Senate involvement, but because I, quite frankly, do not like the idea of the judiciary deciding who serves on my staff, and that's why I supported the law. FEINSTEIN: So you, essentially, approved it being conveyed to the Senate in the manner in which it was conveyed. GONZALES: Senator, I don't -- no, that's not what I'm saying. I don't -- I do not have any recollection about the mechanics of getting it -- of the legislative process. FEINSTEIN: You don't have a recollection. OK. Let me go on, because my time is short. I'm very confused. I'm unsure whether you were really the decider on this list or not. Because your written comments, printed yesterday, say, "I did not make decisions about who should or should not be asked to resign." FEINSTEIN: Today you said three different things. "I accepted the decision of the staff." "I accepted the recommendations of the staff." And then, sort of, a vague statement, "I made my decision." GONZALES: Senator... FEINSTEIN: Who was the decider? GONZALES: Senator, I accepted the recommendations made by the staff. I'm the attorney general. I make the decision. Can I see what you're reading from? You've referred to statements from yesterday. I don't recall making any... FEINSTEIN: I referred in something entitled "Statement of Alberto Gonzales." GONZALES: Oh, the written statement. FEINSTEIN: The written statement, the top of page four. GONZALES: OK. FEINSTEIN: So in writing you clearly say, "I did not make decisions about who should or should not..." This is, I guess, one of the problems, is that all of this has been, kind of, constant equivocation. Apparently... GONZALES: Senator, you're not reading my entire statement. I said -- maybe you did, I'm sorry. During those -- Mr. Sampson periodically updated me on the review. As I recall, his updates were brief, relatively few in number, and focused primarily on the review process itself. During those updates, to my knowledge, I did not make decisions about who should or should not be asked to resign. So in connection with this review process, as Mr. Sampson gave me updates, I don't recall ever saying -- even though they were still in the deliberative process, ever saying, "No, take that person off," of, "Add this person." I don't recall ever doing that. Now, certainly after the work had been completed, Mr. Sampson brought me recommendations. I accepted those recommendations. Those were my decisions. I accept full responsibility for those decisions. FEINSTEIN: So that's what I wanted to know. GONZALES: Yes. FEINSTEIN: You're prepared to say that you made the decision to fire these seven U.S. attorneys on that day, December 7th. GONZALES: Senator, I don't recall whether or not I made the decision that day. I don't... FEINSTEIN: I'm not saying that day. They were... GONZALES: No, that was your question. FEINSTEIN: Mike Battle made the phone calls that day. GONZALES: Mr. Battle made phone calls that -- I made a phone call to Senator Kyl. Yes, phone calls were made that day. FEINSTEIN: OK. So... GONZALES: I don't recall -- I don't recall exactly when the decision -- I made the decision. 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. Again... (CROSSTALK) FEINSTEIN: OK. That's what I wanted to know. GONZALES: ... that those EARS evaluations are evaluations of the performance of the office. GONZALES: They would just be one of many factors. And I would say United States attorneys universally would say they ought to be given the appropriate weight when looking at the performance of a United States attorney. FEINSTEIN: All right. Mr. Mercer, who was in charge of the process, in his transcript on the question... GONZALES: Senator, I don't believe he was in charge of it. Mr. Sampson -- I delegated to Mr. Sampson the task of coordinating this process. FEINSTEIN: Mr. Mercer was not in charge of looking at the EARS reports? GONZALES: Senator, I don't recall knowing whether or not Mr. Sampson was in charge. You mean, as a general matter? FEINSTEIN: Excuse me -- Mr. Battle? GONZALES: Mr. Battle -- he was the director of the Executive Office of United States Attorneys. So the EARS evaluation is performed through that office. FEINSTEIN: So he would have looked at those reports? Let me give you a question and an answer from the transcript, page 43. GONZALES: Senator, can I see what you're reading from? FEINSTEIN: I am reading for the staff interview on a transcript. GONZALES: I haven't seen that transcript. Could I see it, if you're going to ask me a question about it? FEINSTEIN: May I ask the question, and then send it down? GONZALES: Yes, certainly. I'm sorry. FEINSTEIN: The question is, "What did you do in response to her request to identify certain U.S. attorneys and/or districts?" Answer: "I basically wondered about the request. I had my secretary print out a list of all the U.S. attorneys just to see if I could look at the list and see if there was anybody on there who may have been involved in some issues of misconduct or things of that nature that somebody maybe didn't know about, and I could report that to someone. I looked at the list. Nobody jumped out at me. I put the list away." If you'd like to see this, I'll be happy... LEAHY: And I think, without... GONZALES: Can you just give me the page number, Senator? LEAHY: And this without -- and I'll offer extra time to the senator from California on this -- Mr. Attorney General, I sent you a letter notifying you of this subject and referring to the transcript, so you would not be surprised. GONZALES: Thank you, Senator. What page is that on, Senator? FEINSTEIN: It's page 43. GONZALES: And your question is? FEINSTEIN: My question is, did anybody that was involved in the -- which was an unprecedented group-firing of U.S. attorneys -- ever look at their performance reports prior to putting them on the list? GONZALES: Senator, I don't know that. FEINSTEIN: OK. Now, let me -- you said today... GONZALES: But I would just say, again, I want to emphasize about the appropriate weight to put on a EARS evaluation. You could have a great EARS evaluation, which means you have a great team. But you can have a U.S. attorney that's not doing a very good job. FEINSTEIN: All right. You said today, "We could do much better with regard to Carol Lam." So let me be clear: Carol Lam was ranked as one of the top 10 prosecutors in the country for her prosecutions and her conviction rate. San Diego reached its lowest crime rate in 25 years during her tenure. She brought down the Hell's Angels gang in San Diego. She was told by Deputy Attorney General James Comey that he was satisfied with her prosecution strategy for gun crimes. She brought indictments against the Arellano-Felix cartel, a significant success in the fight against drugs. She gained a national reputation for her work on public corruption cases, which was the FBI's second-highest priority, just after terrorism. She was praised by the Border Patrol, the Immigration and Customs Enforcement, local leaders of the FBI, the San Diego city attorney, judges in her district and many others. I -- the letters have said immigration is not one of the department's top priorities. However, immigration prosecutions accounted for the largest single crime category prosecuted during Lam's tenure. FEINSTEIN: And in August, I received a letter dated August 23rd -- that's just prior to the December 7th firing -- signed by Will Moschella, that says this: "Prosecutions for alien smuggling in the Southern District under 8 U.S.C. Section 1324 are rising sharply in the year 2006. "As of March 2006, the halfway point for the fiscal year, there were 342 alien smuggling cases filed in that jurisdiction. This compares favorably with the 484 alien smuggling prosecutions brought there during the entirety of fiscal year 2005." And the letter goes on, "This was in answer to an inquiry I made. The letter says all is fine on the western front, the Southern District, with respect to these prosecutions." And, finally, "No one in the department communicated to Carol Lam that there were concerns with the handling of her immigration cases." If this is the reason for the firing of a distinguished U.S. attorney, shouldn't somebody talk to her and say, "Look, we have a concern," and give her an opportunity to respond? GONZALES: Senator, she is a distinguished prosecutor, and I commend her service as a prosecutor and as a judge, and she's a wonderful person. She was acutely aware of the concerns that existed with respect to her policies. She received letters directly from Congress. She met with members of Congress. There were communications back and forth with the Department of Justice about her numbers. I think that she was aware of the fact that we had concerns. With respect to the letter, I don't recall being aware of the letter when I accepted the recommendation. I made the decision to ask for Ms. Lam's resignation. But you can't just focus on alien smuggling. Illegal entry, illegal reentry are, likewise, important. Ms. Lam served with distinction in a lot of other areas. And, of course, she's going to have a lot of fans, and as do these other United States attorneys that were asked to resign, because there are good things that they did. But this was a very important border district, and it was appropriate for the president of the United States and the attorney general to expect that we would make improvements with respect to both gun prosecutions and immigration prosecutions. That is the reason why I asked for Ms. Lam's resignation. She had served for four years, and we felt that it was the appropriate time to make a decision to try to improve performance with respect to -- certainly with respect to immigration prosecutions. FEINSTEIN: If I might, you mentioned the House members. I'd like to bring to your attention an e-mail sent on August 2nd that indicates she is meeting with Issa and Sensenbrenner. And this is from Rebecca Seidel to Mark Edley (ph). "Sounds like she handled well and it was actually constructive. See below." And then there is a litany about the meeting: "very cordial, very constructive," et cetera. GONZALES: Senator, there is no question that the record is full of discussions and concerns that the department had about Ms. Lam's performance related to immigration and gun prosecutions. That is the reason why I decided to ask for her resignation, to make a change. Now we -- those are the -- that's the reason why. FEINSTEIN: Thank you, Mr. Chairman. LEAHY: Thank you. We will take a 10-minute recess and then Senator Cornyn will be next. (RECESS) LEAHY: The committee will be in order. LEAHY: And, again, I would remind people that you're here as guests of the United States Senate. We have both supporters and opponents of the attorney general. That's fine. I think the attorney general would agree with me, we protect the right of people to do that. But I will not have you disrupting -- anybody, on either side, disrupting these hearings. These hearings are important. The attorney general is entitled to be heard. Senators are entitled to ask their questions. And we will have the kind of decorum expected by the Senate. Just so everybody understands. Senator Cornyn? SEN. JOHN CORNYN, R-TEXAS: Thank you, Mr. Chairman. General Gonzales, you and I have known each other a long time, and I believe that you are a good and decent man. But I have to tell you that the way that this investigation has been handled is just been -- been really deplorable. You say that the process was flawed and you made mistakes in managing it. And I'd like to ask you, how should you and the department have conducted this process, if at all? GONZALES: I believe that the review was appropriate, quite frankly. I think it is appropriate to ensure that public servants are doing their job. And that if we can make improvements, I think I have an obligation as the attorney general to pursue those improvements. Looking back, things that I would have done differently? I think I would have had the deputy attorney general more involved, directly involved. I think that I should have told Mr. Sampson who I wanted him to consult with specifically. I should have asked him, "Who are you going to consult with?" I should have told him, "I want the recommendation to include these people." And I think he should have -- I should have asked him, "Who do you think it ought to include as well?" I should have told him the factors that I thought were important for him to consider. I should have told him, "This is a process that should not take two years, it's a process that should be completed in probably about six months -- six to 12 months, something like that." GONZALES: And I think I would have told him -- I should have told him, "There ought to be a face-to-face meeting with every United States attorney during this review and it ought to involve the DAG, or it ought to involve me. And we should have a list of particulars and talk with them about issues or concerns that I have and give them an -- give the United States attorney an opportunity to respond to those concerns that we've raised." And so I think these are the things -- when I talk about a more rigorous, a more structured process, I think these are the kinds of things, in hindsight, that I wish would have happened. Now, I want to be very, very careful about formalizing a review process. Quite frankly, I raised this issue in my United States attorney dialogue. The United States attorneys do not want a formal evaluation process. They don't want it. They want to report to the DAG and to the attorney general, and so that -- what we're going to do is try to improve communication as opposed to implementing a formal process. I think it's also unfair to the president of the United States, quite frankly. If you have a formal evaluation process and that process shows that a United States attorney is doing a great job, but the president wants to make a change, politically, it may be tougher for the president to do that. And so, I think, for those reasons, I would not have a formalized process, but I would have had a more structured and a more rigorous process in the manner that I've described. CORNYN: What I'm struggling to understand about this controversy is President Clinton replaced 93 United States attorneys in one fell swoop. There is no requirement that any cause for replacement of a U.S. attorney be stated because they serve at the pleasure of the president of the United States. CORNYN: That's one of the consequences of the election. And so, if in fact there is no evidence -- and I haven't heard of any evidence -- that these U.S. attorneys were replaced with the purpose in mind of interfering with an ongoing investigation or prosecution -- your comments along that line have been backed up by the FBI director and others, that there is no evidence of that -- then I can only conclude that we find ourselves here today -- you find yourself where you are today -- as a result of injecting performance- based rationale into the decision to replace the United States attorney. My recollection is that the deputy attorney general, Mr. McNulty, first offered those performance-based rationales for replacement of these attorneys, each of whom had served four years. And this is not a lifetime-tenured job. It's not like a federal judge. And it would have been much better to tell each of these United States attorneys, "Thank you for your service. You've served for four years. And now it's time for someone else to have an opportunity to serve their country in this important job." Wouldn't that have been a better way to address this, in retrospect? GONZALES: Senator, that was -- as I've gone back and reviewed, sort of, the implementation plan -- that was in essence, sort of, a talking point. It was not to get into specifics about issues or concerns about performance. But if you look at the documentation, it is clear that we struggled -- not struggled -- but this was an endeavor to identify those areas where there were issues or concerns about performance. Where we made a mistake, clearly -- I think -- is once we said "performance," we should have defined that. Because performance, for me, means lots of things. It means whether or not you've got the appropriate leadership skills, whether or not you've got the appropriate management skills. It may mean whether or not you support the president's policies and priorities. GONZALES: It may mean that you don't have -- that you have a sufficient -- that you have relationships with state, local and federal partners to discharge the mission of the office. And so there are lots of things that fall within, in my judgment, the definition of performance-related. And I think that, having said "performance-related," we should have been -- we should have defined what we meant by that. It didn't mean that the person was a bad lawyer, necessarily a bad manager. It may have been an instance where the person no longer continued to be the right person at the right time for that position. CORNYN: Well, I think that, invariably, when people's performance is placed in issue, then they feel the necessity to defend themselves. And that shouldn't have been required of them in a public forum like this. Because, unfortunately, their reputations now have been affected by this present controversy. And what concerns me even more is there have been attempts, I know on the House side particularly, to identify people who were reviewed, who were not relieved, and to further drag them and their reputations through this process. I think that would be a disservice to them and a serious mistake, to engage in that kind of fishing expedition. But, Mr. Attorney General, since I don't have a chance to ask you questions like this very often, let me change the topic, just briefly, to decisions made by federal prosecutors in recent border prosecutions. Senator Feinstein asked you about Carol Lam and some of her immigration-related prosecutions. But in particular, I've received a number of complaints from constituents about the prosecution and jailing of two Border Patrol agents from the El Paso area, agents Ramos and Compean. I assume you're familiar with that -- those. I'm confident you are, given the attention that it's received. And I'd like to ask you to answer these questions. And I'll ask you the questions, and my time will run out, and you'll feel free to answer them. Do you believe that the public has been fully informed by the news media about this case? Do you agree that a hearing by this committee on that case, at which time all of the facts can be explored, would be a legitimate exercise of our oversight responsibility? Would you in fact welcome such a hearing? And would you pledge, on behalf of the Department of Justice, full cooperation with the committee, as we prepare for such a hearing? GONZALES: Senator, it's hard for me to answer the first question. There is a lot of -- I think a lot of misinformation or disinformation about what happened here. I've known the prosecutor for many years. And I have confidence in his judgment. A jury agreed with the fact that these border agents who -- let me just say, Border Patrol agents should be saluted as heroes. They serve this very important function for our country, sometimes at the risk to their lives. But a jury agreed that, in this particular case, these two individuals broke the law. And not only did they break the law, but they tried to hide their crime. And Mr. Sutton, again, following the evidence, did what he thought was right, based upon the circumstances of this particular case. With respect to a hearing by committee, in terms of what happened here, I will say that the department will try to be -- as always, will fully cooperate. We'll try to be as helpful as we can. And I'd be happy to consider your request for a hearing. There's already a lot of information out there. But if we haven't provided more information about this, I'd be happy to do so. We want the committee to be reassured that, in fact, there was nothing improper that happened here as well; that Mr. Sutton, again, followed the evidence, a jury agreed that, in fact, a crime had been committed, and this was the right result. And if there's information that we have that we can provide to the committee to reassure the committee, we'd be happy to look at that. CORNYN: I know a hearing was scheduled, and then it was postponed. And my hope is that it can be rescheduled and we can have that oversight hearing to make sure all of the facts get out, not rumor, innuendo and speculation, but the facts, so we can conduct our proper oversight responsibilities and the American people can be reassured of what the facts actually are. CORNYN: Thank you, Mr. Chairman. LEAHY: I just want to make sure I fully understand something. It was mentioned, and I understand it to be a fact that President Clinton replaced 93 of the U.S. attorneys in the previous administration. How many of President Clinton's attorneys were replaced by President Bush? GONZALES: Eventually, Senator, I believe -- I don't know... LEAHY: It was either 92 or 93, I think you'll find. GONZALES: Over a period of time, that is correct, sir. There was a conscious decision made that we would not follow the model used by this president's predecessor, that it was too abrupt and disruptive, and that we felt that we ought to do the... LEAHY: Just because... GONZALES: ... resignations on staggered terms. LEAHY: ... I get a lot of calls from people who say, "Well, didn't President Clinton replace..." As I recall, just the period of time I've been here, President Carter replaced all of the Ford-Nixon U.S. attorneys. President Reagan replaced all of President Carter's. Former President Bush eventually replaced most of President Reagan's. President Clinton replaced President Bush's. And this President Bush replaced President Clinton's. I can't speak about what happened before I was in the Senate, but that is my recollection. Senator Feingold? SEN. RUSS FEINGOLD, D-WIS.: Thank you, Mr. Chairman. And let me just note that I hear a lot in my state about these border guard incidences as well, and look forward to whatever information is coming forward on that or hearings. Mr. Attorney General, you've sworn an oath today and that oath carries with it certain legal consequences. But you have a duty to the American people as a public servant to tell the truth when you speak to the public in a press conference, a news interview or by publishing an op-ed piece in the newspaper, don't you? GONZALES: Senator, I believe that when I speak to the American people and to the public that I should be truthful. And I endeavor to be truthful. FEINGOLD: Let me then go back to the subject that Senator Kohl brought up that's of particular interest to us in Wisconsin, on the question of the case of Georgia Thompson. This was the highly publicized public corruption case which got a lot of attention in Wisconsin during much of 2006, especially since it happened during the reelection campaign of the governor of the Wisconsin. On April 5th, right after oral argument in the case, the Court of Appeals for the 7th Circuit ordered that Ms. Thompson be immediately released from prison and her conviction was summarily reversed. I thought the report was wrong, because it's so unusual for an appeals court to simply release somebody at that level. The appellate judges suggested that the evidence in the case was extremely weak and said essentially the case should have never been brought. Can you understand why many citizens of my state, as they see this U.S. attorney scandal widen, are now questioning whether the U.S. attorney in Milwaukee could have possibly brought the Thompson case for political reasons? GONZALES: Senator, I don't -- I don't -- look at the facts here. Again, this was a career prosecutor. The charging decision was made in consultation with a then- Democratic state attorney general and a Democratic local prosecutor. When you allege or anyone alleges -- I'm sorry, when anyone alleges that in fact there may have been politics involved in this case, what does that say to that attorney general, to that local prosecutor, to the career investigators and career prosecutors? FEINGOLD: Let me interrupt here because time is so limited. I didn't ask you and I'm not alleging that there were political considerations here. I'm asking can't you see how this U.S. attorney scandal, a problem that has occurred throughout the Justice Department, leads to a situation where people wonder if there are political situations -- considerations. GONZALES: Senator, I can't speak to what may be in the minds of the people in your state. Again, I'm doing everything I can... FEINGOLD: Yes, I can, and I can tell you this overall problem here has led to some, you know, very unfortunate thoughts about the situation that may or may not be justified. I'm just trying to highlight what a problem this whole scandal has created. Do you plan to have the department's Office of Professional Responsibility review the Georgia Thompson case? GONZALES: Am I? FEINGOLD: Yes. Are you planning to have the department's Office of Professional Responsibility review this case that I just... GONZALES: Senator, I don't recall whether there's been action on that, but I'd be happy to consider that. FEINGOLD: I hope you will, because I think it's very important for the reason I just gave you. I also understand from press reports that the U.S. attorneys office in Milwaukee has provided documents to the Justice Department that are responsive to the letter that Senator Kohl and I sent, along with Chairman Leahy and other members of the committee, last week on this incident. FEINGOLD: When can we expect a response to our letter and the production of the documents we asked for? GONZALES: Senator, it's a recent request. I'm told that we're talking about a voluminous amount of records. We're in discussions with, I understand, committee staff and trying to do what we can to get documents up as quickly as we can. FEINGOLD: I hope it will be soon. Now, let me ask you about something that's been a major part of the questions of Senator Specter, Senator Kennedy, Senator Feinstein and others. And these are factual questions, so I hope they can be quick answers. Kyle Sampson has testified that he kept you generally informed about the process of identifying U.S. attorneys who might be asked to step down. Did you ever ask him for specific information about who he was speaking to in connection with this process, or what he was doing to follow up and check out the information he received? GONZALES: Senator, what I recall is telling Mr. Sampson, "Make sure the White House is appropriately advised, because these are political appointees," and telling him that I expected him to consult with the senior leadership at the department, people who would know best the qualifications, the performance of United States attorneys. FEINGOLD: This is what you told him to do, but I'm asking whether you checked back with him after he did it. GONZALES: Senator, I can't recall whether or not at the time he made the recommendations that I said "Does this -- who did you consult with and whose recommendations are these?" I'll tell you what I understood. What I understood... FEINGOLD: Let me continue. That is a sufficient answer: You say you don't recall having done that. 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. FEINGOLD: In light of the fact that you had so little to do with the decisions, and made so little effort to understand... GONZALES: I had everything to do with the decision. It was my decision. FEINGOLD: Well, so little to do with the basis for the decision or why it was done, and you made so little effort to understand the reasons behind them, you really had no basis for telling the American people in your USA Today op-ed of March 7th that these U.S. attorneys had lost your confidence, did you? GONZALES: Senator, what I understood was that the recommendations reflected the consensus judgment of the senior leadership of the department and that, therefore, the senior leadership had lost confidence in these individuals and thus the department had lost confidence. Now, I will say, I regret the use of those words. But clearly I understood that the senior leadership, that the recommendation made to me reflected the consensus view of the senior leadership of the department, of individuals who would know better than I about the qualifications of these individuals. FEINGOLD: Well, I recognize that you've stated this now. But you could have taken immediate steps to correct the misstatements in this op-ed. You could have sent a letter to the editor. Instead, you let what is essentially a false statement sit out there, harming the reputation of dedicated public servants. And I think that's inexcusable. GONZALES: Senator... FEINGOLD: Aside from the fact that you had so little to do with the decisions and made so little effort to understand the reasons behind them, you can't really say with certainty, as you did in your testimony today, quote, "that there is no factual basis to support the allegation, as many have made, that these resignations were motivated by improper reasons," unquote. You can't really say that, can you? GONZALES: Senator, I know the basis on which I made my decision. And I'm not aware of anything in the record, I'm not aware of any testimony which would seem to support the allegation that someone was motivated by improper reasons in making a recommendation to me. I don't think the documents support such an allegation. But just to be sure, I have asked the Office of Professional Responsibility to work with the Office of Inspector General to confirm this. I want to get to the bottom of this as well, Senator, just as you do. And I want to reassure the American people that there was nothing improper about what happened here. FEINGOLD: Well, I appreciate that sentiment at this point. But you didn't know then. And you don't know today how each of these people actually made it onto that list that you were presented with on November 27, do you? GONZALES: Senator, I've gone back and searched the record. I've spoken with the deputy attorney general and asked him whether or not he stood by the decision. And so that is his view. That is my view. The decision stands. It should stand. And I believe it was the right decision. I regret the way in which it was implemented. There were obviously mistakes in the review process. I've outlined to Senator Cornyn the things that I would done differently; that, in hindsight, I think would have been more appropriate. FEINGOLD: Well, you know, I'm obviously going to take that as a note to the question that I actually asked. But, you know, it's pretty clear that this is a situation that at the time you had no basis to know exactly how these people came to be on the list. The fact that various justifications have been made up or concocted after the fact doesn't cut it with me. GONZALES: Senator, if you look carefully at the documents, you can see that there were people at the Department of Justice looking at various issues with respect to U.S. attorneys. A lot of documentation with respect to immigration and gun prosecution with respect to Carol Lam. There is some documentation with respect to (inaudible) and Mr. Bogden. There's documentation with respect to the information sharing and Mr. McKay. So there is documentation, Senator, about these reasons. There may be other evidence or information in the minds of fact witnesses that you have access to, that I don't have access to. But it's because I want to respect the integrity of this process. FEINGOLD: There's no credibility to the notion that it was your considered judgment that those justifications were the reason for removing those people at the time. There's simply nothing in the record that demonstrates that you had a sufficient effort made to make that determination. GONZALES: Senator, I thought I had a good process in place. I think I'm justified in relying upon the judgment of the senior leadership of the Department of Justice. I think I'm justified in relying upon the people who know a lot more about the qualifications and performance of United States attorneys, and accepting that recommendation. I did have in my mind, at least information -- or reasons with respect to five of these individuals. I was not surprised that they were recommended to me based upon my knowledge. FEINGOLD: Thank you, Mr. Chairman, for the extra time. LEAHY: Thank you very much. Senator Sessions? SESSIONS: Mr. Attorney General... [ PART II ] LEAHY: Before we start the clock on Senator Sessions, just so we'll know what the timing is, after Senator Sessions will be Senator Schumer, then Senator Graham, then Senator Durbin. Go ahead, Senator Sessions. SEN. JEFF SESSIONS, R-ALA.: Mr. Attorney General, I think the thing that caused a lot of us concern was, you had a press conference at the Department of Justice. It was a formal matter to address these issues. And in that press conference you stated, "I was not involved in seeing any memos; was not involved in any discussions about what was going on." SESSIONS: And in a later press conference you said, "I don't recall being involved in deliberations involving the question of whether or not a United States attorney should or should not be asked to resign. I didn't focus on specific concerns about individuals." Now, Mr. Sampson then had testified that there was a meeting, a final meeting, I guess, when this was discussed in some detail and that you were present. Do you recall that meeting and where it took place? GONZALES: Senator, I have searched my memory. I have no recollection of the meeting. My schedule shows a meeting for 9:00 on November 27th, but I have no recollection of that meeting. My understanding is, as I reviewed Mr. Sampson's public testimony, was that he had hazy recollections about it as well. But, in any event, I have no recollection of that meeting. SESSIONS: Well, do you recall who Mr. Sampson said was there present along with you? GONZALES: Senator, I recall looking at the documentation about -- on the calendar -- who would be there. GONZALES: It would be the deputy attorney general. And I have no memory... SESSIONS: McNulty? GONZALES: Yes. I have no memory of this, but I think the calendar shows that the invitees were the deputy attorney general; the principal associate deputy attorney general, Mr. Will Moschella; Kyle Sampson, the chief of staff; Mike Battle, the executive director of the Executive Office of United States Attorneys; Monica Goodling, senior counselor in the Attorney General's Office; and myself. SESSIONS: And this was not that long ago. This was in November of last year? GONZALES: According to my calendar, November 27th. SESSIONS: And Mr. Sampson seemed to indicate that he really -- he understood it was a momentous decision, that there would probably be political backlash. He even performed some outline about how that should be managed. And you don't recall any of that? GONZALES: Senator, I can only testify as to what I recall. Believe me, I've searched my mind about this meeting. I'd have no reason not to talk about this meeting. At some point, of course, Mr. Sampson presented to me the recommendations. And at some point I understood what the implementation plan was. But I don't recall the contents of this meeting, Senator. I'm not suggesting that the meeting did not happen. SESSIONS: I know. But I'm worried about it. And Mr. Battle, who was there, testified that you were there. And he thought you were there most of the time. Would you dispute Mr. Battle? GONZALES: Well, Senator, putting aside the issue, of course, sometimes people's recollections are different, I have no reason to doubt Mr. Battle's testimony. SESSIONS: Well, I guess I'm concerned about your recollection, really, because it's not that long ago. It was an important issue. And that's troubling to me, I've got to tell you. GONZALES: Senator, I went back and looked at my calendar for that week. I travelled to Mexico for the inauguration of the new president. We had National Meth Awareness Day. We were working on a very complicated issue relating to CFIUS. GONZALES: And so there were a lot of other weighty issues and matters that I was dealing with that week. You have to remember that this was a process that had been ongoing for two years. This wasn't something that just showed up one day on my desk. And I'm not downplaying the importance... (CROSSTALK) SESSIONS: Well, what about the mention you made of a call to Senator Kyl? Was that at this day about one of the U.S. attorneys in his district, his state? GONZALES: Senator, I don't understand what the question... SESSIONS: You indicated you made a phone call to Senator Kyl... GONZALES: Yes, that was on... SESSIONS: ... about the decision you'd made... GONZALES: Yes, that was on December 7th, as I recall, December 7th... SESSIONS: ... later on. GONZALES: ... the day we were implementing -- the day the plan was being implemented. SESSIONS: Well, Mr. Gonzales, with regard to United States attorney Iglesias, there were concerns about vote fraud. Senator Feingold has raised concern about a United States attorney in his district on vote fraud. Senator Cornyn has raised questions about a decision by a United States attorney in Texas on prosecuting Border Patrol agents. So I would suggest, first, there's nothing wrong with questioning a United States attorney, by a politician or anyone else -- raising questions about it. But I would tell you what I think Mr. Iglesias was entitled to, as a member of the Department of Justice who's out there on the field, I think he should have been inquired of about this voter fraud case. And I'm going to tell you, I have prosecuted voter fraud cases. They are the most controversial things you can imagine. And sometimes they look like they're easy to prosecute. And I've been criticized, as attorney general, for not being aggressive in that. And I've been criticized as a United States attorney over those cases. So I would just suggest to you that that is a delicate matter. And I think somebody should have met with him to ascertain his judgment on that. GONZALES: Well, but I think -- you're absolutely right. It is a delicate matter. It's one thing to tell Mr. Iglesias, "How are you doing on voter fraud cases generally?" But if you're talking about inquiring about a specific case, that is really delicate, because simply inquiring into the case sends a message to the United States attorney. And if you mention, "Oh, by the way, the homestate senator, the guy who recommended you for this job, is concerned about how you're doing on this case," that's really dangerous. And so... SESSIONS: Well, perhaps, but you know, we're all -- United States attorneys have to be tough, too, you know? I mean, they have to defend what they do. And if Senator Feingold wants to ask about a voter fraud case, somebody at some point, I think, should inquire as to what he can say about that case and to form an opinion on it. SESSIONS: Let me ask you a couple of things I think that were somewhat important from your perspective. Apparently, there was a suggestion that Harriet Miers, the counsel to the president, that all the United States attorneys should be fired; you should start over again after the first four years of the Bush administration. I thought you responded well, as I understand it, to that. What did you say to that? GONZALES: Senator, my recollection is that I didn't think that would be a good idea. Now, let me just say I don't know whether or not that was Harriet Miers' idea, whether even she supported the idea. But I recall Mr. Sampson coming to me and telling me that this was an idea raised by Ms. Miers. SESSIONS: You rejected that. GONZALES: Yes. SESSIONS: And then Kyle Sampson proposed -- Senator Feinstein has expressed concern about the new law that allows appointment without potential confirmation hearing here. She asked about that. Mr. Sampson said these appointments should be made under that new act. I believe he testified that you disapproved and said no and that, quote, "The attorney general was correct." Is that a fair statement? GONZALES: Senator, I never liked this idea, quite frankly, because I believe it's important for United States attorneys to be presidentially appointed and confirmed. They've got to knock heads sometimes with other federal officials and with state and local officials, and I just think it makes them look stronger to have been through that process. And, quite frankly, I thought it was, kind of, a dumb idea, because the first time we would do it, as a matter of routine, the Senate would simply change the law. And so I never liked the idea. And the first opportunity, the first concrete time, opportunity that came up was with respect to Mr. Griffin in the Eastern District of Arkansas. And I had conversations with Senator Pryor, and I told Senator Pryor, "We're going to put in Tim Griffin in an interim basis. I want to see how he does. You should see how he does. Let's see how he does." And ultimately... SESSIONS: You did not utilize the new act? GONZALES: Pardon me? SESSIONS: You did not utilize the new... GONZALES: Even before the change in the law, the attorney general had the authority to put someone in, in an interim basis, for at least 120 days. That's been true for many, many years. What changed here was that, eliminating the 120-day requirement, that I had told Senator Pryor I wanted Mr. Griffin in for a period of time. Let's see how he does. And then in a subsequent conversation with Mr. Pryor, I asked him, "Can you support Mr. Griffin as the nominee?" And, you know, he made it clear to me that he would not support him by not giving me a yes answer. And so I said, "Well, I cannot recommend him to the White House, because if you don't support him, I know that he will not be confirmed. We'll look for someone else and give me names that we ought to consider." But the first concrete opportunity that came up with respect to this interim authority and avoid Senate confirmation, what I did was consult with the homestate senator, solicited his views. GONZALES: And when I believed that he was not going to be supportive of Mr. Griffin as a nominee, I said, "Fine. We won't -- we'll look at a different direction." SESSIONS: My time has expired. LEAHY: Well, Senator, the -- under the law that we then voted to repeal, you could have kept him in there, whether Senator Pryor wanted him or not. You know, Mr. Attorney General, you said in answer to Senator Sessions's question, you don't recall the November 27 meeting where you made the decision. GONZALES: Senator, I don't think -- I don't know that a decision was made at that meeting. LEAHY: How can you be sure you made the decision? (LAUGHTER) GONZALES: Senator, I recall making the decision from this -- I recall making the decision. LEAHY: When? GONZALES: Sir, I don't recall when the decision was made. LEAHY: OK. We may go back to that. Senator Schumer? SCHUMER: Thank you. LEAHY: In fact, count on it. SCHUMER: Thank you, Mr. Chairman. LEAHY: And I will ask -- again, I would advise the people in the audience, this is a serious matter. Out of respect both for the Senate and the attorney general, I would ask not to have any displays of either approval or disapproval. You're certainly going to have plenty of time to state that publicly, in one way or the other, to the press, but not here. SCHUMER: Thank you, Mr. Chairman. Thank you, Mr. Attorney General. First I want to just go back to an interchange that you had a couple of minutes ago. You told Senator Feinstein that Carol Lam was, quote -- these are your words -- "acutely aware of the department's concerns about her immigration enforcement." Now let me read to you a portion of Mr. Sampson's public testimony on March 29th. He said, quote, "I'm not suggesting that someone did give Carol Lam notice." These are his words: "I think we did not give -- no one, to my knowledge, talked to Carol Lam about the concerns we had in the leadership of the department about her office's immigration enforcement." SCHUMER: Now, this is Kyle Sampson, the man you said was at the center of the whole decision-making process, saying she was not given notice, and yet a few minutes ago you told Senator Feinstein that she was, quote, "acutely aware." GONZALES: Notice of what? SCHUMER: Which is right? GONZALES: Notice of what, Senator? SCHUMER: Notice -- both cases of immigration enforcement. GONZALES: Senator... SCHUMER: Both. GONZALES: I'm not going to characterize Mr. Sampson's testimony. What I will tell you is what I recall, and I will tell you what I've learned from looking at the documents. And I believe that in looking at the documents there was communication with Ms. Lam about how she was doing with respect to immigration. There was a lot of communication by members of Congress with Ms. Lam about immigration. And so she was aware that there was some concern, certainly interest about how she was doing... (CROSSTALK) GONZALES: Otherwise, why would we contact her? SCHUMER: Senator Feinstein just informs me, Carol Lam was not aware of the immigration -- of the Justice Department's views on her prosecution of immigration. Kyle Sampson says she was not aware. And you are saying that the department made her aware. And this is what we've been through all morning. The people that we have interviewed, whether it's Kyle Sampson or Mercer or Battle, have contradictory statements as to what you say. Now, I am sure when the department has trouble with a U.S. attorney they don't tell a congressman to go tell her. Which is right? GONZALES: Senator, I recall sitting in a meeting, concern about Ms. Lam, and saying that those numbers needed to change. And I expected that information to be communicated. Now, Ms. Lam may not have been told that, in fact, "If you don't change your policies, there's going to be a change." But I believe, looking at the documents -- and I never spoke to her directly -- but I believe, looking at the documents, that she had knowledge that there was certainly an interest about her immigration numbers. And why would we have an interest? Because of the fact that we were concerned about those numbers. SCHUMER: OK. Kyle Sampson said no one told her. She said no one told her. GONZALES: No one told her what? No one told her that if -- that there was any interest or concern? Or no one told her that, "If you don't change, you're going to be removed"? SCHUMER: I'll yield to my colleague. FEINSTEIN: If I may, Attorney General, Carol Sampson (sic) said she was never spoken to by... SCHUMER: Carol Lam. FEINSTEIN: Excuse me. Carol Lam said she was never spoken to by the department about their concern on her immigration. SCHUMER: Now, let me just say, Mr. Attorney General, this is a serious hearing; you've had months to prepare. The U.S. attorney in question says she wasn't spoken to. SCHUMER: Kyle Sampson at public testimony -- not the private transcripts, not a private conversation -- says the same. GONZALES: Senator, I didn't say I did not say that Ms. Lam was aware that if her numbers didn't change we would have asked her to resign. What I said was that she was aware of the concerns and certainly the interest that we had about her performance. There's no question about that. If you look at the letters, if you look at the e-mail communication, there is no question about that. SCHUMER: Sir, I'm going to move on. I think the record will state just what we have stated; that she doesn't believe she was talked to, and Kyle Sampson doesn't believe she was talked to... GONZALES: When you say talked to... SCHUMER: ... about immigration concerns. That was Senator Feinstein's question. That's what Carol Lam said. That's what Kyle Sampson did, but we're going to move on here. GONZALES: Senator, why would members of Congress send her letters about her immigration performance? SCHUMER: Sir... GONZALES: Why would they want to have meetings with her? SCHUMER: Sir... GONZALES: Why would we send her communications about immigration? Because there was concerns about her numbers. SCHUMER: Is it general policy of the Department of Justice when they have problems with a U.S. attorney to let a Congress member tell them something is wrong or is the department supposed to communicate directly with the U.S. attorney? GONZALES: Here's what I'll say: I think we should have done a better job in communicating with Ms. Lam. I think we should have done a better job in communicating with all of these United States attorneys. I've already conceded that, and that's one of the things that we're going to institutionalize moving forward. SCHUMER: But, sir, the issue goes beyond that. It goes to who is telling the truth around here. (CROSSTALK) SCHUMER: You are saying -- you said a minute ago she was told. She is saying, Kyle Sampson is saying, she was not told. It's beyond doing a better job. It's getting to the real truth in a hearing where you've had a month to prepare, where all of these things are public. It's a key question and it's still an answer that contradicts what others have said, but I'm going to move on because I have limited time. This is about another issue. There's a real question raised by this investigation about whether you and the Department of Justice intended to bypass the Senate's role in confirming the U.S. attorneys. It relates to the law that Senator Feinstein passed and all but two of us in the Senate voted for. And equally troubling, as I mentioned, there's a real question about whether you were honest with the members of Congress about your intent. And this is a serious matter. GONZALES: I agree, Senator. SCHUMER: So let me -- to emphasize how serious -- I want to read to you what Senator Pryor had to say on the floor of the Senate about his interactions with you as... GONZALES: Can I see his transcript? SCHUMER: Yes, but I'll read it. SCHUMER: It's very clear. And I'm sure you know it, his searing words, as you will hear. GONZALES: I would like to see it. SCHUMER: We'll get it to you. As everyone here knows, Senator Pryor is one of the most temperate members of the Senate. He's mild-mannered, and his words are all the more striking for that reason. He said, quote, "The attorney general not only lied to me as a person but, when he lied to me, he lied to the Senate and he lied to the people I represent." I spoke to Senator Pryor yesterday. He stands by those words. Now, Kyle Sampson wrote that -- wrote to Harriet Miers last September -- that's what he wrote -- he wrote that they wanted to do this plan of getting around the Senate and appointing interim U.S. attorneys. And he also told Congress that the White House never rejected the idea of evading the Senate confirmation in the Eastern District of Arkansas. According to Kyle Sampson, you became aware of this idea or plan in early December of 2006. He told you about it; you did not reject it. Then on December 19th, Kyle Sampson is promoting this astonishingly perverse plan. He's going forward with it. And this poster which we have here -- and I'll get you a copy of what it says -- shows it. Sampson's advice to the White House is, quote, "We" -- we, meaning the department -- "should gum this to death, to run out the clock." He lays out a specific plan for running out the clock: The Department of Justice should ask Arkansas senators to meet Tim Griffin, give him a chance; after that, the administration to pledge to desire a Senate-confirmed U.S. attorney and so forth. The plan was to use these tactics of delay so Griffin could stay in, without Senate confirmation, until the end of the president's term. But now, four days before Kyle Sampson sends that plan, you personally talked with Senator Pryor. Kyle Sampson testifies that he was in the room -- you talked to him twice, he was in the room on one of those occasions -- about Tim Griffin. Kyle Sampson says you talked with Senator Pryor two times. He was in the room. And you said to Senator Pryor that you wanted to go through a Senate confirmation. This is in December. GONZALES: Yes. SCHUMER: Well, what would you think if you're in Senator Pryor's shoes? There's a plan to circumvent U.S. attorneys early in December. You go along with that. GONZALES: I didn't go along with it. SCHUMER: On December 19th, a memo was sent to implement it. Yet, on December 15th, you're on the phone with Senator Pryor saying oh, no, no, you're going to get confirmation. So, which is it? Again, did Kyle Sampson put out this memo completely on his own? GONZALES: Senator... SCHUMER: And if he did -- I mean, you can't have it both ways. If your chief of staff is implementing a major plan that contradicts what you just told the U.S. senator from that state, in my view, you shouldn't be attorney general. And if, on the other hand, what you said to Senator Pryor contradicts the plan, you also shouldn't be attorney general. Can you explain what happened here? GONZALES: Yes. SCHUMER: Because I am totally sympathetic with what Senator Pryor said. GONZALES: Mr. Sampson also testified, 15 to 20 times, in various ways, that I either rejected this plan; I never liked this plan; I thought it was a bad idea; never considered it; would not have considered it. SCHUMER: No, he said that you did know about it. SCHUMER: He told you about it. GONZALES: Senator... (CROSSTALK) GONZALES: ... he said I either rejected it, didn't like, thought it was a bad idea, wouldn't consider, didn't consider it. SCHUMER: OK. Then he went ahead, when you didn't like the plan, on December 19th? GONZALES: Senator, I... SCHUMER: That was later that you didn't like the plan. Kyle Sampson said in December you had no rejection of the plan. But let's even assume you didn't like it. What are we to think, as U.S. senators? You don't like a plan. Your chief of staff, the man in charge of everything, even though you are saying, "Don't do this plan," puts out something to go ahead and go forward. Who's running the department? GONZALES: Senator, I wasn't aware of this e-mail. But, again, I want to be very, very clear about this. I never liked this plan. SCHUMER: You never liked the plan, and your chief of staff four days after you assure Senator Pryor otherwise, puts out a detailed, step-by-step process on how to implement the plan. Does that indicate someone who's running the department? GONZALES: Senator, Mr. Sampson has testified that this was a bad idea. And it was a bad idea. And it was never accepted not only by me, but he also testified as to the principals. SCHUMER: Mr. Sampson said it was a bad idea in retrospect in February in March. In December, he was going full bore ahead with the plan, as the memo you've just been shown shows. GONZALES: And he's also testified, if we're going to go on his testimony, that this is a plan I never liked, that I rejected it... SCHUMER: No. That is not what he testified to, sir. Go look at the transcript. In December, he says, you did not reject the plan when he talked to you about it. GONZALES: Sir, I don't recall the exact time frame. But he also said that I never liked this idea. I didn't consider it and wouldn't consider it. LEAHY: Gentlemen. SCHUMER: I would just say, sir, that it defies credulity that your chief of staff four days after you tell somebody you're going one way goes exactly the opposite way... LEAHY: Senator... SCHUMER: ... and says that you never rejected the plan when you say you did. Thank you, Mr. Chairman. LEAHY: Obviously, though, you accepted the use of the provision in the Patriot Act to replace a number of senators (sic). And now, in probably the strongest bipartisan vote I've seen in the Senate in years, we've voted to remove that from the Patriot Act. GONZALES: Senator, if you look at the record, the reauthorization of the Patriot Act was March 9. The administration has nominated to virtually all these vacancies. We are pursuing, and have been pursuing and respecting the role of the Senate. And I take issue with Senator Schumer's characterization. LEAHY: Well, we'll go -- we will go back to that. And we have been -- Senator Graham has been waiting patiently. But I would note that when you talk about sending up nominations for these vacancies, you send two nominations, 21 vacancies. That's one out of 10. GONZALES: Senator, sometimes it's because we have to wait for recommendation of home state senators. So let's look at their performance as well. LEAHY: Sometimes I think one would look for the possibility of a nomination before they start firing people. But... GONZALES: We want to continue working with the Senate. GRAHAM: Thank you, Mr. Chairman. Is it my turn? LEAHY: I'll let that one go. We have a difference of opinion. (LAUGHTER) Go ahead, Senator Graham. SEN. LINDSEY GRAHAM, R-S.C.: Well, let's make sure that we understand the two things we're talking about, in terms of plans. One plan was to get rid of all 93 U.S. attorneys at once. Is that correct? GONZALES: Sir, I don't know if I would call it a plan. It was an idea that was raised. GRAHAM: OK. And it was shot down? GONZALES: That is correct. GRAHAM: OK. Now, this plan that you were talking about with Senator Schumer involves what? GONZALES: It was -- as I understood it, what I expected Mr. Sampson to do was coordinate a review of all U.S. attorneys and make an evaluation, make a recommendation to me, as to where there were issues of concerns of particular U.S. attorney districts where it may be appropriate to make a change to benefit -- for the benefit of the department. GRAHAM: Well, this December memo that he's talking about, or e- mail -- what's the point there? From your point of view, how do you reconcile the conversation with Senator Pryor in the e-mail? GONZALES: Senator, it's difficult for me to reconcile the conversation. All I know is what I communicated to Senator Pryor, in good faith. GRAHAM: Was? GONZALES: Was that we wanted to put Mr. Griffin in, on an interim basis. I didn't know Mr. Griffin that well. And I wanted to see how he did. And I recall telling him... GRAHAM: The reason Mr. Griffin was going to be put in is because the White House wanted him to have an opportunity to serve in this position. GONZALES: This was a well-qualified individual, yes, and the White House had a desire to have him serve. GRAHAM: And it's no problem with Mr. Cummins performance, it was just a preference for somebody new in the second term. GONZALES: I would say that's a fair statement. GRAHAM: OK. Now, if you told Mr. Sampson 15 or 20 times, "This is a bad idea," why didn't it sink in? GONZALES: Sir, I didn't tell him 15 or 20. I don't recall telling him 15 or 20 times as I reviewed the transcript from his testimony. He was asked repeatedly about whether or not, "Was this something the attorney general supported or approved?" And my recollection is, is that 15 to 20 times he said something like, "I didn't consider it. I wouldn't consider it. Thought it was a bad idea. I rejected it. It was rejected by principals." So 15 to 20 times as I recall this question was posed to Mr. Sampson in one way or another to try to get a sense... GRAHAM: And he always said you never bought into this idea. GONZALES: Well, sir, he never said that, as I recall, in his testimony. And, again, the first opportunity really where this came up... GRAHAM: But he always said that you disagreed with this plan. GONZALES: I believe he said I didn't like it. Look, I know I didn't, I never liked it. I thought, again... (CROSSTALK) GRAHAM: Again, what didn't you like? GONZALES: What I didn't like was the fact that I think it's more important to have U.S. attorneys nominated by the president and confirmed by the Senate because I believe certainly the appearance of more authority, and it makes them more effective. GRAHAM: And the White House had a different view. GONZALES: Sir, I can't speak for the White House... (CROSSTALK) GRAHAM: But where did this idea come from? GONZALES: Which idea, sir? GRAHAM: The idea of Senate confirmation being changed. GONZALES: Sir, well, I can't speak to where the idea came from. But what I can say is I supported the idea because I don't -- I supported a change in the law, not the idea of avoiding Senate confirmation, I avoided -- I supported a change in the law because I didn't like the notion of a judge telling the attorney general who should be on his staff. And the prior law had a requirement that after 120 days of an interim appointment then the chief judge in the district makes the decision about who serves as the acting United States attorney. GRAHAM: Well, just some personal advice. You know, we all respect Senator Pryor, and he said some pretty harsh things, which is out of character. GRAHAM: So I would just advise you to sit down with him and walk through what happened, because I think he's a reasonable fellow, and you all straighten that out if you can. GONZALES: Senator, I couldn't agree more. I have a great deal of admiration for Senator Pryor, and I think that's a good idea. GRAHAM: I guess my basic problem is that, you know, you apologized here in April to all the U.S. attorneys (inaudible) pretty hard times about their job performance. And you gave a very good explanation to Senator Brownback about each person. But it took us a long time to be able to mill that down. And you've given news conferences where things were -- you didn't have any ownership of the process, basically. You delegated it. You made the final decision, but the process itself -- is it fair to say that when you made your final decision, it was based on trust of your senior team more than it was knowledge? GONZALES: I think that's a fair assessment. Again, what I understood was that the recommendation that would come to me would be a consensus recommendation of people that I trusted that would know most -- certainly better than I -- about the qualifications and performance of United States attorneys. GRAHAM: And my basic question is that the decision to replace people based on poor performance that you would roll out to the nation, because eventually it was your decision -- I know you've said this but it really does bother me that people like Mr. Iglesias apparently were never able to tell their side of the story. And if someone came to me and said, "This person has to go, they're not doing their job well in terms of prosecuting a particular case or a series of cases, they need to go," no one seemed to contact Mr. Iglesias and say, "What is your side of the story?" GONZALES: Senator, I agree with that. I think in hindsight, certainly, what I've discovered is that we don't have good enough communication between... GRAHAM: But you said Ms. Lam did have notice of her poor performance. GONZALES: Senator, I think Ms. Lam certainly had notice of the fact that there was interest, if not concern, about her immigration numbers. GONZALES: There were meetings. There was communication with her. GRAHAM: I guess what I'm trying to wonder, is this really performance-based or did these people just run afoul of personality conflicts in the office and we were trying to make up reasons to fire them because we wanted to get rid of them? GONZALES: Sir, I think if you look at the documentation, I think you can see that there is documentation supporting these decisions. GRAHAM: Mr. Attorney General, most of this is a stretch. I think it's clear to me that some of these people just had personality conflicts with people in your office or at the White House and, you know, we made up reasons to fire them. Some of it sounds good. Some of it doesn't. And that's the lesson to be learned here. GONZALES: Sir, I respectfully disagree with that. I really do. GRAHAM: Well, I do believe this: that you never sanctioned anybody being fired because they wouldn't play politics a particular way. GONZALES: I would not do that. GRAHAM: I do believe that your associates have prosecuted both Democrats and Republicans. I don't believe you're that kind of person. I don't believe that you're involved in a conspiracy to fire somebody because they wouldn't prosecute a particular enemy of a politician or a friend of a politician. But at the end of the day, you said something that struck me, "That sometimes it just came down to these were not the right people at the right time." If I applied that standard to you, what would you say? GONZALES: Senator, I think what I would say -- Senator, what I would say is, is that I believe that I continue to be effective as the attorney general of the United States. We've done some great things... GRAHAM: And you have done some very good things. I agree with that. GONZALES: ... in the past few years. And I acknowledge the mistakes that I have made here. I've identified the mistakes. I know what I would do differently. I think it was still a good idea... GRAHAM: What kind of damage do you believe needs to be repaired on your part, with the Congress or the Senate in particular? GONZALES: Senator, I think I need to continue to have dialogue with the Congress, to try to be as forthcoming as I can be, to reassure the Congress. I've tried to inform the Congress that I don't have anything to hide. GRAHAM: Right. GONZALES: I didn't say no to the document request. I didn't say, "No, you can't interview," to my internal staff. I didn't -- you know, I asked OPR to get involved. I've done -- everything I've done has been consistent with the principle of pursuing truth and accountability. GRAHAM: Finally, you are situationally aware that you have a tremendous credibility problem with many members of the Congress? And you're intent on trying to fix that today as a start, right? GONZALES: Absolutely, Senator. GRAHAM: Thank you. LEAHY: Senator Durbin of Illinois? SEN. RICHARD J. DURBIN, D-ILL.: Thank you, Mr. Chairman. Thank you, Mr. Attorney General, for being with us today. When you were White House counsel, did you ever sit in on these meetings with the attorney general and Karl Rove to discuss judicial nominations, nominations for U.S. attorneys? GONZALES: Senator, that's an internal White House process of making decisions about judicial nominees and U.S. attorneys. Mr. -- I was a part of that committee. Mr. Rove would occasionally -- I would say infrequently, but he would occasionally be present at these meetings. DURBIN: Do you recall the conversation leading up to the nomination of Patrick Fitzgerald to be the U.S. attorney for the Northern District of Illinois? GONZALES: I do not. DURBIN: You were not present? GONZALES: I do not recall. I thought your -- I'm sorry, I thought your question whether you recall the conversation -- I don't recall the conversation. I don't recall whether or not I was present. I suspect I probably was, but I don't recall. DURBIN: It's been reported that Mr. Rove had misgivings about Patrick Fitzgerald coming into the situation because of political impact it might have in my state of Illinois. Do you remember any statements by Mr. Rove to that effect? GONZALES: I don't recall, Senator. Where has it been reported? DURBIN: It's been reported in the New York Times. I can read portions of it to you, but it's in the March New York Times article, just recently published. But I'd like to ask you this: You took over as attorney general, if I'm not mistaken, in January of 2005. GONZALES: I believe it was in February of 2005, sir. DURBIN: February 2005. At the time, you knew who Patrick Fitzgerald was. GONZALES: Yes, sir. DURBIN: He was a rather high-profile U.S. attorney, having been chosen as a special prosecutor by Deputy Attorney General Comey to investigate the Valerie Plame incident and the involvement of the vice president's office and other offices. Is that correct? GONZALES: That is correct. DURBIN: And when you arrived -- shortly after you arrived, there was an evaluation made of Patrick Fitzgerald's performance as U.S. attorney. Do you remember that evaluation? GONZALES: Senator, I think you -- no, sir, I don't. I don't know what evaluation you're referring to. (CROSSTALK) DURBIN: The evaluation I referred to is one by Mr. Sampson. It's a list, some of them... GONZALES: OK. I'm aware now of what you're referring to. DURBIN: And you're aware of the fact that Patrick Fitzgerald, who had been designated special prosecutor, who was in the process of investigating any criminal wrongdoing by members of the president's or vice president's staff was given a recommendation, quote, "has not distinguished himself either positively or negatively." Do you remember that? GONZALES: Senator, now I'm aware of this. I didn't know about this at the time. But subsequent -- I mean, recently I've become aware of this issue. DURBIN: So these evaluations by Kyle Sampson of U.S. attorneys were never shown to you? GONZALES: Senator, I don't recall ever seeing these evaluations. DURBIN: So let me ask you point blank: Do you think that was a fair evaluation of Mr. Fitzgerald at that time? GONZALES: Well, let me say a couple of things. One, I recused myself and had been recused with respect to Mr. Fitzgerald and the investigation. Two, even if I weren't recused, I would have serious questions about an evaluation of a U.S. attorney involved in this kind of prosecution. GONZALES: And third, let me just say that, based upon my own personal knowledge and experience, I think Mr. Fitzgerald is an outstanding prosecutor. DURBIN: Are you aware of the fact that Kyle Sampson testified under oath that he recommended to Harriet Miers that Patrick Fitzgerald also be removed as a U.S. attorney as part of this purge? GONZALES: Senator, I'm aware of what he said. I remember reading the transcript. I'm not sure if it was a recommendation per se. I'm aware of what he said in his testimony, yes, sir. DURBIN: Did he speak to you before he made that recommendation and tell you that he was going to ask for Patrick Fitzgerald to be removed in the middle of this investigation of the White House? GONZALES: I don't recall him speaking to me about that, sir. DURBIN: It didn't happen, it did happen, or you don't recall? GONZALES: Senator, again, you're talking about events that happened over two years, thousands of conversations. I don't think that conversation occurred. DURBIN: Now, Mr. Gonzales, this is the highest-profile U.S. attorney... GONZALES: Yes. DURBIN: ... in America. He's investigating the White House, including people that you have worked with for years. And now your chief of staff is going to make a recommendation to the president's White House counsel that he be removed as U.S. attorney, and you can't remember that conversation? GONZALES: Senator, I don't think that conversation happened. I don't think he ever made that recommendation to me or raised it. And I wouldn't characterize it as a recommendation. I would refer you back to his testimony. But whatever it was, I don't think that -- I don't think he raised it with me. 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. DURBIN: How about the fate of Mr. Iglesias himself? I mean, was that something that you were party to, the decision for his removal? GONZALES: It was my decision. DURBIN: And now that you reflect on that decision, having looked at his performance and considered the calls that were made by members of Congress, do you still think that was the right decision? GONZALES: Senator, I think that is a very fair question. Obviously -- and by the way, this is a matter being investigated by the Congress so I'm not conceded that, in fact, what Mr. Iglesias said was true. There is -- Senator Domenici and Congresswoman Wilson will have their opportunity to present their story. But if a member of Congress contacts a U.S. attorney to put pressure on them on a specific case, that is a very, very serious issue. And if, in fact, we had known -- if the deputy attorney general, I believe, had known about these calls, which Mr. Iglesias admitted that he did not contact us, would it have made a difference? It probably would have made a difference. But now we're looking in hindsight, and so what we also know is that Mr. Iglesias did not report these conversations. That was a serious transgression. He intentionally violated a policy meant to protect him. And so as we weigh these additional facts, my conclusion is is that I stand by the decision that Mr. Iglesias should not longer serve as a United States attorney. DURBIN: In the situation with Carol Lam, did you have any conversations with Karl Rove about her fate? GONZALES: Senator, I don't recall having any conversations with Mr. Rove about Ms. Lam in connection with this process. DURBIN: Let me conclude, Mr. Chairman. I thank everyone for their patience here. I'm going to send this article down to you, and I wish you'd take a look at it. It's an article published in the Chicago Tribune, April 17th, by Patrick M. Collins. Do you know Mr. Collins? GONZALES: I don't believe I do, sir. DURBIN: Mr. Collins served as the assistant U.S. attorney from 1995 to March 2007, was the lead prosecutor in the trial of the former governor of Illinois, worked with Mr. Fitzgerald. He believes that your continued service creates a problem for people who have served in his position as assistant U.S. attorney. And he believes that, frankly, it raises questions about their impartiality when it comes to public corruption cases. He says, in conclusion here, "While U.S. attorneys serve at the pleasure of the president, they must never serve only to please the president.' GONZALES: I agree with that. DURBIN: And I think that we have heard here, about some of the political considerations; comments about loyal Bushies by Kyle Sampson, the involvement of Mr. Rove in decisions about the fate of some of these U.S. attorneys, raises a serious question as to whether or not your continued service is going to make it difficult for professional prosecutors in the Department of Justice to do their job effectively. GONZALES: Senator, if I could respond, I think, again, it's absolutely true that this is not about Alberto Gonzales. It's about what's best for the department, and whether or not I can continue to be effective in leading this department. I believe that I can be. I think that there are some good things that, working with this committee, I can accomplish on behalf of this country. Clearly, there are issues that I have to deal with. And I'm going to work as hard as I can to reestablish trust and confidence with this committee and members of Congress, and of course, with the career professionals at our department. And all the credit, everything that we do, the credit goes to them. And so, when there are attacks against the department, you're attacking the career professionals. DURBIN: Now, Mr. Gonzales, that is like saying, if I disagree with the president's policy on the war, I'm attacking the soldiers. GONZALES: What I'm saying is, you should... DURBIN: The fact of the matter is... GONZALES: You should attack me. (CROSSTALK) GONZALES: You should attack me. (APPLAUSE) DURBIN: Your conduct of this department has made it more difficult for these professionals to do their job effectively. GONZALES: And I'm going to deal with that. DURBIN: And if you ignore that reality, then you cannot be effective as an attorney general. GONZALES: Senator, I understand that. And I'm going to work at that. What I'm saying is, is that be careful about criticizing the department. Criticize me. DURBIN: Mr. Gonzales, this testimony today, is from you, about your reputation. It is not about the reputation of the men and women working in these offices. GONZALES: Thank you, Senator. LEAHY: What we will do is -- so everybody... PROTESTER: (OFF-MIKE) We all know what (OFF-MIKE) LEAHY: ... so everybody will understand. Officer? What we will do, if I might have the attention of everybody here, we will break for lunch until 2 o'clock. After lunch, provided the funeral is over, we'll recognize Senator Grassley, then Senator Cardin, then Senator Coburn, then Whitehouse, and then Senator Kyl and then Biden. And we will go to a second round. Is that OK with you, Senator Specter? SPECTER: Yes, sir. LEAHY: We stand in recess. PROTESTER: Fire Gonzales now! (RECESS) LEAHY: I want to welcome everybody back. As you understand, we had votes in the Senate which delayed us going back. But it was the Court Security Act, which is a significant piece of legislation, which I know the attorney general and everybody on this committee has supported, a significant piece of legislation which we passed. And I thank all the senators who supported it. As I mentioned this morning, Senator Grassley had to be at a funeral and would have been recognized much earlier this morning. But we'll begin, Senator Grassley, with you. SEN. CHARLES E. GRASSLEY, R-IOWA: Thank you very much. General Gonzales, I've reserved judgment on what has happened with the firing of U.S. attorneys. I have to admit that it's been difficult. The inconsistent information has, unfortunately, made what may be a perfectly explainable situation into something that many have already concluded was misconduct. Your testimony today -- and I left about the time you were starting your opening statement, so I've missed everything since then -- but your testimony today, it seems to me, is extremely important, at least for me, to sort through all the facts and draw my own conclusions. I hope your testimony sets the story straight and clears the waters. No one seriously takes issue with the statement that U.S. attorneys serve at the pleasure of the president. The president has the authority to hire or fire U.S. attorneys. If an individual wasn't pursuing his priorities aggressively enough or if he wanted to -- or if the president wanted to give another candidate an opportunity, those things aren't against the law. However, it is improper for a president to fire a U.S. attorney for retaliatory reasons or to impede or obstruct a particular prosecution for unjust political or partisan gain. We don't want to see the independence, integrity of our attorneys compromised to a point where they aren't serving their district in the interest of justice. I don't know if the U.S. attorneys were fired because they were pursuing or not pursuing investigations or prosecutions based on political motivation, but once the administration started to make representations to Congress and the American people about how or why the firings came about, those representations had to be accurate and complete. Yet documents produced by your department are inconsistent with public statements and congressional testimony of other officials, and we just don't have a straight story on what transpired and whether the motivations for what happened were pure. GRASSLEY: You're well aware that I'm very serious about conducting congressional oversight. Oversight is a core responsibility of my job as a member of the Senate. I'm an equal opportunity oversight person when it comes to that. Over the years, I've looked into both Republican and Democrat administrations with the same vigor. So to get complete and truthful information is important for me. But I feel that on many occasions, this administration's made a concerted effort to thwart my oversight efforts. Just last week, the Justice Department tried to block a convicted felon from testifying before the Finance Committee. I was glad to say that the federal courts disagreed with you and in the end we got our witness. I know that the Justice Department has produced documents to the Judiciary Committee in response to our request for information on U.S. attorney firing. But your representations to Congress need to be accurate and complete or else our oversight activities won't be able to get to the bottom of anything. We shouldn't be getting conflicting statements from the attorney general and/or his staff. We shouldn't be getting conflicting statements at all. The story needs to be consistent, complete, and, of course, it must be the truth. We and the American people expect nothing less from our top law enforcement officials. So, General Gonzales, I hope that you'll be able to be complete and forthcoming and candid with me as I ask questions. I'm looking, for my first question, to see what the environment was and the situation all this took place. I'd like to start by asking you for an explanation as to why there are so many inconsistencies. There's something about the environment you work in that would produce these inconsistencies. How does that happen? GONZALES: I think as an initial -- well, first of all, I regret the inconsistent statements. And as I said in my opening statement, the misstatements are my mistakes and I accept responsibility for it. I think as an initial matter when it came out March 13th, I gave the press conference and I made some statements that were, quite frankly, over-broad. GONZALES: I should have been more precise in my statements. One of the reasons is because -- or the primary reason is because I'd not gone back and looked at those documents. I hadn't gone back and looked at my calendar, for example, about the November 27th meeting. And so, in hindsight, maybe I got after it too quickly, or my -- certainly, my statements were too broad. I felt a tremendous need to come out quickly and defend the department about accusations... PROTESTER: Stop lying! GONZALES: ... about improper conduct. And that's why I made the statements on March 13th. And in hindsight, that was a mistake. Because obviously I had not -- we had not gathered up all the documents which we've now produced to the Congress. But I accept full responsibility for not being more careful. GRASSLEY: So you aren't running a department where there is enough protocol so that everybody can be on the same page? GONZALES: I wouldn't say that, Senator. Again, this was a situation where there was a lot of information -- we're talking about a two-year process -- conversations and meetings that happened over a two-year process. And I did not do my job in making sure that I had all the information before I made my first public statements. And those first public statements -- I should have been more careful about those statements. GRASSLEY: OK. In prior statements, you indicated that you really hadn't been involved in any discussions or deliberations to remove the U.S. attorneys. But e-mails indicated that you had discussions with Mr. Sampson about this in late 2004 or early 2005, and that you attended a November 2006 meeting just prior to the firings. Mr. Sampson testified before this committee that your statements weren't fully accurate. And your testimony today backtracks on what you said earlier. Why is your story changing? Can you tell us when you first got involved and the extent of your participation in the process to evaluate and replace U.S. attorneys? And additionally, who came up with a plan to evaluate U.S. attorneys? GONZALES: Yes, sir. Well, the reason why my statements initially were incorrect was because I had not gone back and looked at the record. GONZALES: Since then, I've tried to clarify it. I think Mr. Sampson, even in his testimony, said that I had clarified my statements. The meeting -- the e-mail that you're referring to, a discussion that happened in either, I think January '05 -- as I recall, Senator, would relate to a discussion that would have happened in Christmas week -- between Christmas and New Year's and just weeks before my confirmation. And so I don't have a recollection of that discussion, quite frankly. But what we have tried to do since this time, since early March, is gather up as much information as we can and provide to the Congress documents and make people available so that we can get to the bottom of what happened here. And I'm here to provide what I know, what I recall as to the truth in order to help the Congress help to complete the record. But there are clearly some things that I don't know about what happened. And it's frustrating to me, as head of the department, to not know that still today. But I haven't talked to witnesses because of the fact that I haven't wanted to interfere with this investigation and department investigations. GRASSLEY: Who did you discuss the review with at the White House? Did you question any of the recommendations? Were you comfortable with the process and methodology for the final recommendations? And what was your personal input in that process? GONZALES: Senator, as to whether or not I had a specific conversation with individuals about the review process is not something that I can recall having, that kind of conversation. I had understood that there was a process in place where Mr. Sampson would consult with the senior leadership in the department, people that knew the most information about U.S. attorneys, and then he would bring back to me a consensus recommendation of the senior leadership of where there were districts in terms of issues and concerns about the performance of United States attorneys. Still today, I think that was an appropriate thing for a manager to do, is to try to identify where there were areas of improvement. Clearly, there were mistakes made in the implementation of this plan and in the review of this plan, and I accept responsibility for those mistakes. GRASSLEY: The red light's on, but there was a question just prior that you didn't answer. GRASSLEY: Who came up with the plan to evaluate U.S. attorneys? GONZALES: Senator, I think that was my plan. I believed it was appropriate to look to see whether or not the United States attorneys were doing a good job. Were they doing their job? I felt that was a good management decision, to simply look to see whether or not the United States attorneys were doing their jobs. I think the American people want to know that public servants are serving them. LEAHY: Senator Cardin, go ahead. SEN. BENJAMIN L. CARDIN, D-MD.: Thank you, Mr. Chairman. Mr. Gonzales, I've listened to the entire hearing here today, listened to your response to my colleagues' -- answering my colleagues' questions, and I find some things troubling. But I think what concerns me the most is after reviewing all the facts involved in dismissal of the U.S. attorneys, having a chance now to really go into detail and understand all the problems that have developed, you stand by the decision to remove these U.S. attorneys. You've acknowledged, and rightly so, that dismissing U.S. attorneys would be wrong if it interferes with or influence a particular prosecution for partisan political gains. Your former chief of staff, Mr. Sampson, stated basically the same thing when he said it would be wrong if it was an effort to interfere with or influence a prosecution of a particular case for political or partisan advantage. Yet Mr. Sampson acknowledged that a factor that was used in the consideration would be losing the trust and confidence of important local constituencies in law enforcement or government. Mr. Sampson confirmed a question that I asked him, that local political concerns from partisans may have been influential in the firing. You've said a couple times that you had confidence in the process that had been set up. How did you know that wrong political considerations weren't being used in the advice that was being given to you on the firing of these U.S. attorneys? GONZALES: Senator, I think that's a fair question. I certainly know the reasons on which I made my decision. And I, quite frankly, relied upon people that I trusted to make a recommendation to me. I think I'm justified in relying upon the chief of staff to bring forward to me a consensus recommendation of the senior leadership of the department. I'm not aware of anything in the documentation or anything with respect to testimony that would support the allegation that it was anything that was improper that happened here. But, again, as I've said before, just to reassure myself, I did ask the Office of Professional Responsibility, and they're working with the Office of the Inspector General to ensure that nothing improper happened here. CARDIN: I know, but I asked Mr. Sampson at a hearing in this committee, "What safeguards did you have in the process to make sure that that wasn't being done?" that is, improper political considerations. Mr. Sampson replied, "I don't feel like I had any safeguards in the process." GONZALES: Senator, I would never ask someone to leave a position as United States attorney for an improper reason. The truth of the matter is, of course, public corruption cases, for example, as a general matter, are not tried by the United States attorney. They're tried by the assistant United States attorney and assisted by career people. CARDIN: But the person who is giving you the advice, who puts it all together, says there's no safeguards in the process to filter out improper local political pressure that may have been exerted to influence who's on that list. And yet you've said in your testimony, "I also have no basis that anyone involved in the process sought the removal of U.S. attorneys for improper reasons." How do you know that? GONZALES: Senator, based on what I know -- and again -- and it wasn't just the chief of staff. I was relying upon what I understood to be the consensus recommendation of the department, in particular the deputy attorney general. This was -- U.S. attorneys report to the deputy attorney general. He is their former colleague. I don't believe that he would make a recommendation based upon improper reasons that a former colleague, a United States attorney, should be removed. CARDIN: Now you know that of the seven U.S. attorneys who were removed on the same day, five had controversial political investigations in their jurisdiction; including in New Mexico, where there's a probe of state Democrats and the Republicans were unhappy; that in Nevada, there was a probe of a Republican governor; in Arizona, there were probes of two Republican congressmen; in Arkansas, there was a probe of a Republican governor, in Missouri; South California, Representative Cunningham's investigation which was being expanded; in Washington, a decline to intervene in a disputed gubernatorial election that angered local Republicans. You now know all that. This was a unique process that was being used. Hasn't been used before to remove this many attorneys for this type of a reason. Don't you see that this might have been interpreted as trying to send a message to U.S. attorneys around the country to stay away from sensitive political corruption cases? GONZALES: Senator, I think that's a fair question. And I spoke with the United States attorney community, I think the week of March 12th. And I told them what I expected, and that is that no one should speed up or slow down a prosecution or investigation in any way; is that we follow the evidence, we make decisions on cases based on the evidence and not based upon the target as a Republican or a Democrat. GONZALES: And if you look at the record of the department, Senator... (CROSSTALK) CARDIN: ... my question. My question is the public perception. GONZALES: Yes, of course... CARDIN: Mr. Sampson acknowledged a lack of foresight that people would perceive it as being done to influence a case for improper reasons. Your chief of staff -- your former chief of staff has already acknowledge that. Looking at all the information we now know, you still stand by the decision that this was the right thing to do, the dismissal of these attorneys? GONZALES: I do, Senator. I do. One thing we have to understand -- and I've gone back and thought about this a lot, believe me. And looking at the documents, and I had a conversation with the deputy attorney general about this, whether or not this was still the right decision. Did he stand behind his recommendation? And based on what I know today, I do stand behind the decision. Because I have no information to tell me that, in fact, the decisions were both... CARDIN: You disagree with Mr. Sampson on the way that he had analyzed what is out there? Or do you think perception is OK? GONZALES: No, I don't. I think perception is very, very important. CARDIN: Do you disagree with the perception that's out there? GONZALES: I don't disagree with the perception. I think perception... CARDIN: But you would still do the same thing again. GONZALES: Senator, but I've also admitted mistakes in the way we did this and that it should have been done a different way. It should have -- the process should have been more rigorous and more structured. CARDIN: Let me just challenge you on the process for one moment. I delegate to my senior staff for advice on a lot of issues. But they try to understand where I'm coming from on these issues. You had some very sensitive political discussions on at least three of these U.S. attorneys. Your senior staff knew about those discussions. Did it ever appear to you that maybe they understood that, when they made the recommendation to you, that they were trying to adhere to what they thought you wanted? GONZALES: Senator -- well, Senator, I think I've been very, very clear about my commitment not to improperly interfere with cases. CARDIN: You understood that political contacts had already been made with you, including the president of the United States? GONZALES: Well, Senator, I don't know about -- I can't speak to as to what people understood about what the president of the United States may have said to me. GONZALES: But listen, Senator, I have been very, very committed to ensuring that the department makes its decisions not based on politics but on the evidence. If you look at the record of the department in prosecuting public corruption cases in particular, it's been extremely strong all across the board. CARDIN: That's my concern, the message you sent out that it was too strong in some of the jurisdictions. GONZALES: I would be concerned... CARDIN: That's why you dismissed the -- that's the impression that's why you dismissed the U.S. attorneys. GONZALES: I would be concerned about that perception. And that's why I spoke to the U.S. attorney community the week of March 12th, to reassure them that that's not what I expected of them. CARDIN: I would tell you that public confidence is also part of supporting the U.S. Attorneys Office. And that has been undermined, by your own acknowledgement, and by Mr. Sampson's acknowledgement. GONZALES: No question, this has been an... CARDIN: But you would still do the same... GONZALES: ... unfortunate episode. CARDIN: But you would still do the same thing again. GONZALES: Senator... CARDIN: I don't understand that. (CROSSTALK) GONZALES: Senator, maybe I should rephrase it this way. I would use a different process, a different process... CARDIN: Same conclusion? GONZALES: Senator, it depends on what the recommendation would be coming to me. But hopefully -- I believe that we had a good process in place. I now know that that's not true, that it was flawed, and that we should have used a different kind of process. But I have no reason to believe that these were improper motives, in terms of the basis of the recommendations. CARDIN: Thank you, Mr. Chairman. LEAHY: Thank you very much, Senator Cardin. And, Senator Coburn? SEN. TOM COBURN, R-OKLA.: Thank you, Mr. Chairman. General Gonzales, in one of the statements earlier today, you stated, in terms of the insertion of the ability of the administration to replace U.S. attorneys -- and if this quote isn't right, please pardon me; I think I wrote it down -- that you didn't think that someone should decide who works for you at the U.S. Attorneys Office. GONZALES: I said that I didn't -- I was troubled -- well, I can't recall exactly what I said, but the reason why I supported a change in the law, 28 USC 546, was because of the district judges making decisions about who should serve on my staff as United States attorneys. We had a recent incident in South Dakota, with respect to trying to put someone in as the acting United States attorney. The judge there wanted to put someone in who we had concerns about. And so we were -- I supported the change in the law for that reason, not to circumvent... COBURN: I understand. All right. You testified earlier this morning about Bud Cummins. And you made a differential from him and the rest of the U.S. attorneys, and the difference in the date at which he was actually either notified or came about through that. COBURN: But it was said that he had poor performance, is that correct? GONZALES: Senator, based on my review of the documents... COBURN: I'm asking you what was said formally by the U.S. Justice Department about Bud Cummins' performance. GONZALES: Senator, I don't know what all had been said about the performance of Bud Cummins. But clearly -- clearly, from what I can tell looking back at the documents, is that Mr. Cummins was in a different situation for two reasons. One is because he was asked to resign on June 14... COBURN: I don't want to talk about the different situation. I want to talk about was a statement said that he was being replaced because of poor performance? GONZALES: Senator, I don't recall specifically that statement. But if, in fact, that statement was made, then I apologize for that statement. Because, in fact, Mr. Cummins was asked to resign on June 14th. And one of the resigns he was asked to resign is because there was a desire to place another well-qualified person. COBURN: Absolutely. And I have no qualms with that, which really leads me to the other area. You know, what Senator Cardin just raised: the issue that it appears, or the perception that people were replaced for other than what seems to be the facts, as you've testified and certainly looks to be the facts under a legitimate process for what you evaluate as concerns in management and leadership. But I think the damage to the Justice Department, the attorney general and you personally has been significant. Several people's reputations have been harmed, including Bud Cummins'. Communication has been terrible. Its management has been terrible. You were asked by Senator Cardin if you would make this decision again and you said yes, because you thought it was the right decision. The question I have for you is, how would you have handled it differently in terms of implementing the decision? GONZALES: Sir, when you say implementing -- after the decision's made, how to implement after the decision is made? COBURN: Yes. GONZALES: Well, one of the things I would have done, of course, is been more respectful in communicating the decision. I think that a face-to-face meeting, if at all possible, involving the deputy attorney general or myself, or certainly a phone call involving the deputy attorney general or myself, instead of the director of the Executive Office. GONZALES: I think also, if, in fact, the department was going to say something publicly about performance-related, I think we should have told these individuals the specific reasons. As a legal matter, they're not entitled to those reasons, but I think as a matter of fairness, as a matter of good management, I think it would have been appropriate to apprise them of the concerns that we had. I think it would have been better, of course, to make them aware of those concerns before the actual decision. It's one of the things that I identified as a problem in the department, and certainly one of the things that I regret. And what we're going to do is institutionalize a process where we have at least an annual meeting face to face with every United States attorney and either the deputy attorney general or myself so we could talk about issues that are of concern to us. COBURN: You said earlier this was an unfortunate episode. You also said that these attorneys were evaluated based on their leadership skills and management skills. And you answered a question from Senator Graham earlier about your position. In light of all this, why would we not use the same standards to judge your performance in handling this event that you applied to these same individuals? GONZALES: I think that's a fair question, Senator. And I think that I clearly made mistakes here -- clearly -- and I accept responsibility for those mistakes, Senator. I've tried to identify where those mistakes were made and institutionalize where we can make changes to make the department even stronger. I think the department under my leadership in the past two years, I think we've done some great things. GONZALES: I think the department has been managed in a good way. This has not been managed in a good way, and I accept responsibility for that. But I still continue to have great faith in the career people at the department. Cases still continue; investigations still continue. Obviously, I have a lot of work to do to restore confidence and trust. I am committed to doing that. COBURN: That's not what I asked you. I said: Why should you not be judged by the same standards at which you judged these dismissed U.S. attorneys? GONZALES: Senator, again, I've identified my mistakes. And you'll make your decisions based upon my testimony, based upon the review of the record in terms of what has happened, and based upon the testimony of others. And, Senator, what I can commit to you is that I've acknowledged mistakes. We all make mistakes. And I'm committed to addressing those mistakes and working with you to make our country even stronger. COBURN: Well, I believe there's consequences to a mistake. I was quoted in the paper as saying I think this has been handled in a very incompetent manner. And I believe most people -- I don't care which side of the aisle they are -- would agree with that. U.S. attorneys' reputation that were involved has been harmed. The confidence in U.S. attorneys throughout this country has been damaged. The reputation of the attorney general's office has been tarnished and brought into question. I disavow, aggressively, any implication that there was a political nature in this. I know that's the politics of the bloodsport that we're playing. I don't think it had anything to do with it. But to me, there has to be consequences to accepting responsibility. And I would just say, Mr. Attorney General, it's my considered opinion that the exact same standards should be applied to you in how this was handled. And it was handled incompetently. The communication was atrocious. It was inconsistent. It's generous to say that there were misstatements. That's a generous statement. And I believe you ought to suffer the consequences that these others have suffered. And I believe that the best way to put this behind us is your resignation. GONZALES: Senator, I don't know whether or not that puts everything behind us, quite frankly. I am committed -- I know the mistakes that were made here. And I am committed to fix those mistakes. And I'm committed to working with you and try to restore the faith and confidence that you need to have to work with me. COBURN: Well, Mr. Attorney General, you set the standard. You said leadership skills, management skills. They were sorely lacking in this instance. And the responsibility is to start with a clean slate, a new set of leadership skills, a new set of management skills, to heal this in the country, to restore the confidence in this country. I like you as a man. I like you as an individual. I believe you're totally dedicated to your job and this country. But I think mistakes have consequences, and I believe that should be the one that it should be. COBURN: I have no further questions. LEAHY: Thank you, Senator Coburn. Senator Whitehouse, you're next. And so people know what's happening, it will be Senator Whitehouse and Senator Kyl. We will then start with those who want a second round. I'll begin with myself and then Senator Specter. And we'll go based on who's here, in the order they're in. So Senator Whitehouse, and then Senator Kyl. [ PART III ] SEN. SHELDON WHITEHOUSE, D-R.I.: Thank you, Mr. Chairman. Here's what concerns me, Attorney General Gonzales. The administration of justice in our country is controlled within structures. Some of them are constitutional structures. Some of them are statutory structures. But some of them are structures that have developed over time, that amount to tradition and practice, but they're there for good and important reasons. And my concern, after reading your testimony and hearing your testimony today, is that you don't seem to be aware of the damage to those structures that this episode has caused. And I'd like to run a few by you, just to let you know where I'm coming from. The two areas where you ask us to agree with you, in your testimony: The first is that U.S. attorneys can be fired at will by the president. That's undeniably true, but I think its use as a rhetorical point in this discussion is highly misleading, deeply misleading. Because I think you and I both know that, for years, for decades, there has been a tradition of independence on the part of United States attorneys. Once they're appointed, unless there is misconduct, they're left to do their jobs. And that rule, that practice, has existed for good and meaningful reason. And it can't be overlooked by just blithely saying, well, the president has the power to remove these people. That misses the point. These people make tough decisions. They're out there on their own very different. Very often, the Department of Justice and the political environment that surrounds it is one that you want to protect them from. And the idea that, willy-nilly, senior staff people can come out and have the heads of U.S. attorneys -- I think it's highly damaging to that peace of structure. This was not customary practice. We can agree on that, can we not? GONZALES: Senator, I think that that's -- I do agree on that. And I do agree with you that structures and traditions are important. I agree with that as well. WHITEHOUSE: Well, the second piece of the structure here that I think is significant is that, although you, as attorney general, are in command of the administration of justice in the federal system, there's actually very little prosecution that takes place out of main Justice. The enormous majority of the prosecutive authority of the United States of America has been dispersed out into 93 judicial districts. and it's been dispersed to men and women who have certain characteristics. One is that they're from the local community, and when they're done, they go back and they live in that local community. WHITEHOUSE: And it's good for the administration of justice when they're accountable in that way for their decisions, given the power and often terror that prosecutive action can create in a family. The second is that they've got to get a senator to sign off on it. In fact, they've got to get a majority of the whole Senate to sign off on it, and the president of the United States. And when those things happen, it creates a corps, if you will -- c-o-r-p-s -- a corps of practicality, of common sense, of responsibility, of experience that I consider to be a huge value to the administration of justice in this country. And in every way in which this was handled, it is highly destructive of that independence, whether it's people from Justice going out and taking these positions, whether it's ducking Senate confirmation, whether it's not bringing people from the local community up to take those positions or whether it's the general level of disrespect that's been shown for the United States attorneys through this whole process. And I guess I'd like to ask you to comment. Do you think that that's a structural component of the administration of justice -- that dispersion of the authority out to 93 independent local U.S. attorneys -- that has value and that is important, that should be protected? GONZALES: I do think it has value. And I think that the independence of the United States attorneys is important. I think United States attorneys should feel independent to exercise their judgment in prosecuting cases based upon the evidence. However, I have to qualify that a bit, Senator, in that -- that with respect to policies and priorities, again, the president of the United States is elected based upon his policies and priorities. WHITEHOUSE: I'll spot you that, Attorney General. But my point is when you're making a decision like that, there's a counterbalance to it. When you go to Carol Lam and say, "You know what, you're not doing enough immigration prosecutions, therefore you're fired," there are all sorts of collateral consequences of that -- some of which are really quite damaging and evil, particularly when you're knocking off somebody who is known among her colleagues as being really the prime United States attorney in the country on public corruption prosecutions. It sends a really rough message. So in the balancing between the structural protections and the respect and all of that, and this question of policy, I would hazard to you that you can't let the policy question just run away with the issue. You first think it through thoughtfully, and I can't find a place in the whole tragic record of this situation, in which that careful thought was administered. GONZALES: No question about it. No question about it that we have to take into account how decisions may affect ongoing cases. There's no question about that. But we also -- I think it's important for the American people to understand that even when there's a chance at the top with the attorney general, or a change in the United States attorney, the cases continue. WHITEHOUSE: That's true. GONZALES: The cases continue to be investigated. WHITEHOUSE: As you and I know, the leadership from the U.S. attorney makes a big difference. That's why you thought these replacements were important in the first place. GONZALES: They do -- they do make a big difference... WHITEHOUSE: If I may make my second point, because I'm running out of time here. It's the second thing that you suggest, which is we should further agree on a definition of what an improper reason for the removal of a U.S. attorney would be. And over and over again you've used the word "improper" as sort of your target word as to where the boundary is, to where you should and shouldn't go. But your definition of improper is almost exactly the same as Kyle Sampson's. He came in here and testified, he said, without consulting with anybody, and said that the improper reasons include an effort, and I quote, "to interfere with or influence the investigation or prosecution of a particular case for political or partisan advantage." And your testimony is, "...to interfere with or influence a particular prosecution for partisan political gain." You've loaded up those words. You've used them repeatedly. And I think that the definition of where impropriety lies, clearly that would be improper. That would be grotesquely improper. But I think you've set the bar way low for yourself, if that's your standard of where impropriety is, because -- and I'd like to hear you comment on this -- I think any effort to add any partisan or political dimension into a U.S. attorney's conduct of his office, irrespective of whether it's intended to affect a particular case or not, is something that we need to react to firmly, strongly, resolutely, and without any tolerance for it. And yet you've set the bar so that it's not impropriety until it affects a particular case. Why did you do that? GONZALES: Senator, because the accusations that have been made primarily, certainly as an initial matter, was that there was something improper; we were trying to interfere with particular cases. And that's why certainly the focus in my mind was to focus on: OK, well, what is the legal standard? And I think it's important for us to understand, as an initial matter: What is the legal standard; what would be inappropriate or improper? WHITEHOUSE: But something a lot less than that would be improper, would it not? I mean, when Admiral Byng got hanged there was the famous comment: Every once in a while you got to hang an admiral just to encourage all the others. You know, if you hang a U.S. attorney every once in a while just to discourage all the others, even if your intention is not to affect a particular case, you have to agree that would be highly improper. GONZALES: Senator -- well, it may be improper as a matter of management. Some would have to wonder: Is that really an appropriate way to manage the department? But, again, Senator, you have to understand that... WHITEHOUSE: Well, otherwise it would be obstruction of justice, correct? GONZALES: ... that these individuals have served their four years, they're holding over. There's no expectation of a job here. There shouldn't be, because of the fact that they are presidential appointees. GONZALES: Now, clearly, as a management issue, there is value added to a person who has served as a United States attorney in terms of experience, expertise. And so, those things are very important. WHITEHOUSE: It's more than just a management issue. It's an issue about the structure through which justice is administered in this country. And when it's broken and when it's damaged and when the attorney general of the United States says the only place where impropriety exists is when political and partisan influence has risen to the point that it's intended to affect a particular case, but otherwise it's fine, I have a real problem. And I think everybody in America should have a real problem with that. My time has expired. LEAHY: Thank you very much. Senator Kyl? SEN. JON KYL, R-ARIZ.: Thank you, Mr. Chairman. I think I'm last and I think just about everything's been said, but not everybody's said it, although I would say that it's been said better by some than by others. And I think what Senator Whitehouse just did was to set out two very important points well. I'm not sure that the last point was adequately answered. In addition to being wrong if you affected a particular corruption case, would it not also be an improper firing if it was for the purpose of generally affecting or influencing political corruption cases? GONZALES: That would trouble me, Senator, because... KYL: Wouldn't it more than trouble you? GONZALES: Yes, I think that would be wrong. KYL: OK, thank you. GONZALES: I think U.S. -- well, go ahead. KYL: So I think you and Senator Whitehouse and I can all agree that the standard that you set forth was not the one and only situation that would be improper, but described a situation that was being attributed to the Department of Justice in this particular episode. GONZALES: We don't want -- we do not want to send the message that prosecutors should not follow the evidence and prosecute people. We want them to do that, absolutely. We don't want them to be discouraged. And I don't want them to be discouraged from coming forward and being candid with their views about issues or about cases. KYL: Let me ask you, as far as you know, since this has all occurred, has there been any difference in the way that any of the political corruption cases has been handled by the career prosecutors in any of the offices? GONZALES: Senator, not to my knowledge. But I think the American people need to understand that we have limited information in main Justice about cases being prosecuted around the country. We really have limited information. For good reason, I think. KYL: Yes, indeed. And I would close this part of my -- because I have two other questions I want to ask. There are thousands of pages of documents and hundreds of hours of testimony and interviews. And I found it instructive that Senator Schumer would suggest this morning what I gather is a new conspiracy theory standard, which is, if the evidence doesn't show any violation of what all would agree would be proper practices, in this case, an attempt to influence political corruption cases, that, therefore, the burden should shift to the Department of Justice to prove that it didn't happen, in effect to prove a negative. That would be wrong; it would be unprecedented; and in my view, it would be dangerous. Since this is an oversight hearing, I would like to ask about a couple of other matters. I want to thank you, first of all, for visiting recently with me about funding for crime victims' rights. As you know, I remain very concerned about that. And I just want to follow up on our conversation and see if we can get some additional information by having a meeting next week, not involving you, but involving both John Gillis, who's the director of the Office for Victims of Crime, and Will Moschella. Would you assist me in setting up such a meeting next week? GONZALES: Yes, sir. KYL: Thank you very much. And on the other matter, relating to Internet gambling. I want to applaud your office for cracking down on Internet gambling through a number of prosecutions that have recently occurred. As you know, last October 13th the president signed into law the Unlawful Internet Gambling Enforcement Act. And one of its purpose is to target these offshore gambling operations that are not readily subject to U.S. prosecution. The law creates tools to enforce federal and state gambling laws, particularly with these Web site operators offshore. The purpose is to cut off the financial lifeblood of Internet gambling businesses by requiring the financial institutions and payment systems to block illegal Internet gambling transactions. I know you're aware of this background, but let me just, one more quick paragraph here. Most illegal gambling entities operate offshore, beyond the personal jurisdiction of U.S. law enforcement, so the financial regulations authorized under this new law are critical to effective implementation of the law. KYL: And under Section 5364 of Title 31 U.S.C., the regulations must require financial institutions to implement policies and procedures to identify and block funds related to Internet -- illegal Internet gambling. The regulatory authority is broad to allow Treasury to adapt the procedures to the expediencies of different types of payment system. Under the law, regulations are to be written by the Treasury Department and the Federal Reserve board in consultation with the attorney general. At the DOJ oversight hearing on January 18, I discussed with you the need for your office to work with Treasury so these regulations can be quickly issued. And you testified that you'd already initiated discussions with Treasury. The process is moving, hopefully, and can be completed in an expeditious manner. On March 15 I sent to you and Secretary Paulson a letter signed by Judiciary Committee members Specter, Cornyn, Sessions and Brownback noting time was of the essence and urging the regulations provide financial institutions with a periodically updated list of gambling operations to whom transactions should be blocked. And earlier this month, I reiterated that same concern for that list with you. Just one quick prelude to the trigger that I'll pull here on my three or four questions: Both people from the Department of Justice and the Department of State have noted that a major concern that the department has about online gambling is that Internet gambling businesses provide criminals with an easy and excellent vehicle for money laundering. That was testimony of your deputy assistant attorney general, the criminal division, Mr. Malcolm. And from the State Department, just quoting two lines, "Internet gambling is particularly well suited for the laying and integration stages of money laundering. Internet gambling operations are in essence the functional equivalent of wholly unregulated offshore banks, with a better account serving as bank accounts for account holders who are, in the virtual world, virtually anonymous. For these reasons, Internet gambling operations are vulnerable to be used not only for money laundering, but also for criminal activities ranging from terrorist financing to tax evasion." Now, four quick questions. First, would you agree with me that regulations need to be strong in this area? GONZALES: Absolutely. KYL: You're familiar with the March 15 letter I mentioned. The letter notes that the House Financial Services Committee report expressly states the law contemplates a mechanism whereby banks and other financial service providers will be provided with the identity of specific Internet gambling bank accounts to which payments are to be prohibited. Does that seem reasonable to you? GONZALES: Senator, I think -- there's some operational issues for us, quite frankly, with respect to whether or not we can develop such a -- what we're saying is, these guys are breaking the law. GONZALES: And quite frankly, there's no amount -- what we do is we prosecute that. And so I know my staff has been consulting with your staff, trying to work through this. Because I'm as anxious as you are to try to get these regulations working so we can do a better job of enforcing the law against these... KYL: But providing that information, specifically, to the financial institutions would offer them certainty as to their legal obligations, and would assist them in ensuring that the law would be effectively enforced, would it not? GONZALES: It would certainly provide more certainty. And I'm not saying it can't be done. We're trying to work through this, Senator. And I understand -- I certainly understand your interest in this. And my staff is working as hard as we can to see if we can find a way to do this. KYL: Well, what I'm interested in, though, since Treasury doesn't have access to the same information DOJ does, and the list of these improper sites needs to come from DOJ rather than Treasury, and the regulations are to be provided by Treasury, in consultation with the Department of Justice, whether you will agree with us that the Department of Justice should do everything it can to gather this information together and provide it to the Department of Justice -- excuse me -- Department of Treasury, not just once, but on some appropriate ongoing basis. GONZALES: Sir, what I can commit to you is that we're going to do everything we can to make sure these regulations are strong and we get them implemented as quickly as we can. That's what I can commit to you, sir. I know this is an important issue to you. It's an important issue to me. But we need to do it the right way. And I think we can -- I'm not saying we can't do this list. We're still looking at this very, very hard. KYL: But if I can just conclude, Mr. Chairman, the Treasury is just about ready to issue the regulations. They need input from you. GONZALES: They sure do. Yes, sir, I'm aware of that. KYL: That needs to occur quickly. GONZALES: Yes, sir. KYL: Thank you very much, Mr. Chairman. LEAHY: Thank you, Senator Kyl. Mr. Attorney General, late last week, the White House spokesperson claimed an unknown number of e-mails, including those of Karl Rove, from both White House accounts and apparently those sent or received using political Republican National Committee accounts, were lost. And Mr. Rove's attorney, in the investigation that led to Scooter Libby's conviction for lying suggested that U.S. Attorney Patrick Fitzgerald, a part of the Department of Justice, obtained all of Mr. Rove's e-mails as part of the investigation into the leak of the identity of a covert CIA operative. If that is the case, those e-mails would be in your possession or in the possession of the Department of Justice. What do we have to do to obtain Mr. Rove's e-mails relevant to the development and implementation of the plan to replace U.S. attorneys and the committee's investigation into that matter? GONZALES: Senator, I was not aware that -- I didn't see that article. I wasn't aware that Mr. Fitzgerald had that information or if, in fact, the department still has that information. So I'd have to go back and look to see what, in fact, the facts are. LEAHY: If he does have the information, and it involves e-mails relevant to the development and implementation of the U.S. attorneys plan... GONZALES: Senator, I believe that those -- well, I don't have the answer to that, Senator. I know that they're of interest to the committee, and obviously the department wants to be cooperative with the committee. There may be White House equities here that need to be considered, and so... LEAHY: We're not talking about e-mails from the president. In fact, the president doesn't use e-mail, as I understand. Am I right? GONZALES: As far as I know that's correct, sir. But the fact that they may have been communications over an RNC account doesn't mean that they're not presidential records. If in fact relates to government business, and they're transmitted over an RNC account, they could nonetheless be presidential records. And so there would be a governmental interest -- a White House interest in those records. LEAHY: These are records supposedly that were lost, though. GONZALES: Senator, I don't know... LEAHY: Are they there or aren't they there? GONZALES: What I'm saying is, is if in fact they exist... LEAHY: Well, what was -- let me ask you this. The White House Counsel's office is responsible for the establishment and oversight of these kind of internal rules, conduct. When you served as the White House counsel, you were there four years. What was the policy and practice with regard to Karl Rove and other political operatives at the White House using Republican National Committee e-mail accounts to conduct official government business? GONZALES: Well, of course, Senator... LEAHY: That'd be a policy set by your office. What was the policy? GONZALES: Senator, there were a few people in the White House, as I recall, who had -- who use non-governmental communications equipment. That was done actually, quite frankly, for legitimate reasons in terms of not wanting to violate the Hatch Act and using government facilities for political activity that is permitted under the Hatch Act for certain individuals in the White House. LEAHY: But how many -- but what was the policy? Could they conduct official business on those... GONZALES: I think the intent of the policy as I recall, Senator, is that those e-mails were to be used primarily for non-governmental purposes, but in fact -- but if there was governmental communications communicated over these non- governmental communications equipment, that there ought to be some kind of effort to preserve that communication if in fact it was a presidential record. LEAHY: There ought to be, or was your policy that there had to be? GONZALES: I think the policy -- I have to go back and look at -- the policy was that it should be preserved. Printed out, or somehow forwarded to a government computer. LEAHY: Are we talking about two or three computers, or a number of computers? GONZALES: Senator, I don't recall the number. LEAHY: If the White House spokesperson said as many as 50 past, current White House officials had these separate RNC or other outside e-mail accounts to conduct official business, would that sound accurate? GONZALES: Sir, I'd have no way of knowing. LEAHY: Well, as White House counsel, did you conduct any audit or oversight of the use of non-governmental e-mails by White House personnel? GONZALES: Senator, I don't recall there being an audit. We provided guidance, but I don't recall such an audit. LEAHY: Is anyone investigating this issue now? GONZALES: At the Department of Justice or at the White House? LEAHY: Are you aware of anyone investigating this issue now? GONZALES: Senator, from what I understand in the papers, is that I think the Counsel's Office is looking to see what happened here. I don't know if that's what you mean by an investigation. I think there is an effort, but I haven't spoken to the Counsel's Office about this issue as to whether or not they're doing an investigation to see what happened. LEAHY: And you're not doing any investigation from the Department of Justice? GONZALES: Senator, I'm not aware that there is an investigation that's ongoing with respect to this issue. LEAHY: In all likelihood, something like that would be brought to your attention, would it not? GONZALES: Well, Senator, I'm aware of it so -- you mean an investigation? Senator, I don't know if such an issue would be brought to me. I expect the career folks to simply do their job and... LEAHY: Well, you've been attorney general since 2005. Have you done anything to ensure that political operatives, Mr. Rove and others or his deputies, not use the Republican National Committee e-mail accounts for official government business? GONZALES: Senator, again, that would not be necessarily illegal or criminal. The obligation... LEAHY: Have you taken any position, official position on it? GONZALES: As attorney general I don't believe -- I don't recall taking such a position, sir. LEAHY: What was Monica Goodling's role in the process of evaluating U.S. attorneys and choosing U.S. attorneys for termination? GONZALES: Senator, I don't know of everything that she did in connection with this issue. Her job at the department was senior counselor. She worked -- she was also the White House liaison. She worked on budget issues and special projects. She, in essence, supported Mr. Sampson. Since Mr. Sampson was coordinating this effort, my assumption is, is that she coordinated Mr. Sampson's efforts in connection with this review process. LEAHY: I noted a reporter for Newsweek, Michael Isikoff, highly respected, wrote about your testimony, notable for what it doesn't say. He observed that you never say if you talked to Harriet Miers. LEAHY: An even more conspicuous omission is your failure to mention talks about the subject of U.S. attorneys with Karl Rove, the president's chief political adviser. I'd asked you to include in your written statement a full and complete account of the development of the plan to replace U.S. attorneys. Have you told us all you can recall about your role and the White House role in the development of the plan to replace U.S. attorneys? GONZALES: In terms of what I know, Senator, and not in terms of what I've since learned that's already in the documents, I suspect the committee -- members of this committee have a lot more information about what happened here. I'm here to supplement the record by telling you what I know. LEAHY: You've told us all you can about your role. GONZALES: Senator, I think the written statement reflects what I recall with respect to the development of the plan. There are some conversations that are not included, that I've tried to try to inform the committee about in response to certain questions today. LEAHY: Did the president ever tell you specifically to fire a U.S. attorney? GONZALES: I don't recall the president ever telling me specifically to fire a United States attorney, sir. LEAHY: See, part of my problem is we've had a number of statements about the dismissal of these eight U.S. attorneys. I just want to know which one is the accurate one. Your January 18th testimony? Your March 7 op-ed in USA Today? Or your March 13 press conference? Or your March 26th interview with Pete Williams on MSNBC? Or your written testimony that was submitted in advance today? Or your live testimony here today? Which one is -- which one is the one we should grab hold of and say, "This is" -- "This is the accurate statement. This is the one we can go to the bank with"? GONZALES: Senator, again, I've not done anything intentional. And I have made misstatements. And those misstatements, those are my mistakes. And I accept responsibility for it. If there are specific issues that you have questions about, I'm happy to try to answer your question. PROTESTOR: Liar! Liar! Impeach! LEAHY: It would be -- well, my time is up. I do have a lot of specific questions, simply because those statements I mentioned, each one on this subject, each one varies. Senator Specter? SPECTER: Thank you, Mr. Chairman. Understandably, most of the questions today have been on the issue of the replacement of the United States attorneys. But there are many other issues of great concern coming within the purview of the Department of Justice on this oversight hearing. And I'd like to turn to the massacre at Virginia Tech on Monday. The Congress has acted on campus safety. In 1990, legislation was enacted, known as the Jeanie Cleary Act, after a young woman was brutally raped and murdered in Lehigh University in Pennsylvania. And that law requires campus authorities to notify in a timely way the campus community on crimes considered to be a threat to other students or employees. Well, we don't have a crime which was reported as to Cho Seung- Hui. But there were a number of indicators which I want to explore with you to see what might be done by way of amendments to the act or other legislation. SPECTER: In late 2005, two female students complained, separately, that they were talked by Cho -- contacted them inappropriately, personally, online and by phone. Campus police obtained a court order requiring Cho to be evaluated in a psychiatric facility, and he was released after an overnight study, finding him to be potentially suicidal. Cho's work in an English class alarmed his professor. He said that Cho wrote exceedingly dark essays about death and murder. He was eventually removed from the class for his antisocial behavior. And another professor reportedly tutored Cho, and had a signal with somebody in the room to mention the name of a specific individual if there was some threat. Well, we obviously -- the law obviously can't reach every potential threat or identify them. But what I would ask you to do, Attorney General Gonzales, is to undertake a more detailed study as to what we know about Cho Seung-Hui, and to see if there is any ambit that law enforcement could act on. One thought comes to me, when two women reported that he stalked them, they could have been compelled to come forward. The state, the prosecutor has the authority to subpoena witnesses. It is a crime against the commonwealth, against the state, not just the individuals -- so that that might have been undertaken to give more of a background for some action. But to the extent that we can find some way to deal with these signals, it would be very useful. The public ought to -- we ought to be doing what we can to reassure the public that we will look at the facets of what has happened here. SPECTER: The president had a town hall meeting after the Amish incident on October 10 of last year in Lancaster, Pennsylvania, where there was talk about a clearinghouse that could be set up by the National Association of Sheriffs. You were at the meeting, along with the secretary of education. Has anything been done on that, looking to identify this kind of aberrant, unusual behavior which might mark or give some insights into people who would be at risk? We talk often about at-risk youth, trying to give them mentors. Has anything been done on that report on the sheriffs' clearinghouse? GONZALES: Senator, with respect to the specific conference, one of the things that we focus primarily on at the Department of Justice was to ensure the development of strong relationships with the state and local police, and the school... SPECTER: Would you deal with my question before you go to some other subject? GONZALES: The -- I'm not aware that there's been any effort, Senator. That doesn't mean that there hasn't been with respect to this issue of... SPECTER: Well, would you check that out and get back to us? GONZALES: Yes, sir. SPECTER: There are a couple of other subjects I want to take up with you. The national securities letters have been misused flagrantly by the FBI. We had a very rugged session with FBI Director Mueller where we found that, in structuring the Patriot Act, we gave law enforcement additional powers. But we were very careful to put restraints on that. But those national security letters were misused. They were used under limited procedures where exigent -- that is, emergency -- circumstances misused. You're supposed to have documents to follow up. What have you done, Mr. Attorney General, to act -- to see to it that those problems are corrected? GONZALES: Senator, I've spoken with the director several times about this. I was very upset about this. I'm going to have to... SPECTER: You've spoken to him, upset about it. But what did you do, specifically? GONZALES: I asked the national security division and our privacy officer to work with the FBI in trying to find out what happened here. SPECTER: Wait a minute, wait a minute. We know what happened. They misused the letters. GONZALES: They did, sir. We're trying to... SPECTER: The question is: What corrective action have you taken? GONZALES: Senator, we're involved in the oversight and auditing of field offices. And moving forward, we're going to be doing field office sites, 15 a year, so that people -- so we have a better idea of what is ongoing. I think one of the things... SPECTER: Attorney General Gonzales, I want to take up one more subject. And I've got very limited time. What I'd like you to do on that subject is tell us what you as attorney general have done. You have responsibility over the FBI. And we know what Director Mueller has done. And this committee would be interested in knowing specifically what you have done in terms of your oversight to see to it that the FBI complies with the law. GONZALES: I'd be happy to, Senator. SPECTER: Let me take one other subject up very briefly. You wrote to Senator Leahy and me on January 17th of this year concerning the Foreign Intelligence Surveillance Court and the terrorist surveillance program, writing to us that, quote, "Authorizing the government to target for collection of international communications in or out of the United States has now been given to the FISA Court, which would have to be proceeded, where there's probably cause..." -- that's the regular proceeding -- "...so that the president has discontinued the terrorist surveillance program." Is that correct, that program has been discontinued... GONZALES: That is correct. SPECTER: ... in deference to sending all these cases before the court? GONZALES: That is correct, sir. SPECTER: OK. We don't have time to go into this in any detail, and it may be something that you can't talk about in an open session, but I would like to know the specifics and details on what is done to provide probable cause to the FISA Court in light of the tremendous number of interceptions involved here, interceptions from the U.S. going out or supposedly in a smaller number. But I'd like the information on that. And more specifically, on the quality of the factors required to establish probable cause on the communications coming from outside the United States in. And the final question on that subject for the moment is, in the light of the change in the approach, what is the need for the legislation which you have submitted last Friday, April 13th? If you'd provide those responses in writing, we'd appreciate it. GONZALES: Yes, sir. SPECTER: Thank you, Mr. Chairman. LEAHY: Thank you, Senator Specter. Senator Feinstein? FEINSTEIN: Thank you very much, Mr. Chairman. I want to take you back once again, Mr. Attorney General. I may be very slow. But I don't understand how this list was compiled. The list was essentially 10 percent of the entire attorney general staff. Kyle Sampson, your former chief of staff -- I'm going to talk about the senior so-called leadership of the department -- and the person you said you delegated this task to testified that he didn't put people on the list. He said, quote, "It wasn't like that. It wasn't that I wanted names on the list. I was the aggregator." That's page 184 of his transcript. Mike Battle, director of the Executive Office of the United States Attorneys, said, "I had no input. Nobody asked me for my input." That's the interview, page 82. Bill Mercer, acting associate attorney general and number three at DOJ, said, "I didn't understand there was a list. I didn't keep a list. It was just that any time I had a particular concern, I made that known to different people." And you testified this morning that you didn't know the reasons U.S. attorneys were put on the list until after you decided to fire them. I'm very interested -- and I'd like to send down to you the plan, three pages, that was distributed at the meeting on November 27, and ask you to take a look at it. GONZALES: Thank you, Senator. Let me respond to a couple of things that you said. First of all, I haven't read the transcript for Mr. Battle. FEINSTEIN: Well, it's pretty accurate. And I gave you the pages. So your staff can check it out. GONZALES: Thank you. I don't know that I testified that I didn't know the reasons when I made the decision. I recall knowing reasons as to five, but I don't recall remembering the reason as to two. FEINSTEIN: OK. Let's go on. If you could look at this, and I think this is one of the -- this is a small thing. But apparently this three-page plan was distributed at that meeting. FEINSTEIN: Do you recall seeing it? GONZALES: Senator, I don't recall the meeting. I don't recall seeing this document. But I have no reason to doubt that this was the document, but... FEINSTEIN: OK. Well, let me give you one point of -- and this is just a minor point of irritation: senator calls. And the Republican senators gets calls. The Democratic senators, where U.S. attorneys are being fired, the political lead gets the call, whatever that is. I think, you know, it's senators that confirm. It's senators that should have the knowledge, not necessarily the political lead. And if you would go to step three, on page two, it's entitled, "Prepare to withstand political upheaval." And it goes on to say: U.S. attorneys desiring to save their jobs likely will make efforts to preserve themselves in office. And then: This is what people should say. And on the question of who decided, the talking point is, the administration made the determination to seek the resignations, not any specific person at the White House or the Department of Justice. And to this time, we do not know who actually selected the people to be put on the list. GONZALES: Senator... FEINSTEIN: I would like to know who selected the individuals that were on that list. GONZALES: Senator... FEINSTEIN: Somebody had to. A human being had to. GONZALES: Senator, I'm not going to characterize Mr. Sampson's testimony. Let me tell you what I understood, and what I expected, was that Mr. Sampson would speak with the senior leadership in the department, people that knew about the performance of United States attorneys, and that he would come to me with a recommendation, a consensus recommendation, including his views. That is what I understood. And that's what I understood was coming to me. Because Mr. Sampson was... FEINSTEIN: But Mr. Sampson testified he didn't; he was just the aggregate. GONZALES: No, and I'm not saying -- that -- if that's what he testified, I'm sure that's his perception of his role. What I'm testifying today is, what I viewed Mr. Sampson's role was, was to get information but to present to me a recommendation that also included his own. And the reason that was important, not as important as others, like the deputy attorney general, but Mr. Sampson had been involved, as (ph) presidential personnel, in filling senior leadership positions at the Department of Justice, the top legal positions at other agencies. And so he had experience in making personnel decisions. FEINSTEIN: All right. I don't want to -- I want to ask other questions. But perhaps you can understand that this has become a serious matter. And seven out of the eight were involved in public prosecutions, public corruption prosecutions. And yet nobody knows who selected them for this unusual thing, to this very moment. FEINSTEIN: Now, I'd like to go on with something else. From documents and interview, we know the following: The White House was involved in the removal of Bud Cummins. Karl Rove called you and asked about three districts: Milwaukee, Philadelphia and Albuquerque. GONZALES: Senator, I don't recall whether he called or if there was a visit. It may have been a call. FEINSTEIN: OK. You got a call from the president about New Mexico in the fall of '06. GONZALES: Senator, I think that was a conversation. I don't think it was a phone call. FEINSTEIN: OK -- conversation, thank you. And Harriet Miers discussed whether to remove Deborah Yang from Los Angeles. Now, she resigned so she was not part of this. But given all these inquiries that we know about, how could you say just three weeks ago that the White House did not play a role in adding or taking off names? GONZALES: Well, Senator, the fact that there may have been a conversation with the president indicating a concern about election fraud in a particular issue, in my mind I never would have equated that with the process, this review process that was ongoing with respect to -- that Mr. Sampson was coordinating. FEINSTEIN: OK. But then -- now, let's continue. This is why this is so strange. When Mr. McNulty came and briefed us in the Judiciary room on the second floor, he mentioned the reasons were performance. And then we began to ask to see the EARS reports that Senator Kennedy referred to this morning. And I believe we've all taken a look at them. And we see stellar professional performance reports. We pick up USA Today and we see a ranking that they did placed seven of them in the top 10 U.S. attorneys in the United States. And I have a very hard time with your telling me to this day you don't know who suggested that each of these seven people on that December 7 list -- nobody knows how they got there. GONZALES: Well, Senator, first of all, I don't know -- the USA ranking, I don't know where that comes from and what it's based on. But, Senator, you -- the committee, I'm assuming, I'm presuming has interviewed the people involved in this process and can ask that question. I would like to know. I would like to ask that question. But out of respect for this investigation, I have not done so. The only thing I can do today is to give you the information that I know, the truth as I recall it. GONZALES: And that's what I'm trying to do here today, is to tell you that I received the recommendation, what I presumed was that it -- most importantly, what I cared about, that this reflect the recommendation of the deputy attorney general. That was the most important thing. FEINSTEIN: But if I were you, I would want to know who selected this individual. And what was their thinking? Why did they put that individual on this list? Everybody knew from the plan that it was going to be heavy going, that there were going to be problems. It would just seem to me that you would want to know these things. GONZALES: Senator, no question... FEINSTEIN: When you talk about sort of an amorphous senior leadership, people think of grey-haired, very wise men making these decisions. In fact, they're very young and sometimes very ideological people. GONZALES: Senator, well, the... FEINSTEIN: Wouldn't you want to know who's making the decision? Because, when Mike Battle testified to the staff of what the response was when he called these U.S. attorneys, it was a shock out of the blue. It was a shot to the gut. They had thought they did very well. They had not been told there were problems. And they were called and they were told, you must leave. GONZALES: Senator, I've already -- I've already testified that, clearly, as I look back on it now, the process would have been much more rigorous. And there would have been some discussion, face-to- face, with either myself or the deputy attorney general. You mentioned something that reminds me the discussion back and forth between you and -- involving you and Senator Schumer about Carol Lam. I want to make sure that I'm clear about this. And that is, I believe, based upon my review of the documents, that Ms. Lam knew that there were concerns or certainly there was an interest in her performance with respect to immigration prosecutions. I don't know whether or not Ms. Lam knew that the Department of Justice had those specific concerns or that if things didn't change that she might lose her job. I wanted to make sure that you understand that. FEINSTEIN: Oh, but, let me -- I understand this, but let me tell you, we all get concerns, all the time. But if I were employed by Justice, I would be curious as to what my bosses think, not the flack that I may or may not be getting from other places. Because the flack to some extent comes with the territory. GONZALES: Senator, I expected that my concerns about her immigration numbers, prosecution numbers and her gun prosecution numbers would be communicated to Ms. Lam. That's what I understood... FEINSTEIN: But two months before she was fired, in a letter to me, Bill Moschella, Will Moschella, said everything was fine with her immigration numbers. GONZALES: Senator, I believe... FEINSTEIN: She has told us she was never contacted by the department about immigration. GONZALES: Senator, I... FEINSTEIN: My time is up. GONZALES: Thank you. LEAHY: Did you want to respond to that question? GONZALES: That's fine, sir. LEAHY: I'd certainly allow you to, if you want to. GONZALES: Thank you, sir. LEAHY: Senator Hatch? HATCH: Well, thank you, Mr. Chairman. I think we all will agree, I think you've agreed, that this was poorly handled. GONZALES: Yes. HATCH: I contrast that with the years of service you've given, not only at the White House, but at the Justice Department, and all of the really good things that you've been able to do. I mean, how many times do you have to be flagellated over that? Let me give you another illustration. With regard to public prosecutions, do the named U.S. attorneys always try those cases? GONZALES: No, sir. HATCH: Very seldom. GONZALES: In fact, in most cases they're tried by the career professional with experience. HATCH: By professional staff, right? GONZALES: That is correct, sir. HATCH: They're tried by professional staff. So if a U.S. attorney leaves, that case continues on, right? GONZALES: The institution is built to withstand change in the leadership positions. That's the way it should be... (CROSSTALK) HATCH: Am I right, if the U.S. attorney leaves that case continues and it's well handled? GONZALES: That's true. HATCH: And that's without interference by the Department of Justice. Is that correct? GONZALES: We have every expectation that the case will continue and move forward. HATCH: And there's no indication -- well, let me say this as well. I think it's important to say this, that U.S. attorneys serve, as everybody here has admitted, at the pleasure of the president. They don't serve at the pleasure of the United States Senate. They're confirmed by us, but they serve at the pleasure of the Senate. And you serve at the pleasure of the Senate -- or the president, too. GONZALES: Yes. HATCH: You're confirmed by us. We have a role, but that's not -- but our role is not that they serve at our pleasure. As I've said, I believe there are two legitimate issues in the U.S. attorney controversy. First, were any of them removed for an improper reason? Second, did any administration officials knowingly mislead or lie to Congress or the public? After three months of hearings, all kinds of interviews, and thousands upon thousands of pages of documents, the evidence shows that the answer to both of those questions is a resounding no. Now, continuing past the point of answering those questions, it appears motivated more by partisan profit taking than proper oversight. And because some have not been able to -- they have not been able to prove either improper interference with an ongoing case or investigation or a knowing misleading of the Congress about how these U.S. attorneys were removed, some now want to shift gears and ask why some of the U.S. attorneys were not removed, as you saw this morning. HATCH: Well, crossing this line is wrong, and causing to question not decisions made about a few U.S. attorneys in the past, but decisions made by many U.S. attorneys in the present and future. Now, as you said in your statement, you've recently met with U.S. attorneys all over the country, about 70 of them, if I recall correctly. GONZALES: Over 70 -- yes, sir. HATCH: Over 70. How would this type of approach impact them, you know, why they're not removed? And their decisions, their cases, their work -- to go down this road will raise suspicion, innuendo and doubt about their service -- I mean, that bothers me just a wee bit, too. GONZALES: Senator, the perception is something that I'm very, very concerned about and something that I'm committed to try to address. HATCH: Well, in your op-ed column published last Sunday in The Washington Post and your written statement today, you had described how you have asked the Office of Professional Responsibility separately to investigate this U.S. attorney controversy. Now, many Americans might not be familiar with the Office of Professional Responsibility, OPR, in the Justice Department. If you would, please describe that office in general, and then focus on what you've asked the office to investigate and what you believe its work will contribute regarding this controversy. GONZALES: Senator, it is an office headed by a career professional. The role of the office is to ensure that the Department of Justice lawyers meet their professional obligations as lawyers, have met their ethical obligations in providing legal advice as lawyers. And that's the role of the office. And I thought it was important because of allegations of wrongdoing by lawyers at the department for the Office of Professional Responsibility to look into this matter. Because I wanted to reassure... HATCH: That's no small request, right? GONZALES: Well, Senator, I think it's a serious issue when you're asking the Office of Professional Responsibility to look at the conduct of a lawyer. HATCH: Once you asked them to do that it's in their hands, not yours, right? GONZALES: It is certainly within their hands. And let me just add that I have recused myself, in order to avoid appearances of impropriety. I've recused myself of oversight of that investigation or the investigation of the Office of Inspector General, in relation to this matter. HATCH: Well, I think we can all agree this was poorly handled. GONZALES: Yes, sir. HATCH: But you delegated this authority to others to handle, who you had faith in and trust. GONZALES: Yes, sir. (CROSSTALK) HATCH: But you've taken responsibility for... GONZALES: I accept full responsibility for this, Senator. I'm head of the department. I made the decision to delegate this process. I assumed the process would be better, and it wasn't. And I accept responsibility for this. But at the end of the day, I know that I did not do anything improper. And based on what I know and have seen, I don't think anyone made... HATCH: So that's... GONZALES: ... any recommendations to me based on improper motives. HATCH: That's one reason why, this morning, I brought out how many hundreds of -- more than 100,000 people you supervise. You're constantly at Cabinet meetings or other meetings at the White House. Why, you're even called up here on a regular basis, although it's been infrequent, but nevertheless, you have to go not just to the Senate but to the House. You have constant phone calls from us up here that you answer. GONZALES: Senator, there are a lot of responsibilities as attorney general. But my job is also to be responsible for what happens at the department. And I accept responsibility for what happens. HATCH: But my point is, is that you're accepting responsibility, but you have a lot of other responsibilities that you've been carrying out effectively and well. GONZALES: I believe so. HATCH: That can't just be tossed aside, like you're not doing the job down there, which is, kind of, the implication that comes out of this every once in a while. Let's all admit this was poorly handled. It could have been better handled. If you had had more hands on, on this, maybe we wouldn't be in this position today. On the other hand, with 100,000-plus employees, it's easy to see why something sometimes slips by. And this one certainly did. And I don't -- if there was any evidence that you were interfering with an ongoing investigation or case, or that you knowingly misled this Congress, that's another matter. But there isn't, and I just want to point that out and say, you know, you've taken a lot of lumps here, but you've also handled yourself well, too. And I just wanted to make sure that there's a little more even-handedness about this. Thank you, Mr. Chairman. LEAHY: Thank you. I just want to make sure I fully understand one of your questions. Were you suggesting that OPR, Office of Professional Responsibility, operates outside of political interference? LEAHY: Was that what you were saying? GONZALES: Senator, their job is to provide an evaluation about the professional performance of the attorneys within the Department of Justice. LEAHY: Do -- are they ever subjected to political -- have you ever been aware of them being subjected to political influence? GONZALES: Senator, I'm not sure I can answer that. I think as a general matter I'm not aware of that. I'm not sure I understand what you mean by political influence. LEAHY: Well, I'm thinking about the time the OPR was asked to look into the question of warrantless wiretapping by NSA, something that eventually turned out that they shouldn't have done. And they were told and given a political order, look no further. GONZALES: Sir, I don't know if I would characterize the political -- I recommended that the Office of Professional Responsibility -- I recommended to the president that the Office of Professional Responsibility be read into the program so they could conduct an evaluation of the performance of lawyers within the Department of Justice. And the decision was made by the president that that would not be the right thing to do. And that's what happened in that particular case. LEAHY: So I just didn't want to leave the impression that they operate unfettered by political influence, in that case in a very, very serious matter involving this nation, involving our laws, involving the FISA Court -- they weren't interfered with. GONZALES: Senator, can I just make one comment? LEAHY: Sure, of course. Of course. GONZALES: I think it's important that the American people understand that the Office of Inspector General has been read into the program. And they're certainly looking into the role of the FBI in connection with this program. CARDIN: Thank you. Mr. Attorney General, I want to make sure the record's clear about your knowledge of what Monica Goodling might be able to contribute to -- her input or what she knows on the process with the dismissal of the U.S. attorneys. So I just want to give you that opportunity to make sure our record is complete about your knowledge in that regard. GONZALES: Senator, I'm not sure I have anything to add about Ms. Goodling's role. I don't have any specific recollection about what else she might have done. Certainly, after the fact, after the decision, I'm aware that she was involved with respect to preparation of testimony and things of that nature. But in connection of her involvement in the role of this -- Let me just say this. There is in the documents, as I recall seeing them after the fact, obviously she's involved in communicating with the White House with respect to certain individuals. And she is involved in other kinds of communications. GONZALES: I don't want to minimize her role. But I certainly -- she was not one of the persons I was relying primarily on with respect her to a recommendation to me about this decision. I relied primarily -- what I would be relying primarily on the recommendation of the deputy attorney general, who every one of these U.S. attorneys reported to and was a former colleague. I would be very interested -- it was my understanding, sir, and my hope that Mr. Sampson would consult also with the acting associate attorney general, also the sitting United States attorneys (ph)... CARDIN: I just want to make sure I got Monica Goodling -- your recollection of whether there's anything more that should be in the record from your testimony in regards to her. GONZALES: Sir, I don't have any independent knowledge beyond what's reflected in the documents. CARDIN: I want to go to the issue of voter intimidation, voter fraud. In a couple of the districts, voter fraud was an issue involved in the dismissal of the U.S. attorneys. It's come up several times. You and I have talked about voter intimidation. I'll just tell you in my state of Maryland, in one precinct in Prince George's County, Maryland, there are more eligible voters who came out to vote and did not vote because the lines were so long that they just didn't have the time to wait a couple hours to vote. Then all the people in Maryland who may have cast a vote who were not eligible to vote. I mention that because there seems to be a growing activities of voter intimidation to try to affect minority voters around the country. We saw that in half a dozen states by specific examples in the last election. Now, you have indicated that the lack of energy on voter fraud was involved in evaluation of a couple U.S. attorneys. I didn't see any evaluations at all about U.S. attorneys being aggressive in dealing with voter intimidation. CARDIN: And I'm just wondering where the priority of the office will be. GONZALES: Senator, I think you've raised a very, very good point. First of all, with respect to voter fraud, generally, as someone who grew up in a poor neighborhood, the one day we were equal to everyone else was on Election Day. And so, I really appreciate how important the right to vote is. Voter fraud to me means you're stealing somebody's vote. And so, I take this very, very seriously. Having said that, in enforcing or prosecuting voter fraud, we need to be careful that we don't discourage people or intimidate people from participating on Election Day. And I think it's important to send a strong signal that if you're going to do an investigation, be sensitive to the fact that you don't want to create -- have a chilling effect or create some kind of cloud and discourage people from participating. And so, that, to me, is very, very important. We have guidance about that, doing those kind of investigations near an election. Because it's important to enforce the law; it's important to pursue voter fraud, but let's be sensitive about the effect it has on, particularly, minority participation. CARDIN: I agree with that. And I just hope that you will take a look at the Obama bill that we have pending before this committee. All of the information I have seen -- and I agree with you on voter fraud. Voter fraud should be prosecuted. Somebody tries to vote who shouldn't be voting, absolutely they should be prosecuted. But the amount of voter fraud, from what has been seen in those areas where those studies have been done, is minuscule compared to those who are eligible to vote that have been for one reason or another unable to cast their vote. And there has been an increasing amount of activity, whether it be voting machines that don't work in minority areas, as happened in Maryland, or whether it is literature that's handed out that's blatantly wrong, intimidating voters that they may be arrested if they try to vote in minority communities, or giving the wrong Election Day, or giving wrong information about political endorsements that are racially motivated -- that, to me, has a very serious effect on minority participation in voting and needs to be a priority. So I am somewhat concerned that as you're looking at the aggressiveness of the U.S. attorneys office to carry out a policy on making sure that everyone's vote is properly counted, that we have balance here in making sure that we give the attorney general the tools that you need to counter voter intimidation, and that we work together to really make sure that every vote can count in this country -- and we haven't reached that yet, so we need to have that balance. GONZALES: Senator, you and I have spoken about this. I believe that you met with the head of the Civil Rights Division. This is something that's important to me, personally, and so it's something I would be anxious to work with you about. I think there needs to be a balance. CARDIN: Thank you. Mr. Chairman, I yield back the balance of my time. LEAHY: Thank you. And I -- we told the attorney general before Senator Cardin asked questions we were going to take a 10-minute break, and that was my mistake that we didn't. We'll stand in recess for 10 minutes. GONZALES: Thank you, Mr. Chairman. (RECESS) LEAHY: I would note that we have a statement from Senator Biden for the record, which I will put in the record. Senator Whitehouse has asked for a question. I think Senator Schumer may have further. Unless Senator Specter has something further. I will not. The attorney general has had a long day here, and I'd hope that this would soon wrap this up. And I mention this also for the press and others so they'll know where we are. And I've discussed it already with the attorney general. Senator Whitehouse? WHITEHOUSE: Thank you, Mr. Chairman. Mr. Chairman, with your permission, may I give two documents to the witness? LEAHY: Yes. And we won't start the clock until he's had a chance to... WHITEHOUSE: Great. Thank you. We'll circulate them to anybody who's here. Back to structure again, Attorney General Gonzales. I assume that we can agree with the proposition that in the enforcement of the laws the Department of Justice should be independent. GONZALES: Yes, sir. WHITEHOUSE: Can we also agree that one of the institutions of government that the Department of Justice needs to be independent from in the enforcement of the law is the White House? GONZALES: No question about it, Senator. If you're talking about prosecuting someone in the White House, yes, we should be independent from them when we're making those kind of decisions. WHITEHOUSE: And, indeed, over long history there have been concerns about influence from the White House to the Department of Justice, and people, indeed members of this committee, have expressed concern about the White House-Justice connection over many years. Is that not also correct? GONZALES: I think that's a legitimate concern. I think that's very important. I think it's one of the reasons, for example, that Attorney General Ashcroft recused himself in connection with the Plame investigation. WHITEHOUSE: The documents that I have given you are two letters. One is from Attorney General Reno to Lloyd Cutler, the special counsel of the president, dated September 29th, 1994. It lays out the policy for contacts between the White House and the Department of Justice in the Clinton administration. And to give credit where credit is due, it's my understanding that the distinguished Senator Hatch, who was then the chairman of this committee, had substantial interest in this and viewed it as a significant area of oversight. And I want to commend him for that. And what it does -- the language is behind me -- it says that, with regard to initial contacts involving criminal or civil matters, they should only involve the White House counsel or deputy counsel, or the president or vice president, and the attorney general or deputy or associate attorney general, period. The more recent memorandum, the other document that you have in front of you is from April 15th, 2002. It represents the policy of the Bush administration regarding White House-Department of Justice contacts. And there, in the highlighted part on the front, it says that these contacts regarding pending criminal investigations and criminal cases should take place only between the office of the deputy attorney general and the office of the counsel to the president. And then, if you flip back to the very last page, there's sort of an exemption paragraph that exempts further the president, the vice president, the counsel to the president, national security and Homeland Security officials, staff members of the office of the attorney general as so designated, and staff of the office of the president, the office of the vice president, the office of the counsel to the president, the National Security Council and the office of Homeland Security. So I asked my staff to take a look at what the difference was between those two in effect, and if you could. This is in effect during the previous administration. This is the Clinton protocol. And there were four people -- the president, the vice president, the deputy White House counsel and the White House counsel -- who could participate in these kind of discussions about cases and matters and initiate them with the Department of Justice. And on the Department of Justice side, the only people who were qualified to engage in those discussions were the attorney general, the deputy attorney general and the associate attorney general. So they had narrowed very carefully the field of people who could have these discussions, which I think is a very important safeguard -- to narrow that porthole, to police it. It's almost like there's an airlock there for those communications. Now, here's the result that I asked my staff to put together, if you count all the people who are eligible under the new program. That, to me -- your staff can check on exactly how accurately we've done it -- but there are, I want to say, five -- what were the numbers? (CROSSTALK) WHITEHOUSE: 417 folks in the White House who are eligible to have these contacts and... (CROSSTALK) WHITEHOUSE: About 30-some in the Department of Justice. And, again from a structural point of view, my question to you is, when over years this issue of White House to Department of Justice contacts has become so significant when, you know, even on the Republican side of the Judiciary Committee there's intense concern about this over the years. And it's been narrowed down to a fine porthole like this. You were the White House counsel at the time. What possible interest in the administration of justice is there to kick the porthole so wide open that this many people now can engage directly about criminal cases and matters, compared to before? GONZALES: Senator, I think you've raised a good point here, one that I was concerned about at the counsel's office and I remain concerned as attorney general, in terms of making sure that communications from the White House and the Department of Justice remain in the appropriate channels. I do recall being concerned about that as White House counsel. WHITEHOUSE: Quite a pronounced change, isn't it? GONZALES: Well, it is a pronounced change. However, it's my understanding of the policy -- again, this is DOJ policy that occurred April 15, 2002 -- was that communications with respect to individuals at the National Security Council would not be with respect to particular cases, but with respect... WHITEHOUSE: This is national security aside. That's (inaudible). This is not national security. This is criminal cases and civil cases, initial contacts between the White House and the Department of Justice. GONZALES: Senator, let me say this. I am not aware that there are initial contacts between the White House and the Department of Justice as an initial matter with respect to specific criminal cases. Or if there are -- let me put it this way: I don't think they should be. I think it's very, very important -- I agree with you. It is important to try to limit the communications about specific criminal cases between the counsel's office and the Department of Justice. WHITEHOUSE: But when I see the rules opened this much, it makes me wonder to what extent this safeguard is considered significant in this administration. WHITEHOUSE: And then we hear stories like we've heard of United States Attorney McKay, reporting that when he went to the White House to be interviewed, he was told by White House Counsel Harriet Miers that he had -- and this was the word he used, in quotes -- "mishandled the voter fraud investigation in the recent election." Now, I've met Harriet Miers. She strikes me as a very careful, intelligent, thoughtful lawyer. She wouldn't throw around a word like "mishandled," I don't think, which implies a very significant degree of evaluation. And it seems to me that one or two things is true about that conversation. Either she had no idea what she was talking about and she misused that term, or she had some idea of what the evidence was in the voter fraud case in McKay's district that did not go forward. And what I'd like to know is: Do you know which one it was? And if it was the latter, how on earth did she get evidence regarding a Department of Justice case sufficient to form the professional opinion that the United States attorney had mishandled that case? GONZALES: Senator, I am not familiar with the conversation that occurred between Mr. McKay and Ms. Miers. I, like you... WHITEHOUSE: Have you seen the story on it, though? GONZALES: I'm aware of the reports, but sometimes... WHITEHOUSE: Doesn't that send up a big, red flag? GONZALES: Sometimes stories are wrong. And the fact that that she also may have been aware of the reports, knowing that this was an issue in this district, that she many have inquired about, well, what happened here; is there something to worry about -- without having any specific knowledge about the underlying facts of the case. But I don't know. I'm just... WHITEHOUSE: Has there been any effort to run down what happened, that caused a White House counsel to reach an evaluative opinion about an ongoing prosecution, or even then, a closed prosecution, I gather, just by way of safeguarding how information is traveling back and forth across this now wide-open screen? GONZALES: Well, I think the safeguards that you're referring to, I think, are very, very important. I'm not sure that there would have been a prosecution relating to the absence of a prosecution. To answer your question, I'm not aware of any going back and looking at what happened here. Again, I don't know if what the reports are even stating are even accurate. But I, like you, am concerned about the level of contacts in ensuring that the communications from the White House and the Department of Justice occur at the appropriate -- within the appropriate channels. WHITEHOUSE: Mr. Chairman, I know I'm over my time, but if I could ask a couple of quick questions about OPR and OIG. LEAHY: I think this is -- I think this is significant. I'm willing to not take the other questions I was going to ask. I find the chart astounding. It goes beyond anything I've seen in 32 years here. Please go ahead and finish your questions. WHITEHOUSE: OPR and OIG are both investigating this matter. GONZALES: Yes, sir. WHITEHOUSE: OPR reports are ordinarily not public. OIG reports ordinarily are. Can we be assured that the results of the OPR/OIG investigation will in fact be made public? GONZALES: Senator, I think -- as I indicated in response to your earlier question, that I am recused from the oversight of these two investigations. And so, as a technical matter, I'm not sure that's going to be a decision for me to make, quite frankly. And Mr. McNulty, the deputy attorney general -- I advised to recuse himself. And so Paul... WHITEHOUSE: Who do you talk to? GONZALES: Paul Clement, the solicitor general. WHITEHOUSE: When you look at the record -- you've asked us several times to look at the record of the department -- of public corruption prosecutions. Would you object to us asking the Office of the Inspector General to look at the record of public corruption prosecutions and give us a confidential report, stripped of any sort of tell-tale information, so that we can actually test that proposition that you've invited us to look at? GONZALES: Senator, I don't know whether or not that is really -- as a general matter, as to whether or not lawyers have discharged their professional responsibilities is not a matter within the purview of the Office of Inspector General. But I believe it falls in the purview of the Office of Professional Responsibility. I'd be happy to go back -- again, I'm not even sure I'm recused from making that decision -- but I understand your request and we'll see.. WHITEHOUSE: I think it's actually properly OIG. And my last point is that it was originally your choice to refer this matter to the Office of Professional Responsibility, correct? GONZALES: Yes, sir. WHITEHOUSE: Now, a suspicious mind would say, "Well, wait a minute. OPR never makes a report." And, more than that, OPR is limited to evaluating the conduct of attorneys within the Department of Justice when they're acting as attorneys. WHITEHOUSE: It does not evaluate their administrative actions. It does not evaluate whether they've subjected themselves to political influence. And my question to you is: Who, in this entire process that led to the termination of the U.S. attorneys, was, at any point in this, acting as a lawyer, and not administratively? GONZALES: You raise a good question. And I want to be careful about what I say here, because my recollection may be a little fuzzy. But I believe that in talking with our acting chief of staff, Chuck Rosenberg, I spoke with him about the possibility of doing some kind of joint investigation. And so, I think the Office of Inspector General is going to be going to be looking at many of the issues that you're concerned about. I'm told that the Office of Inspector General had, on their own, decided that they were going to do an investigation, and, therefore, I really can't claim and shouldn't claim credit... WHITEHOUSE: It's a good thing. GONZALES: ... which is fine. But I guess the point I'm making is I believe that these issues -- these issues in terms of jurisdiction and who's going to look at what has been resolved between those two offices. And my understanding is they're going to pretty well cover the waterfront with respect to decisions about these eight U.S. attorneys, whether or not anyone intentionally tried to mislead Congress. And so, I think these issues are being looked at by both these offices. WHITEHOUSE: I guess my final question to you, then, is: In choosing OPR as the place that you wish to refer this investigation, did you take into account that OPR does not ordinarily make their findings public and that they are ordinarily limited to the conduct of lawyers in their conduct as lawyers, the things that might subject them to bar disciplinary activity, and there's really no relation between anybody's conduct here that's being questioned and their conduct as lawyers? Typical misconduct, this is your thing -- Brady violations, Giglio violations, Federal Rule of Criminal Procedure 16 violations, improper conduct before a grand jury, improper coercion or intimidation of witnesses, improper use of peremptory strikes, improper questioning of witnesses, introduction of evidence, misrepresentation as to court, improper opening and closing arguments, failure to diligently represent the U.S. and its government, failure to comply with court orders, scheduling orders, Hyde Amendment fees violations. None of that has anything to do with what we're questioning today. Why OPR? GONZALES: Senator, that's, I guess, a fair question. And I think that's the reason why I raised with our acting chief of staff is to have the Office of Inspector General also look at this. GONZALES: But again, I can't claim and won't claim credit for asking OIG to look into this, because my understanding is they were already thinking about doing that, or they were already beginning to look at it. I don't recall -- I don't recall making the decision about OPR, thinking about, well, this is going to be a private report to me. Because, again, on March 8, when I met with the chairman and others, I volunteered that we would turn over documents, voluntarily. I volunteered that we would make DOJ officials -- voluntarily. And so my actions have been consistent with the principle that (inaudible) to get to the truth, and that's very important to me. WHITEHOUSE: Well, I've long overextended my questioning. And I appreciate very much the courtesy of the chairman and the ranking member and the senator from New York, in allowing me to do so. LEAHY: Thank you. I understand the senator from New York needs a couple minutes. SCHUMER: That's all I need, yes. LEAHY: Go ahead. SCHUMER: Thank you, Mr. Chairman. Mr. Attorney General, at the beginning of the hearing, we laid out the burden of proof for you to meet, to answer questions directly and fully, to show that you were truly in charge of the Justice Department, and most of all, to convincingly explain who, when and why the eight U.S. attorneys were fired. You've answered "I don't know" or "I can't recall" to close to a hundred questions. You're not familiar with much of the workings of your own department. And we still don't have convincing explanations of the who, when and why, in regard to the firing of the majority of the eight U.S. attorneys. Thus, you haven't met any of these three tests. I don't see any point in another round of questions. And I urge you to re-examine your performance and, for the good of the department and the good of the country, step down. Mr. Chairman, I yield -- I yield my time. LEAHY: Thank you. GONZALES: Mr. Chairman, may I respond? LEAHY: Of course, you may. GONZALES: Respectfully, Senator Schumer, I think all Cabinet officials should ask themselves, every day, what's best for the department that you lead. And it's something that I ask myself every day. I agree with you that I have the burden of proof of providing to you the reasons why I made my decision. But the burden of proof as to whether or not something improper happened here, respectfully, Senator, I think, lies upon those making the allegations. And I've done everything I can to help you meet your burden of proof, in terms of coming up here and testifying, and making other DOJ officials available, and providing documentation. But I think, in terms of whether or not something improper has happened here, respectfully, Senator, I think that burden lies upon you and others who are alleging that something improper happened here. SCHUMER: Mr. Chairman, that would be true if this were a criminal trial, sir. Our standard for attorney general isn't simply "no criminal" standard. It's a much higher standard than that. And when you answer so many questions "I don't know," "I can't recall," when major details of important issues are not at your fingertips, or even in your knowledge, and most of all, no, sir, when you fire U.S. attorneys, the burden is on you to give a full, complete and convincing explanation as to why. And people on both sides of the aisle failed to get that. SCHUMER: So, sir, in my view, no, no, no. When you fire people who have good evaluations, who have devoted themselves to this country, the burden of proof lays on those -- on the person who did the firing, who took responsibility for the firing. Thank you, Mr. Chairman. LEAHY: Thank you. Senator Specter? SPECTER: Mr. Attorney General, we begin with the recognition of the long, arduous route you've taken, with great difficulty and accomplishment. As I said at the start, Harvard law and the state supreme court in Texas and White House counsel and attorney general of the United States. And I think you have been as forthcoming as you could be in your testimony today. But the issue of credibility, I think your credibility has been significantly impaired because of the panorama of responses you have made, where you denied being involved in, quote, "discussions," and then your three key assistants contradicted you on that. Where you then shifted to not having been involved in deliberations. And I went over with you the long list. You did touch the issues as to U.S. Attorney Lam in San Diego and what would happen to U.S. Attorney Iglesias in New Mexico and what would happen to U.S. Attorney Cummins in Arkansas. And then your denial of knowing about memoranda, and you were at meetings where documents, memoranda, were distributed. So I think inevitably there is a loss of credibility just necessarily. You and I talked informally during the luncheon break, and you elaborated upon one of your answers where you said that when you were questioning U.S. Attorney Lam's record to stay, that it was different from what you had asked Chief of Staff Kyle... GONZALES: Sampson. SPECTER: ... Sampson to investigate and, in my view, there's absolutely no difference. Those are the same thing. And when you look at Ms. Lam's performance, you were involved in the deliberation, the judgment as to what would happen to her. Now, that was difficult for me to understand how you could try to make that distinction. But I know you're doing that in good faith. But the net result is, I think, necessarily a loss of credibility. And I say that to you candidly and in a friendly way. When you come to the issue of the request of all these U.S. attorneys to resign, I agree with the conclusions that it doesn't do any good to ask any more questions, because I think we've gone about as far as we can go with multiple rounds of questions today. And you have been a forceful witness, and you have had a lot of staying power. But we haven't gotten really answers. And I think it's going to take a detailed analysis. I urged you to put on the record the details as to all the U.S. attorneys you asked to resign so that we could evaluate. And you have not done that. You have not done that. And I still think it would be useful if you did that as to your personal views. But perhaps it'll be the inspector general, or perhaps it'll be the Office of Professional Responsibility, or maybe they're not the right ones to do it. Or our investigation will go forward. And we've talked to a lot of people, questioned a lot of people under oath. And we'll continue to do that to try to get the answer. When it comes to the question as to impact on the department, Mr. Attorney General, it seems to be inevitable that there has been a morale problem with this, some of the questions has disclosed. There would be an implicit message, if not an explicit message, even an unintended message that U.S. attorneys ought to be on guard for their independence. And I handled the prosecutor's job and know the importance of not being concerned about any collateral influence beyond the law and the facts. And I think that has to have had an impact on the department. And for you to have said it's an overblown personnel matter, I think that can't be erased. And the clouds over a lot of these professionals can't be erased. And the worry by those who haven't been subjected to those clouds can't be erased. Now, I'm not going to call for your resignation. I'm not going to make a recommendation on that. SPECTER: I think there are two people who have to decide that question. You have to decide it in the first instance. And if you decide to stay on, then it's up to the president to decide. He is the appointing power. And I've signified the concerns that I have and the impact that I think it has on the department. But I think it's beyond the purview of a senator. I mean, senators can do whatever they like. And I'm not questioning anybody who wants to do it differently. But for myself, I want to leave it to you and the president. Thank you, Mr. Chairman. LEAHY: Thank you. First off, I thank the attorney general for being here. This has not been a day that I think he wanted. I also thank the committee members, both Republicans and Democrats, who are here. I think most of the senators took this very seriously, asked very serious questions. You know, I can't help but think years ago -- we talk about our backgrounds. I was in law school at Georgetown, invited with a handful of young law students who were working here for the summer, here in Washington, to meet with the then- attorney general. I thought it would be a courtesy call, in and out. The attorney general spent well over an hour with us, actually considerably longer than that. He talked about the Department of Justice, how important an arm it is of the government and how it's truly the one really independent arm of the government. It's the attorney general of the United States, not the attorney general of the president, which is interesting, especially because of this particular attorney general. And talked about the men and women who worked there, most of whom he had no idea what their political affiliations were and he just knew how professional they were. LEAHY: And I remember saying afterward, to my wife, and have thought about it since, how great it would be to work there, or to be a prosecutor. I was blessed with the opportunity to become one, for eight years. But I thought, both when I was prosecutor -- and I know Senator Specter felt the same way -- that the independence was the most important thing. And the independence of our nation's top federal prosecutors are -- it's no small matter. When you appeared here, Mr. Attorney General, in January 2005, for your confirmation hearing, you said, "I feel a special obligation, an additional burden, coming from the White House, to reassure career people at the department, and to reassure the American people that I'm not going to politicize the Department of Justice." I'm afraid that both the testimony today and the evidence that we've uncovered during this investigation shows that politics have entered the Department of Justice, to an unprecedented extent. And if left unchecked, it would become just a political arm of the White House. That is something I would oppose, whether it's a Democratic or Republican administration. The attorney general is not White House counsel. Every president's entitled to, and should have, a White House counsel. But the attorney general's the attorney general of the United States. And if you put partisan politics -- you have many people who have been appointed in political factions who I do not believe are competent. You have poor management. Then you add such things as the widespread abuses of national security letters, and we're -- we know it goes even beyond what we've heard. You have the invasion of Americans' privacy, in an unprecedented fashion. Never in this country have we had such an invasion of Americans' privacies. LEAHY: We see the inaccuracies, gross inaccuracies, in the department's FISA applications, Foreign Intelligence Surveillance Act applications. So I say this -- saying we're going to have to continue and will continue. I must admit that this is a day that does not make me happy at all. I can think of very few things I've presided over or been part of -- and I've been the majority or the minority half a dozen times. I cannot think of any time that I've been more concerned and more concerned for the system of criminal justice in this country. So with that, we stand adjourned. END # # #