What Really Happened in the U.S. Attorneys Mess(A look at the case of Carol Lam.)

Tomorrow Kyle Sampson, the former chief of staff for Attorney General Alberto Gonzales, will testify before the Senate Judiciary Committee investigating the U.S. attorneys matter. Sampson’s appearance comes a few days after word that another top Justice Department aide, Monica Goodling, has informed the committee that she will take the Fifth Amendment against self-incrimination if she is called to testify. In a statement, Goodling’s lawyer blasted committee Democrats, charging that chairman Sen. Patrick Leahy and others “have already publicly drawn conclusions about the conduct under investigation.

The most incendiary charge leveled by Democrats, and particularly by committee member Sen. Charles Schumer, is that the Bush administration fired the U.S. attorneys to stop criminal investigations that targeted Republicans. The worst example, Schumer has alleged, is the firing of Carol Lam, the California U.S. attorney who successfully prosecuted former Republican Rep. Randy “Duke” Cunningham for bribery. Lam was fired, Schumer charges, to keep her from investigating others in the GOP.

“The most notorious [case] is the Southern District of California, San Diego,” Schumer said on NBC’s Meet the Press on March 18. “Ms. Lam, the U.S. attorney, had already brought about the conviction of Duke Cunningham. It came out in the newspapers that she was continuing to pursue that investigation, and it might lead to others — legislative and others — and in the middle of this investigation, she was fired.”

If that indeed happened, it would be reasonable to guess that there might be some clues in the more than 3,000 pages of e-mails and other documents pertaining to the U.S. attorneys matter released by the Justice Department. But that’s not the case. In fact, the e-mails show a much different dynamic at work. The picture that emerges from the evidence in the Lam case is of a Justice Department at profound policy odds with the U.S. attorney, preparing to take action against her, but at the same time ignoring or brushing off outsiders who criticized Lam on the very grounds that troubled Department officials. Added to that was a bureaucratic morass that made it impossible for the Department to do anything quickly. Together, those factors created a situation in which Department officials pursued a reasonable goal — finding a new U.S. attorney for Southern California — while denying to outsiders that they were doing it, taking far too long to get it done, and mismanaging its execution. In other words, it was an operation in which Justice Department officials did virtually everything wrong — except what they’re accused by Democrats of doing.

A POLITICAL OFFICE In 2001, for a brand-new Bush administration trying to move fast on many fronts, finding a new United States attorney for the Southern District of California wasn’t easy. Actually, finding any U.S. attorneys for the state of California wasn’t easy. Although they are officially nominated by the president, U.S. attorneys in each federal district — California is divided into four such areas — are traditionally chosen by the senior official of the president’s party in the state. Often that is a senator, but if there is no senator of the president’s party, the responsibility passes to the governor. And if there is no governor of the president’s party — well, the White House tries to figure out another way.

That was the problem facing George W. Bush in California, with Democratic Senators Dianne Feinstein and Barbara Boxer, and Democratic Gov. Gray Davis. The president’s solution was to rely on a selection committee headed by a man named Gerald Par sky, a Los Angeles investment banker who ran the Bush campaign in California and who also helped in the search for nominees to lower-court federal judgeships.

It wasn’t an easy job; the position of U.S. attorney for the Southern District had been wracked by politics in the previous decade. In 1993, Bill Clinton replaced the Republican U.S. attorney, a career prosecutor and veteran of 20 years in the Justice Department, with Alan Bersin, a law professor who had no prosecutorial experience but who had been a classmate of Clinton’s at Yale and head of the Clinton campaign in San Diego. (Bersin pledged to vigorously pursue Clinton priorities like environmental law.) In March 1998, Bersin resigned to become head of the San Diego school system.

The man who was thought to be the hands-down choice to replace Bersin was prosecutor Charles LaBella, but LaBella ruined his chances when he was chosen to lead the Justice Department’s investigation into the 1996 campaign-finance scandal. Frustrated with the restrictions put on his investigation by then-Attorney General Janet Reno, LaBella publicly called for an independent counsel — an act that deeply angered the Clinton White House. When the time came to pick a new U.S. attorney, LaBella was passed over. An interim prosecutor, never confirmed by the Senate, took the job.

After George W. Bush took office, several names were mentioned for the job, including San Diego city attorney Casey Gwinn, who had the support of Republican congressmen from the area. By August 2001, a few more names were in the mix, including Charles LaBella himself and San Diego Superior Court judge Carol Lam. But months passed, and nothing happened. The word in Bush circles was that diversity concerns and political considerations were holding things up. “They had to have Asian-American women,” recalls one lawyer who was involved with the process. Lam fit that bill, but she was also an independent — not a Republican. In the end, though, she got the job; the Bush administration formally nominated her in August 2002, and she was confirmed by the Senate in November. It had taken the president more than a year and a half to place a U.S. attorney in San Diego.

So a troubled selection process ended. But a troubled tenure began, a tenure that would end in December 2006, when Lam was one of the eight U.S. attorneys whose firings would become the latest scandal roiling Washington.

IT DIDN’T START WITH DUKE The key allegation in the Lam case is that she was fired because she was going to continue to prosecute cases that grew out of the Cunningham matter. But the documents release by the Justice Department show that officials there were dissatisfied with her work and were considering replacing her well before the first allegations against Cunningham ever arose, in a June 2005 story in the San Diego Union-Tribune.

It all got started in December 2003, with an article in another paper, the Riverside, California Press-Enterprise. The story was headlined “Border Agents Face Uphill Fight: Even after arrest, prosecutions of smugglers are rare due to lack of resources,” and it quoted Republican Rep. Darrell Issa, who represents the area, criticizing federal authorities for not prosecuting criminal alien smugglers. A month later, the paper published a follow-up story detailing how an alien smuggler named Antonio Amparo-Lopez had been arrested at a border checkpoint but later let go.

Issa was disturbed by the story. On February 2, 2004 — 15 months before the Cunningham case began — he wrote a letter to Lam citing the Amparo-Lopez case and asking for “the rationale behind any decision made by your office to decline or delay prosecution of Mr. Amparo-Lopez.”

Six weeks later, Lam wrote back, telling Issa to direct his complaint to the Justice Department in Washington. Two months after that, on May 24, Issa got a brief letter from Assistant Attorney General William Moschella, offering no explanation for Lam’s decision not to prosecute Amparo-Lopez. Moschella’s answer was, in full: “Based upon all of the facts and circumstances of his arrest, the United States Attorney’s Office declined to prosecute Mr. Amparo-Lopez.”

Unhappy with Moschella’s non-answer, on July 30, 2004 — still nearly a year before the Cunningham case broke — Issa wrote to Attorney General John Ashcroft. This time, Issa was joined by other California Republican congressmen, including David Dreier, Chris Cox, Jerry Lewis, Dana Rohrbacher, Cunningham, and several others. “It is our understanding that on numerous occasions when the Department of Homeland Security has apprehended alien smugglers and have requested guidance from the U.S. Attorney’s office, they have been told to release these criminals,” the congressmen wrote. “It is unfortunate and unacceptable that anyone in the Department of Justice would deem alien smuggling, on any level by any person, too low of a priority to warrant prosecution in a timely fashion.”

This time, it took the Justice Department six months to respond. When the Department finally got around to it, in a January 25, 2005 letter to Issa, Moschella defended the Department’s performance and offered no solutions. Issa grew more frustrated. “We were stumped in terms of getting information to explain the scope of the problem,” says Frederick Hill, a spokesman for the congressman. “We put the word out on the street that we were interested in getting more information about this.” Issa was hoping for a tip — perhaps from someone inside a law-enforcement organization — to give him the information he had been seeking.

But even though the Justice Department was offering Issa no answers and no help, his complaints were apparently registering. On March 2, 2005 (still a few months before the Duke Cunningham case broke), as officials considered a proposal to get rid of all 93 U.S. attorneys in the country, Kyle Sampson, the attorney general’s chief of staff, placed Lam’s name on a short list of those to be replaced. Her name was put in the category of “weak U.S. attorneys who have been ineffectual managers and prosecutors; chafed against administration initiatives, etc.” Sampson’s memo included the date on which Lam took her oath of office — November 18, 2002 — which meant that her four-year term would not expire until November 2006.

Issa, meanwhile, kept writing letters. In September 2005, Issa and his fellow California lawmakers bypassed the Justice Department and wrote directly to President Bush, warning of “a crisis along the Southwest border that needs your attention” and specifically complaining about the San Diego U.S. Attorney’s office. Six weeks later, Issa got a brush-off letter from Candida Wolff, the president’s assistant for legislative affairs. Nothing was done.

THE BRUSH-OFF After more than a year of complaining, Issa had gotten nowhere. On October 15, he tried yet again, writing to Lam about another notorious alien smuggler, Alfredo Gonzales, who had been caught and not charged. “Your office has established an appalling record of refusal to prosecute even the worst criminal alien offenders,” Issa wrote. A week later, Issa and his fellow California Republicans wrote to Attorney General Alberto Gonzales, citing Lam’s “lax prosecutorial standard” and asking for a meeting to discuss their frustration.

What Issa didn’t know was that officials inside the Justice Department shared his concerns about Lam. Several documents appear to confirm that: First, there was Sampson’s March 2005 memo listing the possibility of ousting Lam. Then, in January 2006, Sampson wrote a memo to then-White House counsel Harriet Miers saying, “I recommend that the Department of Justice and the Office of the Counsel to the President work together to seek the replacement of a limited number of U.S. attorneys.” If the decision to fire them was made, Sampson wrote, then Lam should be one of those considered for replacement. In April 2006, Sampson wrote an e-mail to Miers listing Lam as one of the U.S. attorneys who should be fired.

But none of that was public, and none of that was shared with Rep. Issa. But then, something happened to bring the problem into the open when Issa finally got the tip he had been hoping for. “We had a source in the Department of Homeland Security give our office a big stack of documents,” says Hill. Included in the documents were reports of cases logged by border stations in Lam’s district. There was case after case after case of smugglers being caught but never prosecuted. Issa was appalled.

He gave the document to the Associated Press, which reported that “the vast majority of people caught smuggling immigrants across the border near San Diego are never prosecuted for the offense.” The story was then picked up by CNN’s Lou Dobbs. And that, finally, got the Justice Department’s attention.

The revelations came amid increasing concern about the problem of illegal immigration. Suddenly lots of people wanted to know why Carol Lam wasn’t doing more. Even California Democratic Sen. Dianne Feinstein inquired. And as they did with Issa, Justice Department officials told Feinstein that everything was O.K. “Please rest assured that the immigration laws in the Southern District of California are being vigorously enforced,” Moschella wrote to Feinstein — at a time when Department officials themselves were not at all assured that the immigration laws in the Southern District of California were being vigorously enforced.

For her part, Lam argued strongly that Issa had gotten bad information, which he then passed on to the AP and CNN. “Representative Issa has been misled,” Lam wrote in a statement. “The document he calls a ‘Border Patrol Report’ is actually an old internal Border Patrol document, relating to a single substation, that has been substantially altered and passed off as an official report.”

Issa did not accept Lam’s explanation. The cases were real, he argued. “Your failure to address the substantive issues raised in the memo is consistent with previous news reports and comments I have repeatedly heard from Border Patrol agents who work closely with your office,” Issa told Lam.

Inside the Department, the reaction was skeptical, too. Shortly afterward, officials began a statistical study of Lam’s operation. The numbers showed that immigration prosecutions in the San Diego district had gone down since 2004, even as they continued to rise in other border U.S. attorney districts. “When you compare San Diego’s performance using 111 Assistant U.S. Attorneys…and New Mexico, with 59 Assistant U.S. Attorneys but still generating more cases than San Diego, it seems that San Diego should be doing much more,” said an internal email from the office of Deputy Attorney General Paul McNulty.

After the study was done, Kyle Sampson sent an email to one of McNulty’s top assistants. “Has [the deputy AG’s office] ever called Carol Lam and woodshedded her re: immigration enforcement?” Sampson asked. “Has anyone?” And the answer was no, although Lam surely knew that Justice officials were unhappy with her performance on that issue. A couple of months later, those officials were still studying her performance. “What is perhaps most striking to me is the fact that of the Southwest Border Districts [Southern California, Arizona, New Mexico, and South and West Texas], the Southern District of California is the only one that prosecuted fewer immigration cases in 2005 than it did in 2001 and 2002,” wrote one analyst. “Southern District of California is the only SW Border District to average a negative (-4.15%) rate of growth in the number of annual immigration prosecutions during the 2001-2005 period, which is all the more noteworthy given that with the exception of Arizona (which averaged just over 9% annual growth), the other SW Border Districts averaged double-digit growth rates over the same period.”

The internal e-mails and documents indicate that unhappiness with Lam had finally reached a critical point inside the Department. There were concerns beyond the issue of immigration — Lam’s performance on the enforcement of gun laws was another troublesome area — and by Fall 2006, Justice began making preparations to replace her when her term expired in November. In December, the Department told Lam she was out.

SLUGGISH, INSULAR, AND ARROGANT So that is the story, at least as far as we know it now. The one factor that does not appear in the documents is the Duke Cunningham case, which Democrats claim was the reason Lam was fired. The only connection specifically alleged so far is a circumstantial one: On May 11, 2006, Sampson wrote a memo urging action on the Lam matter the day after Lam informed the Department she was pursuing an investigation that would target Republicans. In the memo, Sampson referred to “the real problem we have right now with Carol Lam that leads me to conclude that we should have someone ready to be nominated on 11/18, the day her 4-year term expires.”

Some Democrats have pointed to the memo as a smoking gun. But there are problems with their theory. The first is that Sampson wrote his memo in response to an inquiry the day before from the White House, and his note was basically a resending of an e-mail he had sent the month before. More importantly, the evidence shows that Sampson urged that Lam be fired in notes written in March 2005, January 2006, and April 2006 — all before Lam informed Washington of her prosecution plans. The notion that Lam’s most recent investigation was the cause of her firing simply doesn’t have much support in the documents.

But the documents do reveal serious problems inside the Justice Department. The papers that have been made public show a Department that was sluggish, insular, and arrogant in its handling of the U.S. attorneys matter. Officials had no interest in hearing from critics, even those from the president’s own party, and they were not inclined to act until political pressure forced them to. All that is bad, and they deserve the criticism they get for it. But they didn’t fire Carol Lam to stop a criminal investigation.

— Byron York, NR’s White House correspondent, is the author of the book The Vast Left Wing Conspiracy: The Untold Story of How Democratic Operatives, Eccentric Billionaires, Liberal Activists, and Assorted Celebrities Tried to Bring Down a President — and Why They’ll Try Even Harder Next Time.

Thanks for the post from one who has not had the time nor desire to fully follow this non-story.

4 posted on 03/28/2007 12:34:10 PM PDT by Eagle of Liberty (The United States of America is the only country strong enough to go it alone.)

Issa was on C-SPAN this morning. One caller was hard to understand but seemed to be uttering a string of profanity so they ignored him and went to the next one, who accused Issa of following the talking points of his Fuehrer in the White House...so Issa went after him over that (he said he was an Arab-American raised in a Jewish neighborhood so he found that kind of language especially offensive when used of anyone other than the real Nazis).

Issa pointed out that the left-wing claim that Lam was fired to protect a Republican Congressman, Jerry Lewis, is false because that would fall in another US attorney's district, not Lam's.

6 posted on 03/28/2007 12:46:14 PM PDT by eureka! (The 'rats have made their choice in the WOT and honest history will not be kind...)

"...she will take the Fifth Amendment..."

Sharp stick in the eye of the Congressional Bafoons. Bravo!!

Carol Lam was a political appointee and as such subject to the whims of politics. The Dems would have done the same for any and all republicans.
Lam is just a whiner who needs to move on with her life.

Does anyone know how many U.S. District Attorneys were let go by Clinton during his eight years, not counting the 93 he eliminated upon taking office? I think its around 30 to 40! That is a good follow up point to hit the critics with!

. When the time came to pick a new U.S. attorney, LaBella was passed over. An interim prosecutor, never confirmed by the Senate, took the job.

Ummmmm ... I thought this couldn't have been done till the PA became law? ... or so claimed DiFI

Sampson’s appearance comes a few days after word that another top Justice Department aide, Monica Goodling, has informed the committee that she will take the Fifth Amendment against self-incrimination if she is called to testify. In a statement, Goodling’s lawyer blasted committee Democrats, charging that chairman Sen. Patrick Leahy and others “have already publicly drawn conclusions about the conduct under investigation.

I wouldn't talk to this committee .. they (Dems) have already made up their minds

Everyone from the Bush Admin is guilty according to the Dems

I wondered about that also...glad I am not the only one.

Re: Sampson...I don't know why he is testifying...McNulty SHOULD be the one...since he is such good friends with SCHUMER!!!

This whole thing stinks of a set up...from the START because of McNulty/Schumer.

From the article, I got the impression that her appointment wasn't so much political - she was an independent - but rather more of an affirmative action appointment - she was hired because she was an Asian female.

13 posted on 03/28/2007 3:44:57 PM PDT by Enterprise (I can't talk about liberals anymore because some of the words will get me sent to rehab.)

I hate to say this but this all could have been avoided. President Bush should have fired ALL political appointees. All of them. Yet he kept on most of them.

Over his admin this has come back to harm him and his administration. A large mistake the Dems never seems to make.

I don't think it matters. The democRats would have bitched regardless. Presiden't Bush can do nothing right for them and unfortunately neither for some here on FR

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