Sampson admits he suggested firing Patrick Fitzgerald
 In a Senate Judiciary Committee hearing today, witness D. Kyle Sampson, the former chief of staff to Attorney General Alberto Gonzales, admitted that he had suggested removing Patrick Fitzgerald from his position as a US Attorney in the Northern District of Illinois while Fitzgerald was still working as the Special Prosecutor in the case involving former White House aide I. Lewis "Scooter" Libby.
In an exchange with Senator Richard Durbin (D-IL), the Senator asked Sampson if he had ever recommended the removal of Fitzgerald from office.
"In one meeting, I raised Patrick Fitzgerald, and immediately after I did it, I regretted it, I knew it was the wrong thing to do, it was inappropriate, and [Harriet] Miers and [Bill] Kelly said nothing, they just looked at me.
Durbin then asked how they reacted.
"They just looked at me like I had said something totally inappropriate," Sampson explained.
When Durbin asked why he had floated the idea Sampson said, "Maybe to get a reaction out of them." He then quickly added, "I know that I never seriously considered putting him on a list, and he never did get put on a list."
Durbin had earlier quizzed Sampson on why had never given Fitzgerald a favorable evaluation, in spite of his admission in the hearing that Fitzgerald was a "strong, effective" US Attorney.
"It sounds like you didn't want to go out on a limb and say something positive about him," Durbin argued.
A video of the exchange is available at TPM Muckraker, and a transcript of the Fitgerald exchange can be read below.
Specter says Justice Department abused authority
Senator Arlen Specter, the committee's ranking Republican, strongly quizzed Sampson on the PATRIOT Act amendment that allowed the White House to indefinitely appoint interim US Attorneys. Sampson admitted that his suggestion that the White House "run out the clock" with the measure was not in good faith.
"It would be an abuse of the Attorney General's appointment authority," Sampson agreed.
Sampson also admitted that he had given special consideration to circumventing the Senate's ability to confirm US Attorneys, specifically in the case of the Arkansas District, and that the Attorney General had rejected the idea of using the authority broadly in late December or early January.
However, Sampson claimed he was not aware of the measure prior to its passage in the USA PATRIOT Act.
Senator Leahy then joked that the amendment only appeared to have one real effect.
"It brought about bipartisan unity in the Senate and the House," he said, remarking on the near unanimity to amend the PATRIOT Act and strip the president of the open-ended interim appointment authority.
Kennedy slams 'casual' approach to firing Attorneys
Earlier in the hearing, prior to the brief suspension of its proceedings due to a Republican objection, Senator Edward Kennedy (D-MA) had questioned Sampson on the meetings held to select and fire US Attorneys.
Sampson admitted that it came up "in the Judicial Selection Committee only every once in a while" and, he added, sometimes "after the meeting in Ms. Miers office, or just off to the side of the Roosevelt Room."
Kennedy didn't like the explanation.
"This was a matter of importance that was treated very casually," he said.
Both Kennedy and Senator Chuck Schumer (D-NY) also asked why Sampson wrote in an e-mail that the appointment of Tim Griffin as interim US Attorney in Arkansas was important to top presidential adviser Karl Rove and White House Counsel Harriet Miers, when he said they had never told him this themselves.
"It was based on an assumption," he said, because "Sarah Taylor and Scott Jennings (aides to Rove and Miers) had expressed interest."
Names new attorney considered for firing
Senator Schumer later asked Sampson to name US Attorneys who were added to and later removed from a list of those to be replaced.
At first, Sampson hesitated to respond.
"I would hesitate to do that in this open setting," he said. "If you insist I will do that."
Senator Specter agreed it would be appropriate for Sampson to name any names he was certain of, and he could only name one: Anna Mills Wagoner, the US Attorney for the Middle District of North Carolina. But she had been removed from the list on Monica Goodling's suggestions.
"She was aware of a good PFM program, and had done good work in organizing a game conference," Sampson said.
Subsequently, Sampson said there was a list of three more US Attorneys who had been removed from the list, but he had not reviewed unredacted documents and was uncertain which were the three. He agreed he would attempt to get an answer for Senator Schumer.
Reflecting on the ad hoc nature of Sampson's list-keeping, Schumer criticized the Justice Department strongly.
"It's a pretty severe indictment of the Justice Department you served," the New York senator said. "It seems sort of ad hoc, it seems records weren't kept, it seems the story keeps changing."
Former boss says he should still have his job
With the hearing winding down, Sampson had a third exchange with his former boss, Senator Orrin Hatch. Hatch praised Sampson for speaking so openly.
"I want to thank you," he said. "You've been forthright and we should thank you for that."
Hatch also questioned Sampson's decision to resign from his post in the Justice Department.
"You've owned up to your mistakes, including by resigning," he said, adding, "which I don't necessarily think you needed to do."
Sen. Schumer subsequently discussed whether or not Sampson felt he had any regrets. The witness agreed that he would not have recommended the firing of US Attorney for New Mexico David Iglesias or pursued the general course it took.
"In hindsight, I wish the department hadn't gone down this road, and I regret my role in it, and that's why I resigned," he said.
At the end of the hearing, Sen. Specter joked that the hearing had to come to an end.
"We have now violated the Eighth Amendment's violation of cruel and unusual punishment," the Pennsylvania Republican said.
He then pointed to the need to hear from Attorney General Alberto Gonzales.
"We will hear from him," Specter noted, and suggest that no judgments should be made until "he has his day in court."
Transcript of testimony regarding Fitzgerald:
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SEN. RICHARD DURBIN (D-IL): Thanks, Mr. Chairman.
Thank you. Thank you for testifying. I mean that sincerely. I appreciate your coming forward to answer these questions, and I read your opening statement in which you outlined what you considered to be reasonable standards to judge the performance of a U.S. attorney, saying that presidential appointees are judged not only professional skills, but management abilities, relationships with law enforcement and government leaders, support for the priorities of the president and the attorney general.
Then you go on to say, if he or she is unable to maintain the morale and motivation of line assistance, is resistant to the president's or attorney general's constitutional authority, loses the trust and confidence of important local constituencies in law enforcement or government, or fails to contribute to the important non-prosecutorial activities -- these are all elements that you think are reasonable in judging the performance.
Now, you produced or the department produced for this hearing e- mails, one dated March 2nd, 2005, in which you had sent to Harriet Miers a template or chart of attorneys -- U.S. attorneys, and they were given three basic grades, as I understand it: strike out, removing weak U.S. attorneys; bold, recommending that you keep strong U.S. attorneys; and a third category, no recommendation, have not distinguished themselves either positively or negatively.
Subsequent to producing that document, administrative officials confirmed in the press that U.S. Attorney Patrick Fitzgerald of the Northern District of Illinois had been characterized in this March 2005 memo to Harriet Miers as a U.S. attorney who had not distinguished himself neither positive nor negative.
I want to explore that for a moment, basically from two different perspectives. First, the perspective of The New York Times this morning that talks about the Wednesday meeting, talks specifically about Karl Rove's concerns over Patrick Fitzgerald as the Northern District U.S. attorney; and secondly, from the perspective of the fact that I was involved in his selection. I had to sign a blue slip for him to become the U.S. attorney, and I did after learning that he had been the lead prosecutor in the World Trade Center bombing in 1993 and speaking to him personally and then hearing from his colleagues that he was absolutely one of the best -- no political agenda, a real prosecutor's prosecutor.
And remembering that in December 2003, when Attorney General Ashcroft recused himself from the investigation involving Robert Novak's disclosures, that it was James Comey, the deputy attorney general, who picked Patrick Fitzgerald, among all others, to be the special prosecutor in that case.
So I'd like to ask you, by what basis did you come to the conclusion in your memo that Patrick Fitzgerald of the Northern District of Illinois had not distinguished himself?
MR. SAMPSON: Senator, Pat Fitzgerald is widely viewed within the Department of Justice as being a very strong U.S. attorney, a strong manager; he's a skillful lawyer, and he's, by all accounts, a very strong United States attorney.
That e-mail that I sent to Harriet Miers early in March was one of the first -- I believe sort of the first time that I had ever aggregated information and put together a list and shared it with the White House. I knew that Mr. Fitzgerald was handling a very sensitive case, and really didn't want to rate him one way or the other.
SEN. DURBIN: So you're saying that you were neutral in terms of his performance because he was involved in a controversial case?
MR. SAMPSON: Yes, Senator. To the best of my recollection, I didn't rate him in any way, and after consulting with folks at the Department of Justice to get their views about the relevant strengths and weaknesses of other U.S. attorneys, I did not rate him. I knew that he was handling a sensitive case and didn't want to rate him either way.
SEN. DURBIN: I have to pursue this. If the deputy attorney general thought so highly of him as to choose him to prosecute that controversial case, you felt that you couldn't communicate to the White House a feeling as to whether he was a strong or weak U.S. attorney?
MR. SAMPSON: Senator, what I remember is that that first list of U.S. attorneys who might be considered for resignation after their four-year terms had expired was a very early, preliminary draft. And I don't remember rating Mr. Fitzgerald one way or the other. And I believe I probably did that because I didn't want to go anywhere near that. I knew he was handling a very sensitive case, an investigation that included the White House. I was communicating a list to the White House. And so I just didn't touch it.
SEN. DURBIN: So were you concerned that if you gave him a positive rating that the White House might look unkindly on that designation?
MR. SAMPSON: I don't remember feeling that way.
SEN. DURBIN: Well, I'm troubled by this because is there anything that you knew about him to suggest that he wasn't an effective, strong U.S. attorney?
MR. SAMPSON: No. I believe he is a strong, effective U.S. attorney. And I don't remember ever hearing any contrary reporting from anyone within the Justice Department, or anywhere else, for that matter.
SEN. DURBIN: You can see where it leads to a conclusion that because he's involved in a case that necessarily involves people who work in the White House, that the Department of Justice, at least from your point of view, didn't want to go out on a limb and say something positive about him.
MR. SAMPSON: To the best of my recollection, I didn't want to say anything at all about him.
SEN. DURBIN: Were you ever party to any conversation about the removal of Patrick Fitzgerald from his position as Northern District U.S. attorney?
MR. SAMPSON: I remember on one occasion in 2006 in discussing the removal of U.S. attorneys -- or the process of considering some U.S. attorneys that might be asked to resign, that I was speaking with Harriet Miers and Bill Kelley and I raised Pat Fitzgerald. And immediately after I did it, I regretted it. I thought, I knew that it was the wrong thing to do. I knew that it was inappropriate. And I remember at the time that Ms. Miers and Bill Kelley said nothing; they just looked at me. And I immediately regretted it and I withdrew it at the time, and I regret it now.
SEN. DURBIN: Do you recall what you said at the time about Patrick Fitzgerald?
MR. SAMPSON: I said Patrick Fitzgerald could be added to this list.
SEN. DURBIN: And there was no response?
MR. SAMPSON: No. They looked at me like I had said something totally inappropriate, and I had.
SEN. DURBIN: Why did you say it? Why did you recommend or at least suggest that he be removed as U.S. attorney?
MR. SAMPSON: I'm not sure. I think -- I don't remember. I think it was maybe to get a reaction from them. I don't think that I ever -- I know that I never seriously considered putting Pat Fitzgerald on a list, and he never did appear on a list.
SEN. DURBIN: It's interesting what has happened with the Bush Department of Justice, or the Gonzales Department of Justice recently. There was a time when senators would suggest one name to the Department of Justice. And that was referred to in this New York Times piece, that Karl Rove was quoted as saying he was upset that my former colleague, Peter Fitzgerald, only recommended one name, Patrick Fitzgerald, in this case. Now it seems to be the custom and practice that multiple names are suggested. In Illinois, former Speaker Hastert has been told to submit at least three names.
Can you tell me why that practice has changed?
MR. SAMPSON: I remember that at the beginning of the administration the then-counsel to the president, Alberto Gonzales -- this is to the best of my recollection -- I believe that he sent a letter to members of the Senate with regard to judicial appointments and perhaps also U.S. attorney and U.S. marshal appointments, requesting that senators provide three names for each vacancy. And I know that that was the general practice that the administration has followed.
SEN. DURBIN: One last question. Were there any conversations between you or conversations you overheard involving Karl Rove and the appointment of Patrick Fitzgerald as the U.S. attorney for the Northern District of Illinois?
MR. SAMPSON: Not that I remember. I really don't think so.
SEN. DURBIN: Thank you very much.
Thank you, Mr. Chairman.
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SEN. CHARLES SCHUMER (D-NY): Thank you, Mr. Chairman. I'm glad we're back and the move to not let us continue has been withdrawn.
I'd like to first follow on the question that Senator Durbin touched on, and that is, as you told him, your original suggestion was that Mr. Fitzgerald, U.S. attorney from Chicago -- I guess that's Northern District of Illinois -- should be fired.
Now that was in 2005 you suggested that?
MR. SAMPSON: I believe it was in 2006, but I don't remember specifically. And as I said to Senator Durbin, it was -- a piece of bad judgment on my behalf to even raise it. I regret it.
SEN. SCHUMER: Right. And you realize that if he were fired as U.S. attorney, the general consensus is he couldn't continue as special prosecutor?
MR. SAMPSON: I don't know that as a matter of protocol.
SEN. SCHUMER: That is.
MR. SAMPSON: But I'm not sure.
SEN. SCHUMER: That is what I've inquired in a number of places about that issue, and that's what most people think.
Now, it's a little confounding to hear that you suggested that, and as I said, I respect your coming here and coming here voluntarily. But it's really a hair-brained scheme that would have just blown up even more than the firing of the U.S. attorneys has in the administration's face. I guess you see that now.
MR. SAMPSON: Frankly, Senator, I saw that the second the words crossed my head.
SEN. SCHUMER: Who did you suggest it to?
MR. SAMPSON: Harriet Miers and Bill Kelley.
SEN. SCHUMER: Okay. Anyone else?
MR. SAMPSON: No.
SEN. SCHUMER: And despite that, they kept you in charge or put you -- did Attorney General Gonzales ever know that you suggested that?
MR. SAMPSON: No, I don't think so.
SEN. SCHUMER: Okay. Did Harriet Miers remain comfortable with your supervising the firing of U.S. attorneys after you made such a suggestion?
MR. SAMPSON: I don't know.
SEN. SCHUMER: Did anyone suggest that maybe after that suggestion you shouldn't be in charge of firing U.S. attorneys?
MR. SAMPSON: I don't remember anyone raising that.
SEN. SCHUMER: Yeah, because I have to tell you -- and it relates to the issue we're talking about -- here is a man doing an investigation. Karl Rove had been before the grand jury, I guess, the previous -- in October of 2004. This is a major investigation, and you're suggesting that the chief prosecutor be fired. It leads me to think -- first, it makes you think, well, if it's okay to fire Fitzgerald, who's in the middle of a major investigation, maybe it's okay to fire some of these others. But, second, it does make me question your suitability for this job.
Is that an absurd conclusion?
MR. SAMPSON: As I stated previously, Senator, it was a lapse, and I regretted the moment I said it. And to my recollection, I even said, I withdraw that; that was inappropriate.
SEN. SCHUMER: Would the same thought process that made you realize suggesting firing Fitzgerald maybe come to you with the firing of others for whatever reason who were doing other investigations, such as Carol Lam in San Diego?
MR. SAMPSON: During this process, I never associated asking these U.S. attorneys to resign with a particular investigation or prosecution that they were handling.
SEN. SCHUMER: Then, I take it --
MR. SAMPSON: And to the best of my recollection, I never associated those things in my mind.
SEN. SCHUMER: And I take --
MR. SAMPSON: I was aggregating information from different people at the department, but in my own mind, I -- that would be inappropriate.
Public corruption cases were important to the department, and didn't spare Republicans. And that would be wrong, and I don't remember ever associating those things in my mind.
SEN. SCHUMER: I understand that. You've said that before. But didn't you realize when you suggested even the thought of suggesting Fitzgerald be fired that it would at least be perceived as trying to stop a major investigation? It's sort of plain as the nose on one's face.
MR. SAMPSON: I don't know what else to say, Senator. I've expressed my regret for that.
SEN. SCHUMER: Okay.
....
SEN. SCHUMER: Thank you, Mr. Chairman.
"On review, it appears that certain statements in the February 23rd letter are contradicted" -- their words, not mine -- "by department documents included in our production, in connection with the committee's review. We sincerely regret any inaccuracy." Seems that something isn't right.
Let me just ask you one other thing. Did Karl Rove have anything to do with your suggestion that Fitzgerald be fired?
MR. SAMPSON: I don't remember anything like that. I don't think so. I don't remember ever speaking --
SEN. SCHUMER: Can you sort of search your memory and be sure of that?
MR. SAMPSON: I don't -- Senator, I just want to answer -- to the best of my recollection, I don't remember ever speaking to Karl Rove about anything related to Patrick --
SEN. SCHUMER: How about to any of his people who worked in his office or worked for him?
MR. SAMPSON: I don't remember any such conversation.
SEN. SCHUMER: Okay. Is it possible? Because you're not ruling it out.
MR. SAMPSON: To the best of my recollection, no, I don't remember that.
SEN. SCHUMER: Well, I don't remember it, or it's not possible?
MR. SAMPSON: I don't think it happened.
SEN. SCHUMER: You don't think it happened would mean there's a chance that it's possible, correct?
MR. SAMPSON: Senator, I don't think it happened. I don't remember any such conversation.
SEN. SCHUMER: Okay, but you're not willing to say unequivocally not?
MR. SAMPSON: I don't remember any such conversation.
SEN. SCHUMER: Thank you, Mr. Chairman.
SEN. LEAHY: Thank you.
....
SEN. SPECTER: You're entirely welcome, Senator Feinstein.
On the issue about the appointment of Mr. Fitzgerald to be special counsel on the Libby matter, I think it ought to be noted that while Mr. Fitzgerald was appointed in his capacity as an employee of the Department of Justice by virtue of being a United States attorney, that he could have been appointed under the regulations 28 -- code of federal regulations section 600.3 says the special counsel shall be selected from outside the United States government, so that terminating him as U.S. attorney would not necessarily have terminated him as special counsel. He could have been appointed to carry on the duties in that capacity. I just want to clarify the alternative procedure here. There's no suggestion --
MR. SAMPSON: Senator, to my -- I'm sorry -- to my knowledge --
SEN. SPECTER: There was no question pending for you, Mr. Sampson. You'd be well-advised not to answer when you don't have to.
MR. SAMPSON: Thank you, Senator.
SEN. SPECTER: You might be well-advised not to answer when you have to --
MR. SAMPSON: Thank you, sir. (Laughter.)
SEN. SPECTER: -- but not when you don't -- when you don't have to.
We heard what you said about your thought of termination, but there's no suggestion that there was a serious consideration to terminating him, asking him to resign. But I just want to have the record straight on the alternative procedure.
I'm very much concerned, Mr. Sampson, about this issue of circumventing the United States Senate, and I'm concerned about it for a couple of reasons. And one reason is that senators traditionally have had substantial input on who the United States attorney is, and there has to be a blue slip signed if it's somebody not in the party, as Senator Durbin commented about signing the blue slip for Mr. Fitzpatrick (sic/Fitzgerald). And if you're the same party, the White House looks to senators of the party to make recommendations -- it's up to the president, under the Constitution -- but to make recommendations. And I'm very much concerned about what happened with the provision of the Patriots (sic) Act. And it was there for three months and nobody knew about it, but when I see a picture unfolding that there was a conscious effort by the Department of Justice to utilize that provision to circumvent the Senate, then I'm really intensely interested in it and, frankly, feel sort of victimized by it, especially when you say that the process was used in bad faith.
Now, there's another e-mail -- there are a lot of e-mails to go into. It may be that Senator Schumer will run out of questions before I run out of e-mails. Who knows?
SEN. SCHUMER: We shall see.
SEN. SPECTER: Who knows how long C-SPAN3 can carry this? Who knows if anybody's watching C-SPAN3? We may boost -- boosting the ratings of Fox with all of this talk.
But there is an e-mail dated November 15th from you to Harriet Miers, whom we talked about before. And you enclose in it your, quote, "plan" for replacing certain United States attorneys. And you have in this plan a reference to "we will work with you to make sure there is a smooth transition, but intend to have a new acting or interim U.S. attorney in place by the end of the year." Well, the acting U.S. attorney would be under the Vacancies Act, but the interim U.S. attorney would be under the Patriot Act.
And then on step four you have, quote, "evaluation and selection of interim candidates." "During November/December 2006, the Department of Justice, in consultation with the Office of the Counsel to the President" -- that's Ms. Miers, of course -- "evaluates and selects candidates for attorney general appointment or candidates who may become acting U.S. attorneys for operation of law, to serve upon the resignation of above-listed U.S. attorneys."
Now, it is true that you have on step five the selection, nomination and appointment of U.S. attorneys in the regular course. But we already know from your e-mail and from your admission that you wanted to run out the clock and run out the balance of the president's term.
But the question I have for you here -- doesn't your e-mail of November 15th to Ms. Miers and specifying her role in the evaluation and selection of interim candidates raise a pretty clear inference that it was more than just a staff recommendation; that there had been, at a minimum, acquiescence in this process to use the Patriot Act to circumvent the Senate?
MR. SAMPSON: Senator, I don't remember it that way. The e-mail that I sent on December 19th was with regard to Griffin only.
SEN. SPECTER: No, I'm on the e-mail of November 15th, which references your plan for replacing certain U.S. attorneys, where you talk about interim attorneys. And this e-mail goes to Ms. Miers, White House counsel, and you're talking about her role.
MR. SAMPSON: I guess it would be helpful to me if I could look at that document as you question me about it.
SEN. SPECTER: Well, here it comes.
MR. SAMPSON: Thank you.
SEN. SPECTER: Mr. Chairman, I'd ask that the clock be stopped.
SEN. SCHUMER: The clock is stopped.
SEN. SPECTER: This may be the most refreshing and appreciated moment of this entire proceeding.
SEN. SCHUMER: Enjoy it while it lasts. The clock now resumes.
SEN. SPECTER: No, no, he's reading the document. Stop the clock.
SEN. SCHUMER: (Chuckles.)
SEN. SPECTER: You're not going to run out the clock like they're doing, are you?
MR. SAMPSON: Senator, no, I --
SEN. SCHUMER: Senator Specter, I've let you go beyond the 10 minutes and seven minutes before, and I'll do it again.
MR. SAMPSON: (Chuckles.)
SEN. SCHUMER: So don't worry.
MR. SAMPSON: Senator, I don't remember --
SEN. SPECTER: No, I don't want largess. I want the clock stopped. (Chuckles.)
Go ahead
MR. SAMPSON: I don't remember serious consideration ever being given to what I've described as a bad idea by staff to use the attorney general -- to have the attorney general appoint interim United States attorneys and then not consult with the Senate over a candidate who then could be nominated and confirmed.
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