DOJ Threatened Retaliation Against Fired Attorneys

A Justice Department official threatened to take the "gloves off" and "retaliate" against the eight United States attorneys who were abruptly removed from their posts if they continued to speak publicly about the circumstances behind their dismissals, according to an email released late Monday sent to the fired prosecutors by one of their colleagues.

The email, a portion of which had been discussed during a Senate judiciary hearing two weeks ago, was written by H.E. "Bud" Cummins on February 20 and sent to US Attorneys Dan Bogden, John McKay, Carol Lam, David Iglesias and Paul Charlton immediately after Cummins had a somewhat heated exchange with Mike Elston, a top aide to Deputy Attorney General Paul McNulty, about comments Cummins had made that were published in the Washington Post on February 18.

According to the Post story, Cummins had taken issue with statements made by Justice Department officials that the reasons behind his termination, and those of his colleagues, was the result of poor job performance. Cummins, the former US attorney in Little Rock, Arkansas, was replaced by an aide to White House Deputy Chief of Staff Karl Rove.

"They're entitled to make these changes for any reason or no reason or even for an idiotic reason," Cummins told the Post. "But if they are trying to suggest that people have inferior performance to hide whatever their true agenda is, that is wrong. They should retract those statements."

Two days later in an email to other fired prosecutors, Cummins wrote that he had spoken with Elston, and Elston told him that if Justice Department officials "feel like any of us intend to continue to offer quotes to the press, or organize behind the scenes Congressional pressure, then they would feel forced to somehow pull their gloves off and offer public criticisms to defend their actions more fully."

"I was tempted to challenge him," Cummins wrote in the email. "And say something movie-like such as 'Are you threatening ME??? [sic].'"

Cummins wrote that he stopped short of calling Elston and other officials in the Justice Department "liars" for their disingenuous statements to lawmakers that the US attorneys were removed because of their poor job performance and inability to prosecute immigration and obscenity cases.

Elston "mentioned my quote [in the February 20 edition of The Washington Post] and I didn't apologize for it, told him it was true and that everyone involved should agree with the truth of my statement, and pointed out to him that I stopped short of calling them liars and merely said that IF [sic] they were doing as alleged they should retract," Cummins wrote in the email. "I also made it a point to tell him that all of us have turned down multiple invitations to testify. He reacted quite a bit to the idea of anyone voluntarily testifying and it seemed clear that [the Justice Department] would see that as a major escalation of the conflict meriting some kind of unspecified form of retaliation."

The issue of lackluster job performance by the fired prosecutors has emerged as the Justice Department's central theme and is seen as the rationale for dismissing the eight US attorneys, according to sworn testimony before Congress by Associate Attorney General William Moschella, and previous public statements by spokespeople in the Justice Department. However, documents released over the past two months show that the US attorneys had positive job evaluations. In fact, documents released late Monday by the Justice Department illustrate that the US attorneys who were pushed out of their jobs were told by department officials that they were doing a good job, but that President Bush wanted to give other candidates an opportunity to serve as US attorneys.

According to one document dated November 7, 2006 and titled "Plan for Replacing Certain US Attorneys," Mike Battle, who oversaw all 93 US attorneys before resigning his position earlier this month, was enlisted to contact the US attorneys to be replaced "on or about November 8-10 [2006]."

"Step 1": Battle informs the US attorneys as follows:

"What are your plans for continued service as US attorney? The administration is grateful for your service as US attorney, but has determined to give someone else the opportunity to serve as US attorney in your district for the final two years of the administration. We will work with you to make sure that there is a smooth transition, but intend to have a new interim or acting US attorney in place by January 1 [2007]."

The document then goes on to describe a "Step 2," which was to have White House Deputy Counsel Bill Kelley phone senators whose states will be affected by the US attorney purge because the Bush administration wants to give someone else the chance to serve out the remainder of the president's term. However, if the lawmakers "push" for more information about the firings, Kelley is told to inform the senators that each termination "is based on a thorough review of US attorneys' performance."

But that line of reasoning was not communicated to the US attorneys who were fired. Indeed, after watching Associate Attorney General William Moschella testify before Congress on March 6 about the purge, Margaret Chiara, the US attorney in Michigan, was surprised to learn that she was one of the eight US attorneys who were fired for allegedly performing poorly during their tenures in office.

"Today's Congressional events make clear that I am, indeed, among the 'USA-8,'" Chiara wrote in an email to Deputy Attorney General Paul McNulty. "Shortly after his opening statement, but before citing the perceived deficiencies of my former colleagues, Will Moschella stated that the two United States attorneys not present [before Congress] were dismissed because of management problems. Apparently, [former US Attorney for Northern District of California] Kevin Ryan (whom I do not know) and I share the same reason for termination. [McNulty aide] Michael Elston told me on more than one occasion that the rationale for dismissal was on a continuum of sorts, and that I am on the de minimus end after [Las Vegas US Attorney] Dan Bogden. It is abundantly clear that this regrettable situation could have been better managed if the reasons for the dismissals were initially communicated to the affected United States attorneys."

As a final note in her email to McNulty, Chiara asked the deputy attorney general, "So, I now need to know what is the management problem to which Mr. Moschella referred?"

Jason Leopold is a former Los Angeles bureau chief for Dow Jones Newswire. He has written over 2,000 stories on the California energy crisis and received the Dow Jones Journalist of the Year Award in 2001 for his coverage on the issue as well as a Project Censored award in 2004. Leopold also reported extensively on Enron's downfall and was the first journalist to land an interview with former Enron president Jeffrey Skilling following Enron's bankruptcy filing in December 2001. Leopold has appeared on CNBC and National Public Radio as an expert on energy policy and has also been the keynote speaker at more than two dozen energy industry conferences around the country.

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