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Former Deputy Attorney General James Comey just shot down one of the Justice Department's talking points for why U.S. Atttorney for San Diego Carol Lam was fired.

The department has repeatedly touted Lam's relatively low gun prosecution numbers as one of the reasons for her firing. DoJ official William Moschella told the House Judiciary Committee last month that Lam "only beat out Guam and the Virgin Islands" in terms of gun prosecutons -- leaving the impression that Lam had fallen down on the job.

But as Comey testified today, such numbers "tell you nothing" about how the U.S. attorney is doing. Comey cited his own experience as U.S. Attorney for Manhattan, where his own office's numbers had dipped due to the fact that the local prosecutor was handling a large number of gun prosecutions, making it unnecessary for his own office to do so -- which was Lam's case with the district attorney in San Diego.



As Lam has pointed out, the violent crime rate in San Diego fell to its lowest point in 25 years while she was U.S. attorney there.

When Kyle Sampson asked former Deputy Attorney General James Comey in late February of 2005 which U.S. attorneys he thought were "weak" and should be replaced, Comey replied with a list of names. But Comey testified today that his list was completely different from those who were ultimately fired -- save one name. That was Kevin Ryan, the former U.S. Attorney for San Francisco, who was the only of the fired U.S. attorneys to have indisputably had real performance issues.



There were a couple of other telling details in Comey's early remarks. Although Sampson told congressional investigators that he'd informed Comey that the idea to identify "weak" U.S. attorneys came from the White House, Comey testified today that he was "quite certain that [Sampson] didn't mention the White House."

Comey added that he didn't even know that this was a process -- he just thought that Sampson had made an offhand remark. And Comey was completely ignorant of Kyle Sampson's list of U.S. attorneys to be removed that Sampson drafted at around the same time. On Sampson's list, drafted in late February or very early March of that year, Kevin Ryan was rated as a "strong" U.S. attorney.

In other words, Sampson seems to have intentionally ignored all of Comey's recommendations as to who were the weak U.S. attorneys -- and kept Comey, the #2 at the DoJ, ignorant that Sampson and the White House were targeting certain U.S. attorneys with the goal of firing them.

A House Judiciary subcommittee is holding a hearing with James Comey, the former deputy attorney general, right now.

We'll you bringing you updates on what Comey says, but if you'd like to watch, you can catch it on C-Span 3 or on the committee's website.

Comey is likely to shed light on the early stages of the U.S. attorney firing process -- and provide a striking contrast with the current DoJ leadership's appraisal of U.S. attorney performance.

Administration Pulls Back on Surveillance Agreement "Senior Bush administration officials told Congress on Tuesday that they could not pledge that the administration would continue to seek warrants from a secret court for a domestic wiretapping program, as it agreed to do in January. Rather, they argued that the president had the constitutional authority to decide for himself whether to conduct surveillance without warrants." (NY Times)

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The morning papers provide a host of further detail on the Justice Department's investigation of Monica Goodling.

First, we'll start with the new facts about the investigation, and then turn to the burning question of whether this might compromise Congress' offer of immunity to Goodling.

The department's inspector general launched an investigation into the U.S. attorney firings back in March. Not long after that, Chuck Rosenberg, the U.S. Attorney for eastern Virginia and Kyle Sampson's replacement as Gonzales' chief of staff, requested that the inspector general look into Goodling's hiring of entry-level assistant U.S. attorneys. Rosenberg has since gone back to being a full-time U.S.A.

The accusation focuses on Goodling's meddling in a particular group of hires: entry-level attorneys working for acting or interim U.S. attorneys -- in other words, U.S.A.s who had not been confirmed by the Senate. The New York Times explains:

...when an interim United States attorney is in place, one who has not been confirmed by the Senate, he or she must seek the approval of officials at department headquarters [to hire attorneys], a rule that perhaps allowed Ms. Goodling to investigate the political backgrounds of the applicants.


As the Justice Department has underlined, if Goodling was checking to see if these applicants were Republicans before hiring them, that would be against the law.

Now, there's an important point that needs to be made here. And that is that Gonzales had signed an order in March of last year that gave Goodling and Sampson the power to hire and fire interim U.S. attorneys. And it's already been conclusively shown that Goodling played a major hand in the firing of the eight Senate-confirmed U.S. attorneys last December. So if these allegations about Goodling's involvement in the hiring of entry-level prosecutors are correct, it looks like Goodling was working to completely overhaul certain U.S. attorney offices -- replacing the U.S. attorney with an administration loyalist and staffing it with entry-level loyalists. Top to bottom.

On to immunity. The Los Angeles Times puts it most simply:

...the Justice Department is unlikely to support immunity while its own probe is pending. The issue of immunity is ultimately decided by a federal judge. Justice Department officials are supposed to weigh in with a recommendation next week.


Here's how Congress' offer of immunity works: the Justice Department has a period of time, ten days, to decide whether the immunity might compromise a potential criminal investigation (that deadline is Monday, but could be extended). The DoJ makes a recommendation -- if the DoJ decides that it will, then Congress has to reconsider its offer. Congress could still go forward at that point, but the federal court in D.C. makes the final determination. It would seem to be highly unlikely that Goodling would still get her immunity with this probe ongoing.

Goodling's attorney told The Washington Post that she would testify if given immunity. But that would seem to be a big "if" now.

Suspicion of the timing of this revelation is understandable. As the Justice Department's liaison to the White House, Goodling likely has a lot to tell -- and Congress may never hear it.

Note: The Wall Street Journal adds some insight into what the Justice Department deems newsworthy:

In mid-March, The Wall Street Journal sought information from the Justice Department on Ms. Goodling's role in the selection of [entry-level assistant U.S. attorneys]. The department turned down a request for expedited handling of the Journal's query, citing that it "does not believe the specific topic of your request is the subject of widespread and exceptional media interest."

Deputy Attorney General Paul McNulty is supposedly the #2 at the Department of Justice, acting essentially as the COO to Alberto Gonzales' CEO. He's supposed to be the career guy who gets his hands dirty, who's really running the department.

But listen to the way he has reportedly described his role in the U.S. Attorney firings. From The Las Vegas Sun:

A Justice Department official who had been uncomfortable about firing U.S. Attorney Daniel Bogden now regrets he could not save the Nevadan's job when Justice purged eight prosecutors last year.

In a closed-door interview with congressional investigators last week, Deputy Attorney General Paul McNulty said the firing weighs on him heavily, according to an aide familiar with the transcript of McNulty's comments. McNulty said he succeeded in sparing another U.S. attorney whose identity has not been revealed....

McNulty told investigators he did not see the list [of U.S. attorneys to be fired] until October, two months before the attorneys were fired....

McNulty asked during the interview last week to speak to the whole Bogden affair. McNulty told investigators he had hoped for some explanation for Bogden's inclusion on the list because he saw no apparent reason to fire him.

He said he was told that Justice wanted to bring in someone with more energy for Nevada, a fast-growing district.


He "was told that Justice wanted to bring in someone with more energy?" Well, we know that Alberto Gonzales didn't know anything about why Bogden was fired. And Kyle Sampson, the keeper of the list, claims not to know why Bogden made the list either. So who, in this equation, is "Justice?" Who was calling the shots? It certainly wasn't McNulty.

How deep, how wide did the politicization at the Justice Department go?

From the AP:

The Justice Department is investigating whether its former White House liaison used political affiliation in deciding who to hire as entry-level prosecutors in U.S. attorneys' offices around the country, The Associated Press has learned.

Doing so is a violation of federal law.

The inquiry involving Monica Goodling, the former counsel and White House liaison for Attorney General Alberto Gonzales, raises new concerns that politics might have cast a shadow over the independence of trial prosecutors who enforce U.S. laws.

Justice spokesman Dean Boyd confirmed Wednesday that the department's inspector general and Office of Professional Responsibility were investigating Goodling's role in hiring career attorneys — an unusual responsibility for her to take.

Goodling "may have taken prohibited considerations into account during such review," Boyd told the AP. "Whether or not the allegation is true is currently the subject of the OIG/OPR investigation."


Will this affect Congress' offer of immunity to Goodling?

Update: More details from an AP update:

The investigation of Goodling appears to focus on her role in reviewing applications for trial prosecutors for offices headed by temporary or acting U.S. attorneys who had not been confirmed by the Senate. That responsibility is usually handled by the Justice Department's executive office of U.S. attorneys.

Goodling had served in the executive U.S. attorney's office until she was transferred to serve as Gonzales' counsel and primary White House contact. The internal Justice investigation concerns Goodling's review of job applicants only after she joined the attorney general's office, the government officials said.

A bipartisan group of senators on the Senate Judiciary Committee wrote to Alberto Gonzales today, demanding a copy of the secret order Gonzales signed in March of 2006. The order, the existence of which was first reported by Murray Waas, gave authority over the hiring and firing of most political employees of the Justice Department to Gonzales' chief of staff Kyle Sampson and White House liaison Monica Goodling.

The senators also wondered why the order was not among the thousands of pages turned over to Congress over the past months -- documents that were relevant to the U.S. attorney firings. Since the order would seem to affect the appointment of interim U.S. attorneys, it should have been among them, they write.

You can read the letter here.

Tired of waiting for a response, Senate Judiciary Chairman Pat Leahy (D-VT) issued a subpoena for any of Karl Rove's emails in the Justice Department's possession that might be relevant to the U.S. attorney firings. That includes emails sent from Rove's White House account (which apparently doesn't get much use) and emails from his account issued by the Republican National Committee.

You can see the subpoena here.

Note: Since the subpoena is to the Justice Department and not to the White House, it sidesteps any executive privilege concerns. And it seems possible that it could even claim internal White House emails since the subpoena specifically includes emails that were obtained by Patrick Fitzgerald as part of the Plame investigation.

Those who are suspicious of U.S. Attorney for San Diego Carol Lam's firing just got a lot more cause for suspicion.

In her written answers to questions from Congress, Lam recounted a conversation with Justice Department official Michael Elston after she was fired in which Elston made it clear to her that she would be gone within "weeks" regardless of the fate of certain cases, and that this order came "from the highest levels of the government." Elston also told her that someone from outside her office would most likely to come in to take over.

Lam had good reason to be preoccupied about certain cases, of course. Her office was close to indicting Brent Wilkes, a defense contractor who allegedly bribed Duke Cunningham and possibly other Republican congressmen, and Dusty Foggo, the former executive director of the CIA.

But according to Lam, Elston told her that her appeals to stay on in order to deal with certain cases was "'not being received positively.'" She was to depart in "weeks, not months" and "these instructions were 'coming from the very highest levels of the government.'"

Lam also adds that Elston told her he "suspected" that the administration would be installing someone from outside her office as her successor, that there would be "no overlap" between Lam's departure and her successor's start date, and that her successor wouldn't have to be vetted by the committee of Republicans in California who had before been responsible for vetting U.S. attorneys in the state.

All of this will do much to increase suspicion that the administration intended to replace Lam with a "loyal Bushie" of their choice.

Lam also describes an odd conversation she had with Deputy Atttorney General Paul McNulty. After being told that she was being fired, Lam called McNulty for an explanation. McNulty declined to tell Lam why she was being fired:

He responded that he wanted some time to think about how to answer that question because he didn’t want to give me an answer “that would lead” me down the wrong route. He added that he knew I had personally taken on a long trial and he had great respect for me. Mr. McNulty never responded to my question.


Lam's account of these conversations is below. You can read all of her answers here.

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