Schumer defies Justice

Sen. Charles Schumer (D-N.Y.) last week ignored a plea from the Bush administration by demanding that Kyle Sampson name other U.S. attorneys the Justice Department had been planning to fire.

Schumer’s query to the former chief of staff to Attorney General Alberto Gonzales at last Thursday’s Judiciary Committee hearing is notable because he made it in highly public fashion after the Justice Department already gave him access to the answer.

Schumer wants to know the names of U.S. attorneys the Justice Department had originally planned to terminate along with David Iglesias, Carol Lam, and six other attorneys. Democrats have alleged the personnel moves were politically motivated, raising the specter that high-level Bush administration officials meddled with law enforcement. 

If the other attorneys once slated for dismissal had worked on politically sensitive criminal investigations, or if they had performance records similar to — or worse than — those let go, Democrats would have more ammunition for their arguments.

“The purpose of today’s hearing is not to find a smoking gun,” said Schumer at the Judiciary Committee hearing. “The purpose is to build a factual base and to continue to figure out what went on. The purpose is not gotcha. The purpose is, as they said in Dragnet, just the facts, ma’am.”

But Schumer’s emphasis on gathering information while television cameras and reporters for the nation’s largest newspapers were present shows that managing publicity has become as much a part of congressional investigation as gathering facts. Because he is also chairman of the Democratic Senatorial Campaign Committee, Schumer’s media focus has opened him to criticism that he is seeking political gain from the controversy.

Schumer’s office did not comment for this article.

In a letter sent to Schumer and Judiciary Committee Chairman Patrick Leahy (D-Vt.) the day before Sampson testified, Richard Hertling, the acting assistant attorney general, warned that revealing the attorneys’ names during Thursday’s high-profile hearing would “compromise the ability of Main Justice to work with them and all other U.S. Attorneys,” according to a copy obtained by The Hill.

“The Department is greatly concerned about any public disclosure of the identities of the U.S. Attorneys who were considered for possible replacement but not asked to resign,” Hertling wrote. “Such a disclosure would be fundamentally unfair to those U.S. Attorneys….”

Instead, the Justice official invited members of the Senate Judiciary panel and their staffs to review the records containing the sensitive information.

“We have asked that the Committee Members and staff accept our invitation to review the unredacted records containing that information,” he wrote.

But Schumer appeared less interested in discovering the names of additional attorneys whom Justice officials had contemplated firing than in publicizing their identities while the national media was focused on Sampson’s public testimony.

“I will insist,” said Schumer when Sampson hesitated about revealing the names. “I understand the sensitivity, but this is serious stuff.”

“I think that’s very important to know,” he added.

Sampson revealed that Justice officials had at one point planned to fire Anna Mills Wagoner, the U.S. attorney for the Middle District of North Carolina, and three other U.S. attorneys, but later changed course.

Democratic congressional staff members have already reviewed the documents made available at the Department of Justice, according to one Republican working with the administration. Republicans speculate that Democrats who reviewed the files are the source of leaked information that Justice officials had briefly considered removing Patrick Fitzgerald from his U.S. attorney’s post. At the time Fitzgerald was serving as a special prosecutor and investigating the Bush administration.

Law experts say there does not appear to be any legal restrictions on congressional Democrats from using information they gleaned from files reviewed at the Department of Justice.

“Why can’t Congress take Justice up on its initial offer [to review the documents] and see what they find and then argue about revealing it in the public sphere if they find information that troubles them?” said Carl Tobias, a professor of law at the University of Richmond who specializes in federal court issues. “Unless there’s some unwritten promise running between members of Justice and members of Congress, I don’t see how you preserve that confidentially.”

Jonathan Turley, a law professor at George Washington University, said that the information made available to Schumer does not appear to be restricted. 

“The usual procedure is that the letter would state any restrictions or conditions for the letter,” he said. “It would be hard to argue that there are those types of restrictions. [The information] is very similar to information already released by Department of Justice: It’s not covered by executive privilege or covered by the Privacy Act.”

Schumer and fellow Democrats have worked to keep the U.S. attorneys’ controversy in the news. On Friday, Schumer sent a public letter to Gonzales demanding that the attorney general clear Iglesias’s name. On Sunday, Schumer talked about the larger controversy on CBS’s “Face the Nation.”

Also on Sunday, Leahy appeared on NBC’s “Meet the Press” to discuss his panel’s investigation. Leahy also recently sent a public letter to Gonzales “asking the Department of Justice to establish appropriate safeguards to avoid potential conflicts of interest as the Judiciary Committee continues its ongoing investigation into the dismissals and replacements of several U.S. attorneys,” according to a press release advertising the letter.