Former U.S Attorney Roundtable

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In 2006, during the Bush administration, seven U.S. Attorneys were told to resign by senior officials at the U. S. Department of Justice.
HORIZONTE talks to three former U.S. Attorneys: Bud Cummins, David Iglesias, and John McKay, about their experiences and maintaining the role of a prosecutor.

José Cárdenas: In 2006, senior officials at the U.S. Department of Justice, under the bush administration, fired seven U.S. attorneys from their positions for, Quote, performance-related issues. Joining me now to talk about their experiences are three of the former U.S. attorneys -- Bud Cummins, John McKay, and David Iglesias. David, you were interviewed about your experiences, but summarize them for our viewers.

David Iglesias: I was the US attorney for New Mexico for 5 years and I was the last U.S. attorney to be put on the list to be fired. What happened to me was I faced pressure to file voter fraud cases that I knew I couldn't prove and to file an indictment against a prominent democrat in a corruption case that wasn't ready to be filed. I did not do what was requested of me and as a consequence, placed on a list to be fired.

José Cárdenas: And the senator from New Mexico complained to the White House and that appears to what started the ball rolling.

David Iglesias: Several times In 2005 and 2006, that's correct.

José Cárdenas: John, your experience is somewhat similar, had to do with election issues.

John McKay: I was the U.S. attorney in Seattle and state of Washington in 2004, we had the closest election in the history of the state. 129 votes determined the election of our democratic governor of the state of Washington. Much controversy there about allegations of voter fraud. Some took the position that the federal government that the justice department should pursue these as a criminal matter and as U.S. attorney, I should be doing that. I was overseeing the investigation and there was no evidence of voter fraud. It appears now as we look at emails and evidence, that I was put on a list first in 2005, at the height of the controversy of the election to be fired and I was fired on December 7th along with my friend, David Iglesias.

José Cárdenas: And none of these instances were mentioned as performance related. Bud, in your situation, what proved to be the actual explanation had to do with some political favoritism.

Bud Cummins: Mine was a simpler story. There was an individual on the White House staff who simply wanted my job and was able to cause my name to be on the list so he could have the job and actually, they admitted that and did not maintain for a long period of time that I was fired for performance reasons.

José Cárdenas: Even if it had be true, as I understand it, this was fairly -- not fairly, but completely unprecedented to have U.S. attorneys replaced during the middle of an administration.

Bud Cummins: That's correct and it's a little bit confusing for people because they've heard we served at the pleasure of the president. And heard that bill Clinton fired all of his when he started and George Bush fired them all. And in modern history, that's what happens. A president gets elected and especially if there's a change of party in the White House, they ask for the resignations of all attorneys and then put their own in there. But what had never happened was for a president to go to one of his own nominees and pull them back out and try to replace them absent obvious malfeasance. So this decision to pick people for whatever reason and ask for resignations so others could have their jobs or because they failed to meet a political litmus test was unprecedented.

José Cárdenas: Unprecedented or not, It's something they could have done. Perhaps the best thing would be to give no reasons. But they did feel compelled to give some justification. But it kept changing, what was going on there?

Bud Cummins: You're right. Had they done -- made these decisions and offered no explanation. Because we served at the pleasure of the president, they project would have skated by with that. But when pressured by congress to explain why they had made these unprecedented decisions, they offered up the explanation that they were performance related, management decisions. And frankly, we were in an position to know that couldn't possibly be true because of what we could see and what we couldn't see and because our professional reputations were at stake, we did what a lot of people would do, we spoke up and said that's not what is going on here.

José Cárdenas: John, you had immediate proof. There had been an evaluation conducted on your office and it showed the opposite.

John McKay: I think bud and I were in the same situation. We had just had extensive reviews. Mine was a three-year review as an United States attorney in Seattle. And I was pleased with that, because my staff and the men and women I worked with in Seattle were shown in that report to have been strong performers. That's what the report said and listed my leadership as exemplary. I couldn't have had a better evaluation than the one I received and the ink was still wet on the report when I got the phone call on December 7th, Pearl Harbor day, saying my services were no longer necessary and again I accepted the decision initially. Because it's not my job it's a public trust position and the president had the right to ask me to leave. It was only later that we learned there were less savory explanations for our dismisalls.

José Cárdenas: At least some of you, it was made clear it would be better if you didn't say anything because otherwise, they might make disclosures that might be embarrassing or at least suggest that there were problems with your office.

John McKay: You're right about that. I was one of those who received a telephone call from -- of course, now from a former justice department official who implied to me that if I remained silent, the then-attorney general, Alberto Gonzalez would not say anything negative about me. I rejected that offer and told them they wouldn't control what I had to say. At the time I was still in office and wanted to do nothing that would embarrass the justice department or the president of the United States. I was appointed by president bush and confirmed by the U.S. senate but didn't want to be threatened. I made it very clear to that caller that I wasn't going to respond to his threat.

Bud Cummins: And later, when the situation developed more and we were on the eve of being -- we were being asked to testify in front of congress and declined and trying to stay out of the fray, I got a call from the same official and he made it pretty clear at this point, the explanation had been offered for why I had been asked to leave. But he made it clear if all of us tried to offer other explanations or comments to the press, that these others would be -- and this is a quote, "thrown under the bus." We knew what that meant and it didn't go over well with any of us. We were all attorneys and prosecutors and didn't care to be threatened like that.

José Cárdenas: David, in your case, the heavy handedness was throughout. The pressure coming during the course of the campaigns, or shortly after the election results were in and the investigation you were conducting to speed it up. Tell us about that and ultimately what they tried to give as a justification for letting you go.

David Iglesias: Well, it was going on in 2006 in New Mexico was a tightly fought race in Albuquerque. And the incumbent was a friend of mine. Behind in the polls, she calls me and sitting member of congress wanted to know about sealed indictments, she'd heard I'd sealed until after the election cycle. I didn't respond. I get a call from senator Pete Domenici, wanting to know if I was going to file the indictments, these corruption indictments, before November, which is when the election occurs. So the message I took and I had a political background, was to get these filed, to aid Heather Wilson, the then incumbent congresswoman and I knew I couldn't play politics because all of us took the same oath to the constitution and not to play politics. I knew I could be fired for engaging in political activities and I was fired for not engaging in political activities which came as an absolute shock to me. The reason they gave was that I was an absentee landlord. I wasn't around that much.

José Cárdenas: And the reference was to -- the extent that you weren't around because you were in the navy.

David Iglesias: Military reserve officer. I did anywhere from 35 to 40 days of duty outside of the state of New Mexico. They didn't volunteer that to congress. So when we testified, I told them I was gone a lot but because I was on justice department subcommittees and I'm a naval reserve officer.

José Cárdenas: And you're still in the navy, correct?

David Iglesias: Right.

José Cárdenas: Handling prosecutions at Guantanamo.

David Iglesias: Uh-huh.

José Cárdenas: And as I recall your story is the basis for "An officer and a gentlemen" --

David Iglesias: A few good men was partially based on --

José Cárdenas: A few good men-Mixing Tom cruise with some other actors, but yes.

David Iglesias: That other case occurred back in 1986 in Guantanamo also.

José Cárdenas: Bud, We had a chance to talk in the green room and there was a third factor that you emphasized made this so different. And that was the fact that while you're all political appointees, you are, in fact, supposed to be insulated from political pressures. That is the job of the department of justice. What happened?

Bud Cummins: Well, it's -- it is clear that it's a political process to become an United States attorney. We're politically appointed. A lot of us had political backgrounds but we all know -- or should have known, that you left politics at the door. You prosecute in a non-partisan way. I don't think -- and there's some debate even amongst us about what the White House should have or shouldn't have done or what Carl rove should or shouldn't have done. We all agree though that whatever they did or said to the department. Justice about information they heard, maybe criticizing David Iglesias, for instance. The attorney general is in a unique position, he can't be a yes man to the president when the laws of the United States are at stake. and in this case, the integrity of the entire department of justice was at stake and there's no question that the attorney general and the deputy attorney general were in a position to intervene to make sure these prosecutors, like David were insulated from outside political criticism and they failed. Whether others outside of the department also are subject to criticism, again, we don't even all agree about that. But we agree that the leadership at the department the justice absolutely failed to insulate their own personnel from political influence.

José Cárdenas: David, what impact did that have on the department of justice?

David Iglesias: Well, a tremendous loss of credibility, of integrity. In fact, it was the biggest crisis in leadership since Watergate when a lot of top people resigned rather than obey an order that Richard Nixon gave to fire the special prosecutor. It hurt the credibility of the justice department being fair and impartial and basing its cases on the law and the evidence. And not political pressure.

José Cárdenas: John, a lot of investigations came out of this? Can you summarize them for us and the consequences?

John McKay: You're right about that, the congress has investigated the firings of the United States attorneys back in 2006. The inspector general for the department of justice has conducted an investigation. There's currently an ongoing criminal investigation in the District of Columbia before a federal grand jury. I don't know when they may come to a decision, We don't know who the targets will be in that particular case. The conclusions really have been so far -- and I think it's fair to summarize from the exact words of the inspector general report, which says that Alberto Gonzalez and Paul McNulty, who was deputy attorney general, abdicated their leadership responsibilities by allowing these firings to take place and cause the problems that David alluded to, not just morale. But it is this. Prosecutors are the chief law enforcement officers in their district. We in many ways commanded the FBI and DEA and made final decisions about who got arrested and put in federal prison and the public has to have the assurance that people who sit in those positions make their decisions based on evidence and based on decisions that involve fairness and compassion where it's appropriate and not on politics and certainly not on the instructions of a political party and so today, we were at Arizona State University at a conference, talking to law students about the importance of making decisions based on the law and not based on politics. And that's the distinction and why there are lessons today about something that happened three years ago. It's not a tragedy that we lost our jobs. Many people have. The tragedy is and the harm caused was that it caused people to question whether or not those who hold our positions are following the constitution or following a political party.

José Cárdenas: John, you were joined at that conference by two other U.S. attorneys who lost their positions. Paul Charlton of Arizona, and give me a thumbnail sketch of the situation that involved them.

John McKay: Paul Charlton was our dear friend and outstanding federal prosecutor, had the temerity -I say that sarcastically- to call the attorney general of the united states on a death penalty decision here in Arizona- he did no think that there should be a death penalty in the preceding case and he was overruled by the department of justice and he asked to speak with the attorney general and they mocked him. And that wasn't right and I think in the end, Paul was proven correct in his recommendation. The death penalty was not sought in the case but Paul did his job in pursuing that to the highest possible level because someone's life was at stake. The worst thing that could happen was to have a wrongful conviction or somebody executed that shouldn't have been executed. That's not what we want. It's documented in the materials that Paul was fired for that reason and those who look at that think it is abominable. And in carol lamb's case, highly respected in San Diego had completed the most well known case in the United States dealing with political corruption, duke Cunningham, a Republican congressman who had been convicted on many counts of fraud, current serving time in federal prison, he was a Republican congressman. And she announced indictments of the No. 3 official at the central intelligence agency and in the middle of this, she's fired and she begged them not to give the impression that these prosecutors would be the reasons for her removal. One would think they would come forward with strong reasons and they could not in carol's case or Paul's case or frankly, in any of our cases and the public is left to question whether the removal of a David Iglesias or carol lamb was because they were doing their jobs and those others wanted them to do political things,

José Cárdenas: it's apparent this was horrendously bad judgment on all accounts. What lessons are there to be learned.

Bud Cummins: I think from a government standpoint, it highlighted the fact that the attorney general is a cabinet level position. He owes loyalty to the president. But among all of cabinet members, he's in an unique position. There are times when he has to act independently and say no. It's a question of his loyalty if he does that it's a question of his integrity if he doesn't. And that was highlighted in this. As far as our discussion with the law students today, I think maybe one thing that they found interesting is we tried to describe to them, almost every attorney, not long after they enter practice, will face some situation where their loyalty verse integrity will be called into question. They're work hard to get a plum job and then some senior partner will call them in and say I need you pad this bill or withhold these documents or I need you to do something and they're going to have to say no because their integrity dictates they say no. In some form or fashion, every lawyer faces these issues from time to time and there's a whole series of people at the Department of Justice that had an opportunity to step up and act with integrity and stop this process at any part along the way and amazingly, they all failed that test.

José Cárdenas: David, your message to the law students?

David Iglesias: I would say independence and integrity have to be the hallmarks of every prosecutor. Especially at federal level. The US attorney and assistants are the only public officials at the federal level who can take away your life, property and liberty and do it legally. They have tremendous powers that can't be abused and the U.S. attorneys have to be protected from illicit political interference. Do the right thing and be willing to pay the price. Fortunatley we donly live in a country where we are sent to a gulag. We lost our jobs. But I can say speaking for myself, I've never regretted speaking out. I wouldn't change anything looking back now.

José Cárdenas: John, you mentioned Paul Charlton and talked about the importance of keeping politics out of decisions. Paul, a well respected former prosecutor. Now a defense attorney, was on our show raising concerns about the current situation in Maricopa County where you have sitting judges who have criminal charges filed against them. And four sitting and former judges who have civil racketeering charges filed. I realize this is not your state. You may not be familiar with the facts, but does it raise any concerns that your situations raised?

John McKay: Very much so. I think one of the reasons we're speaking out -- I'll speak for myself -- I continue to speak out on the issue of what happened at the department of justice, dark days, in our minds, unless we tell this sort of cautionary tale of what happened to each of us, we'll see abuses of power and authority in government. One of the messages we tried to communicate today to the law students at Arizona State University, in our judgment, it's not endemic to the Republican party. We happen to be in a republican administration, but rather an abuse of power, but for the local situation, you're correct, José, I don't know the facts but I'm troubled by the idea there could be indictments or that the charges would be filed against sitting judges without an apparent smoking gun of facts. You know, a transfer of cash that we know about, of some incredible abuse of power where the facts are clear to all in the community and we sadly look at -- and it appears to be a political exercise from the outside.

José Cárdenas: I'm afraid we're out of time. Gentlemen, there's so much we could say but don't have time. Thank you for joining us.

Bud Cummins:Former U.S. Attorney;David Iglesias:Former U.S. Attorney;John McKay: Former U.S.Attorney;

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