On Thursday Kyle Sampson, the former chief of staff for Attorney General Alberto Gonzales, will testify before the Senate Judiciary Committee investigating the U.S. attorneys matter. Sampson’s appearance comes a few days after word that another top Justice Department aide, Monica Goodling, has informed the committee that she will take the Fifth Amendment against self-incrimination if she is called to testify. In a statement, Goodling’s lawyer blasted committee Democrats, charging that chairman Sen. Patrick Leahy and others “have already publicly drawn conclusions about the conduct under investigation.”

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The most incendiary charge leveled by Democrats, and particularly by committee member Sen. Charles Schumer, is that the Bush administration fired the U.S. attorneys to stop criminal investigations that targeted Republicans. The worst example, Schumer has alleged, is the firing of Carol Lam, the California U.S. attorney who successfully prosecuted former Republican Rep. Randy “Duke” Cunningham for bribery. Lam was fired, Schumer charges, to keep her from investigating others in the GOP.

“The most notorious [case] is the Southern District of California, San Diego,” Schumer said on NBC’s Meet the Press on March 18. “Ms. Lam, the U.S. attorney, had already brought about the conviction of Duke Cunningham. It came out in the newspapers that she was continuing to pursue that investigation, and it might lead to others — legislative and others — and in the middle of this investigation, she was fired.”

If that indeed happened, it would be reasonable to guess that there might be some clues in the more than 3,000 pages of e-mails and other documents pertaining to the U.S. attorneys matter released by the Justice Department. But that’s not the case. In fact, the e-mails show a much different dynamic at work. The picture that emerges from the evidence in the Lam case is of a Justice Department at profound policy odds with the U.S. attorney, preparing to take action against her, but at the same time ignoring or brushing off outsiders who criticized Lam on the very grounds that troubled Department officials. Added to that was a bureaucratic morass that made it impossible for the Department to do anything quickly. Together, those factors created a situation in which Department officials pursued a reasonable goal — finding a new U.S. attorney for Southern California — while denying to outsiders that they were doing it, taking far too long to get it done, and mismanaging its execution. In other words, it was an operation in which Justice Department officials did virtually everything wrong — except what they’re accused by Democrats of doing.

A POLITICAL OFFICE
In 2001, for a brand-new Bush administration trying to move fast on many fronts, finding a new United States attorney for the Southern District of California wasn’t easy. Actually, finding any U.S. attorneys for the state of California wasn’t easy. Although they are officially nominated by the president, U.S. attorneys in each federal district — California is divided into four such areas — are traditionally chosen by the senior official of the president’s party in the state. Often that is a senator, but if there is no senator of the president’s party, the responsibility passes to the governor. And if there is no governor of the president’s party — well, the White House tries to figure out another way.

That was the problem facing George W. Bush in California, with Democratic Senators Dianne Feinstein and Barbara Boxer, and Democratic Gov. Gray Davis. The president’s solution was to rely on a selection committee headed by a man named Gerald Par sky, a Los Angeles investment banker who ran the Bush campaign in California and who also helped in the search for nominees to lower-court federal judgeships.

It wasn’t an easy job; the position of U.S. attorney for the Southern District had been wracked by politics in the previous decade. In 1993, Bill Clinton replaced the Republican U.S. attorney, a career prosecutor and veteran of 20 years in the Justice Department, with Alan Bersin, a law professor who had no prosecutorial experience but who had been a classmate of Clinton’s at Yale and head of the Clinton campaign in San Diego. (Bersin pledged to vigorously pursue Clinton priorities like environmental law.) In March 1998, Bersin resigned to become head of the San Diego school system.

The man who was thought to be the hands-down choice to replace Bersin was prosecutor Charles LaBella, but LaBella ruined his chances when he was chosen to lead the Justice Department’s investigation into the 1996 campaign-finance scandal. Frustrated with the restrictions put on his investigation by then-Attorney General Janet Reno, LaBella publicly called for an independent counsel — an act that deeply angered the Clinton White House. When the time came to pick a new U.S. attorney, LaBella was passed over. An interim prosecutor, never confirmed by the Senate, took the job.

After George W. Bush took office, several names were mentioned for the job, including San Diego city attorney Casey Gwinn, who had the support of Republican congressmen from the area. By August 2001, a few more names were in the mix, including Charles LaBella himself and San Diego Superior Court judge Carol Lam. But months passed, and nothing happened. The word in Bush circles was that diversity concerns and political considerations were holding things up. “They had to have Asian-American women,” recalls one lawyer who was involved with the process. Lam fit that bill, but she was also an independent — not a Republican. In the end, though, she got the job; the Bush administration formally nominated her in August 2002, and she was confirmed by the Senate in November. It had taken the president more than a year and a half to place a U.S. attorney in San Diego.

So a troubled selection process ended. But a troubled tenure began, a tenure that would end in December 2006, when Lam was one of the eight U.S. attorneys whose firings would become the latest scandal roiling Washington.

IT DIDN’T START WITH DUKE
The key allegation in the Lam case is that she was fired because she was going to continue to prosecute cases that grew out of the Cunningham matter. But the documents release by the Justice Department show that officials there were dissatisfied with her work and were considering replacing her well before the first allegations against Cunningham ever arose, in a June 2005 story in the San Diego Union-Tribune.

It all got started in December 2003, with an article in another paper, the Riverside, California Press-Enterprise. The story was headlined “Border Agents Face Uphill Fight: Even after arrest, prosecutions of smugglers are rare due to lack of resources,” and it quoted Republican Rep. Darrell Issa, who represents the area, criticizing federal authorities for not prosecuting criminal alien smugglers. A month later, the paper published a follow-up story detailing how an alien smuggler named Antonio Amparo-Lopez had been arrested at a border checkpoint but later let go.

Issa was disturbed by the story. On February 2, 2004 — 15 months before the Cunningham case began — he wrote a letter to Lam citing the Amparo-Lopez case and asking for “the rationale behind any decision made by your office to decline or delay prosecution of Mr. Amparo-Lopez.”

Six weeks later, Lam wrote back, telling Issa to direct his complaint to the Justice Department in Washington. Two months after that, on May 24, Issa got a brief letter from Assistant Attorney General William Moschella, offering no explanation for Lam’s decision not to prosecute Amparo-Lopez. Moschella’s answer was, in full: “Based upon all of the facts and circumstances of his arrest, the United States Attorney’s Office declined to prosecute Mr. Amparo-Lopez.”

Unhappy with Moschella’s non-answer, on July 30, 2004 — still nearly a year before the Cunningham case broke — Issa wrote to Attorney General John Ashcroft. This time, Issa was joined by other California Republican congressmen, including David Dreier, Chris Cox, Jerry Lewis, Dana Rohrbacher, Cunningham, and several others. “It is our understanding that on numerous occasions when the Department of Homeland Security has apprehended alien smugglers and have requested guidance from the U.S. Attorney’s office, they have been told to release these criminals,” the congressmen wrote. “It is unfortunate and unacceptable that anyone in the Department of Justice would deem alien smuggling, on any level by any person, too low of a priority to warrant prosecution in a timely fashion.”

This time, it took the Justice Department six months to respond. When the Department finally got around to it, in a January 25, 2005 letter to Issa, Moschella defended the Department’s performance and offered no solutions. Issa grew more frustrated. “We were stumped in terms of getting information to explain the scope of the problem,” says Frederick Hill, a spokesman for the congressman. “We put the word out on the street that we were interested in getting more information about this.” Issa was hoping for a tip — perhaps from someone inside a law-enforcement organization — to give him the information he had been seeking.

But even though the Justice Department was offering Issa no answers and no help, his complaints were apparently registering. On March 2, 2005 (still a few months before the Duke Cunningham case broke), as officials considered a proposal to get rid of all 93 U.S. attorneys in the country, Kyle Sampson, the attorney general’s chief of staff, placed Lam’s name on a short list of those to be replaced. Her name was put in the category of “weak U.S. attorneys who have been ineffectual managers and prosecutors; chafed against administration initiatives, etc.” Sampson’s memo included the date on which Lam took her oath of office — November 18, 2002 — which meant that her four-year term would not expire until November 2006.

Issa, meanwhile, kept writing letters. In September 2005, Issa and his fellow California lawmakers bypassed the Justice Department and wrote directly to President Bush, warning of “a crisis along the Southwest border that needs your attention” and specifically complaining about the San Diego U.S. Attorney’s office. Six weeks later, Issa got a brush-off letter from Candida Wolff, the president’s assistant for legislative affairs. Nothing was done.


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