Posted 8:25 PM by Howard Bashman

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March 30, 2007

A 'REAL PROBLEM’ FOR GONZALES?
Democrats Still Say Lam Was Tossed for Pursuing Corruption Case

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - The former Justice Department official who oversaw the firing of San Diego U.S. Attorney Carol Lam denied before Congress Thursday that she was dismissed for zealously pursuing a major corruption case.

But Democratic senators, including California Democrat Dianne Feinstein, remain unconvinced that the Bush administration did not have an ulterior motive for firing Lam and seven of her colleagues.

D. Kyle Sampson, until recently chief of staff to embattled Attorney General Alberto Gonzales, testified under oath that Lam was fired because of her record on immigration cases.

He resigned earlier this month, telling senators Thursday that he did so because he felt responsible for the poor manner in which the department handled the firings.

Thursday's hearing increased the heat on Gonzales, after Sampson testified that both the attorney general and former White House Counsel Harriet Miers had the final say in approving the plan.

Sampson's role in the bungled scheme, which included the dismissal of San Francisco U.S. Attorney Kevin Ryan, has been well-chronicled, as has a May 11, 2006, e-mail he wrote referring to the "real problem" the department had with Lam.

He wrote the e-mail a day after Lam expanded a corruption investigation involving San Diego Republican Rep. Randy "Duke" Cunningham, who is serving prison time for a bribery conviction.

Sampson maintained Thursday during his appearance before the Senate Judiciary Committee that he did not recall seeing Lam's notice that she was seeking search warrants for defense contractor Brent R. Wilkes and former CIA official Kyle "Dusty" Foggo at the time he wrote the e-mail.

"The real problem at that time was her office's prosecution of immigration cases," Sampson said under questioning from Sen. Arlen Specter, R-Pa. "That's what was on my mind."

He added that he wrote the e-mail when Congress was debating immigration reform and some Republican members of Congress had been critical of the Justice Department's immigration enforcement record.

Sampson also testified that Lam's failure to follow directives from Washington on both immigration and gun-related cases had been flagged in early 2004, as internal Justice Department documents show.

That was before the Cunningham investigation was made public, Sampson noted.

Describing Lam as "a good person and a good lawyer," Sampson said he first heard complaints about her relating to the low number of gun-crime cases she was prosecuting.

A crackdown on gun crime has been a major initiative of the Justice Department under President Bush.

"It was a subject of consternation," Sampson said of Lam's record.

Despite Sampson's testimony, Feinstein was unmoved.

She said during a break in proceedings that she believes that senior officials may have had other reasons for dismissing Lam.

"It just doesn't wash with me that it was immigration," Feinstein said. "This woman was respected by the entire San Diego community."

Although there may have been "a few disgruntled people" who complained about her, such as San Diego Republican Rep. Darrell Issa, most believe Lam "has done an excellent job," the senator added.

Feinstein also noted during the hearing that the Justice Department defended Lam's record on immigration in a letter to her in August 2006.

No one in the Justice Department ever called Lam to complain about her approach to such cases, Feinstein added.

Sampson's appearance before Congress was just the latest twist in a saga that has plunged the Justice Department into chaos.

Democratic senators used the hearing to question him about how much White House officials, including senior presidential adviser Karl Rove, knew about the scheme.

"Despite the initial denials of White House involvement, it is now apparent that White House officials were involved in the planning and replacement of U.S. attorneys and the subsequent misleading explanations," said Sen. Patrick J. Leahy, D-Vt., the committee chairman.

Leahy and his colleagues also increased the pressure on Gonzales, whose hold on his job is increasingly tenuous after he initially told members of Congress that he was not involved in the firing process.

Internal Justice Department documents later showed that he was present at a meeting on Nov. 27 2006, at which the firings were discussed.

"I don't think the attorney general's statement was accurate," Sampson testified. "I remember discussing with him the process, ... and I believe he was present at the meeting."

He added that it was Gonzales who "made the final decision" to fire the eight prosecutors.

Sampson was less revealing about Rove's involvement, saying only that he believes Rove saw the plan before it was implemented.

At one point, Rove also asked to be given more information about why some of the U.S. attorneys were removed, when Kevin Ryan called him to protest his own removal.

Congress has authorized subpoenas for Rove and Miers but remains locked in a stand-off with the White House over the terms under which they might agree to testify.

Senators also grilled Sampson Thursday about allegations that the administration planned to circumvent traditional Senate confirmation for U.S. attorneys by making use of a little-known provision of the 2006 U.S.A. Patriot Act reauthorization.

Although Sampson denied that the Bush administration intended to make widespread use of the legal loophole, he admitted that senior officials considered using it to install GOP insider and Karl Rove protegee Tim Griffin in Arkansas.

He said Gonzales was aware of the proposal and eventually decided not to pursue it after speaking to Arkansas Democrat Sen. Mark Pryor, who was opposed to it.

Gonzales "thought it was a bad idea, and he was right," Sampson testified.

Gonzales did, however, appoint Griffin the interim U.S. attorney in December.

Griffin has since said he will not seek a permanent appointment.

This week, both chambers of Congress voted to reverse the Patriot Act provision.

Posted 12:22 PM by Howard Bashman

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March 22, 2007

CONGRESS MAY EXAMINE GUAM PROSECUTOR CASE
U.S. Attorney Was Demoted After Abramoff Probe

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - Pressure is mounting in Congress for a new investigation into whether the Justice Department demoted the interim U.S. attorney in Guam five years ago because he was investigating disgraced lobbyist Jack Abramoff.

Rep. George Miller, a Democratic U.S. congressman who represents San Francisco's East Bay area, is among those demanding further inquiries in the wake of the recent firing of eight U.S. attorneys, several of whom were involved in corruption inquiries.

Fred Black was acting U.S. attorney for the island territory for 12 years but was demoted abruptly a day after he notified the Justice Department that he was going after Abramoff.

E-mails made public last summer in an internal Justice Department report show that Abramoff took credit for Black's demotion, boasting that he had used his contacts in Washington and within the Justice Department, then headed by Attorney General John Ashcroft.

Adding fuel to the fire is the fact that one of the principal Bush administration officials involved in the mass firing of U.S. attorneys also played a key role in the Black episode. Attorney General Alberto Gonzales' recently departed chief of staff, Kyle Sampson, worked at the White House at the time, which might give further ammunition to those who believe that the recent prosecutor purge was politically motivated.

Throughout his unusually long tenure as an interim U.S. attorney, Black had made corruption investigations his top priority. He was replaced by Leonardo Rapadas, a Republican insider whose uncle was the subject of one of Black's investigations.

Sampson was President Bush's associate director for presidential personnel during that period and was a major player in the removal of Black, according to a report issued last year by the Justice Department's inspector general, Glenn A. Fine.

In that report, Fine found no wrongdoing by the Justice Department.

In dismissing any notion of political meddling, Fine concluded that the Bush administration already had decided to appoint a permanent U.S. attorney by the time Black told officials of his Abramoff probe.

That explanation is not enough for some Democrats, who say evidence that the Justice Department might recently have removed San Diego U.S. Attorney Carol Lam and other prosecutors for political reasons suggests that the department might have done the same with Black.

Miller is among those demanding further inquiries in the wake of the recent firings.

Several of the departed prosecutors, including Lam, were involved in corruption inquiries. Lam had overseen the bribery prosecution of San Diego Republican Rep. Randy "Duke" Cunningham and was about to indict two others when Justice officials asked her to resign in December.

Miller, who holds sway as chairman of the House Education and Labor Committee, wrote a letter last week to Democratic colleagues leading the U.S. attorney investigation, asking them to look again at the Guam episode.

"The recent questions that you have been diligently investigating regarding the treatment of U.S. attorneys recall an earlier episode that was never properly resolved," Miller wrote in the letter, co-signed by Rep. Nick Rahall, D-W.Va. "We urge you to include in your ongoing investigation the potential political manipulation by Jack Abramoff and his allies in Congress."

Miller, who could not be reached for comment Wednesday, previously asked the Justice Department to appoint a special counsel to investigate the matter.

Another California Democrat in Congress acknowledged Wednesday that she plans to follow up on Miller's suspicions about the Guam episode. Los Angeles-area Rep. Linda Sánchez is playing a leading role in the broader investigation of the prosecutor purge as chair of the House Judiciary Subcommittee on Commercial and Administrative Law.

Sanchez's spokesman confirmed that Guam is on the radar.

"The White House has failed to give clear and credible answers to the many questions raised about its purge of federal prosecutors, including those raised by Mr. Miller," he said. "That is why Congresswoman Sánchez is continuing the House investigation into who made the decision to fire U.S. attorneys, why they did it and why these particular U.S. attorneys were targeted."

Groups outside of Congress also are concerned about the wider issue of whether Abramoff was able to exert influence over the investigation that led to his conviction on corruption charges related to his involvement in a Florida casino deal.

Fred Wertheimer, president of Washington, D.C.-based advocacy group Democracy 21, sent a letter to Gonzales on Wednesday, calling for the attorney general to "inform the public whether there have been any attempts at political interference or partisan intervention in the Justice Department's criminal investigation of the Jack Abramoff scandal."

In an interview, Wertheimer said Black's demotion was one of the issues in which he is interested, particularly in light of the recent firings.

"What we have seen revealed in the last few weeks is very concerning," Wertheimer said.

At the prompting of Black himself, the Justice Department inspector general interviewed all of the major players when he investigated the demotion of Black, who still works at the office he used to head.

Fine's June 2006 report concludes that Abramoff had not engineered Black's demotion because the White House already had decided to nominate Rapadas.

But the report also reveals that Sampson and other officials approved Rapadas for nomination despite concerns raised by Black that he would have conflicts of interest in some corruption cases the office was investigating.

Tommy Tanaka, the target of one of the probes, is Rapadas' uncle.

At Black's suggestion, Rapadas was recused from overseeing the case, but members of the Senate Judiciary Committee the deemed the issue important enough to query it when he came up for confirmation. Rapadas' uncle was convicted in 2003.

There is evidence in the report that Abramoff tried to influence the process, beginning in February 2002, and that Black believed there was an attempt to remove him because of his corruption investigations of the leading Republicans in Guam who supported Rapades' nomination.

It is that evidence at which Miller and others believe their colleagues on the House and Senate judiciary committees should take a second look.

Abramoff wrote in an e-mail, for example, that Black was a "total Commie" and advised colleagues that "we need to get this guy sniped out of there."

The report also states that Leonard Rodriguez, the White House staffer responsible for dealing with the Guam position, was told by White House political director Ken Mehlman to keep Abramoff aware of all Guam-related issues.

Rodriguez told the inspector general that he exchanged around five e-mails with Abramoff.

Another official involved in Black's demotion was Associate Deputy Attorney General David Margolis. He is featured in some of the Justice Department e-mails released this week, including one in which he forwarded a negative media account of San Francisco U.S. Attorney Kevin Ryan, who also was fired.

Black wrote Justice Department officials in January 2002, saying he opposed Rapadas' appointment because Rapadas was the choice of local politicians in an "attempt to neutralize" federal corruption investigations.

In their defense, Justice Department officials told the inspector general that the reason Black had not been replaced earlier was a lack of qualified candidates on Guam and the Northern Mariana Islands. Members of the panel that interviewed Rapadas, including Sampson, "all denied selecting Rapadas in order to diminish public-corruption prosecutions," the report said.

Neither Black nor the Justice Department responded to requests for comment Wednesday.

Posted 10:55 AM by Howard Bashman

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March 21, 2007

E-Mails Shed Light on Inner Workings at Justice
Behind the Scenes Tough Scrutiny of U.S. Attorneys by Top DOJ Officals

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - California's two fired U.S. attorneys probably never knew how closely Washington was watching their every move.

It's now common knowledge that the Bush administration claims it fired San Diego's Carol Lam because of her approach to immigration cases and that San Francisco's Kevin Ryan lost his job to his management style.

But in the 3,000 pages of documents released Monday night, a picture emerges of a department in which the top officials are intimately involved in every twist and turn of each U.S. attorney's office.

Here's Deputy Attorney General Paul McNulty castigating Ryan for issuing a press release without his permission.

And here are Justice Department officials joking about Lam's inability to follow orders.

They even exchange e-mails about local newspaper articles and try to fathom the motives of junior members of Congress.

The White House continues to maintain that the firings were internal personnel decisions based on the individual performances of its prosecutors.

U.S. attorneys serve at the will of the president and can be fired at any time without cause, the administration insists.

"These documents do not reflect that any U.S. attorney was replaced to interfere with a pending or future criminal investigation or for any other improper reason," White House Counsel Fred Fielding said in a letter to lawmakers Tuesday.

Democrats aren't convinced.

"Serious questions remain," said Sen. Dianne Feinstein, D-Calif. "There is no clear rationale for the firing of these eight U.S. attorneys, six of whom were involved in public corruption cases."

Although the documents released this week won't resolve the debate over the politics behind the U.S. attorney purge, they cast a fascinating spotlight on the inner workings of an agency usually shrouded in secrecy.

The documents also show that Justice Department officials had reached two conclusions about the two California prosecutors they eventually fired in January: Ryan was loyal but incompetent, and Lam was the opposite.

The various e-mails, reports and memos paint a portrait of a department operating very much top-down, with officials in Attorney General Alberto Gonzales' office intimately involved in debating every decision.

The internal communications show that the officials were especially keen on avoiding negative publicity. Even an innocent query from a Daily Journal reporter about the future of Kevin Ryan two months before he was removed from office required the attention of six officials, including Gonzales' now-departed chief of staff, Kyle Sampson.

Although held to be one of the Justice Department's "loyal Bushies," as Sampson described those prosecutors who toed the party line, Ryan nevertheless was let go because of management problems within his office.

An undated summary of his job performance used by officials to justify the firing in a March hearing before Congress, described San Francisco as "the most fractured office in the nation."

Morale was low, and Ryan had "lost the confidence of many of the career prosecutors who are leaving the office," the report notes.

Ryan's superiors kept a running tally of his professional transgressions, including his decision to issue without permission from the Justice Department a press release on sentencing penalties for steroids use.

In 2005, Ryan negotiated a plea agreement with three defendants in the high-profile BALCO sports doping scandal.

But a year later, Ryan issued a press release heralding the U.S. Sentencing Commission's decision to increase the penalties for steroids-related offenses.

"We are pleased that the Sentencing Commission has taken this action to impose penalties for steroid offenses that reflect the seriousness of the crime," Ryan said in a release issued March 24, 2006.

Ryan's bosses, however, were not pleased.

According to an e-mail, Ryan's superiors let him know the move was not considered "particularly helpful."

"After our conversations, I am fairly surprised that you would not consult with me or anyone else in Main Justice before issuing a press release on something that has nothing to do with your office," Michael Elston, chief of staff to Deputy Attorney General Paul McNulty, wrote in an e-mail to Ryan dated March 31, 2006. "Please don't do anything further in this area without consultation."

Justice Department officials also stayed up to date on newspaper stories reporting Ryan's poor management skills, the e-mails reveal.

In an e-mail dated Oct. 5, 2006, McNulty's assistant David Margolis sent several colleagues a negative story published about Ryan in SF Weekly, a free tabloid.

"Thought you might be interested in this," the subject line reads.

Judging by two other e-mails released Tuesday, Ryan didn't hold any grudges when he was fired, despite the criticism he had received.

Elston reported in a Jan. 18 e-mail that Ryan was staying loyal as the criticisms over the mass firing began to heat up, led by Feinstein.

Ryan refused to speak to Feinstein's office and didn't return calls from Lam, Elston wrote.

"He wanted us to know he's still a 'company man,'" Elston wrote.

A month later, after he was fired, Ryan continued to butter-up his former superiors.

He told Elston, "You have been a gentleman in your dealings with me, and I appreciate it."

An amused Elston forwarded Ryan's e-mail to three of his colleagues.

"I have a one-member California fan club," he wrote.

Having kept secret about the mass-firing plan, Justice officials seemed unnerved when a Daily Journal reporter called Nov. 15, several weeks before six of the U.S. attorneys were notified of their impending departures.

The reporter had asked whether Ryan was to be retained when his four-year term expired.

E-mails show that at least six officials were briefed on the question, finally agreeing that the reporter should be told that it's department policy not to discuss personnel issues.

"Traditionally, the [office's] response has been something simple like, 'All U.S. attorneys serve at the pleasure of the president, and we do not comment on personnel matters," according to an e-mail sent by Department of Justice staffer Monica Goodling to Kathleen M. Blomquist, a spokeswoman for the department.

For Lam, the path to dismissal was more complex.

It's clear from the department's internal reviews that she was respected and that no one doubted her management ability.

But her willingness to fly solo led to consternation in Washington over such issues as immigration and gun crime enforcement.

In a summary of her job performance, the department observed that Lam "is an effective manager, ... a respected leader, ... is active in Department activities and is respected by the judiciary, law enforcement agencies, and USAO staff."

But the report faulted some of her decisions, noting that "she has focused too much attention and time on personally trying cases" and has not responded to department-ordained priorities on immigration and gun crime.

Perhaps most revealing is a lighthearted e-mail from July 8, 2006, written by Bill Mercer, an official in McNulty's office who was returning that week to his principal duties as U.S. attorney for Montana.

In an earlier e-mail, Elston had told Mercer of his sadness that his colleague was leaving Washington and had remarked, "I am not adjusting well to this change."

Mercer responded, "What that Carol Lam ... won't just say, 'Okay, you got me. You're right, I've ignored national priorities and obvious local needs. Shoot, my production is more hideous than I realized."

Elston replied, "Carol Lam is sad, too, but that was not what I was thinking."

Despite the jocular tone of that exchange, it's clear, however, from other documents, that officials took the complaints about Lam's immigration strategy very seriously.

The newly released documents show that while one top official in the attorney general's office was lauding Lam to Sen. Feinstein and San Diego Republican Rep. Darrell Issa, another part of the office was attacking her record on immigration prosecutions.

Assistant Attorney General William B. Moschella told the California senator and congressman that prosecutions for alien smuggling were "rising dramatically" and that Lam accomplished this with the same or fewer assistant U.S. attorneys as in the previous fiscal year.

"Please rest assured that the immigration laws in the Southern District of California are being vigorously enforced," Moschella said in similar letters to both lawmakers in July 2006.

But an e-mail exchange between two other officials suggests that the Justice Department was looking for a way to shoot down Lam's record.

Elston was alerted in a July 18 e-mail from a colleague that the Southern District of California was the only southwest border district that experienced a negative growth rate, minus 4.15 percent, in annual immigration prosecutions. Arizona had 9 percent growth, and all the other district had double-digit growth rates, he said.

"There also remains the policy question of whether [the Southern District of California's] strategy is appropriate," Albert Steiglitz wrote. "That is, are the goals of the criminal justice and immigration system best served by focusing on fewer prosecutions that in turn seek high penalties?"

Steiglitz said he was "somewhat skeptical" of Lam's claim that her strategy was true to the procedures set out in a memo from former Attorney General John Ashcroft, which said U.S. attorneys had a duty to pursue the most serious offenses.

He said Lam seemed to be arguing that her duty required her to choose between lesser offenses and a "single, more serious prosecution," and he suspected that Lam's effort to invoke the Ashcroft memo "might be inappropriate."

However, in the letters to Feinstein and Issa, Moschella said that the effort to obtain higher sentences for immigration violators who present the greatest threat uses more attorney time.

He also pointed out that Lam devoted half of her staff to immigration cases and used a large part of her resources to investigate and prosecute border corruption cases. In the previous 12 months, he said, Lam prosecuted seven corrupt Border Patrol and Customs agents who were working with immigrant smuggling rings.

Again showing the extent to which multiple Justice officials seemingly liked to weigh in on every issue, several, including Elston, were kept in the loop when Lam met in August 2006 with one of her main critics, Issa, and House Judiciary Chairman F. James Sensenbrenner Jr., R-Wis.

Lam wrote in an e-mail that the meeting was "fine (at least I think it was). The tone was civil and at times even friendly."

Justice Department officials Rebecca Seidel forwarded Lam's e-mail to others, noting, "Sounds like she handled it well and was actually constructive."

Further evidence that the department was keeping close tabs on Lam is provided by a white paper written by Daniel Fridman, counsel to McNulty.

Written on May 26, 2006, the six-page memo analyzes case statistics in Lam's district in the light of the criticisms made by Issa and others.

Fridman reported a "precipitous decline" in immigration prosecutions since 2004, especially when San Diego was compared with other border districts.

He concluded that the district should "place a greater emphasis on pursuing illegal re-entry cases and alien smuggling cases."

Daily Journal Staff Writers Amelia Hansen and Claude Walbert contributed to this report.

Posted 3:15 PM by Howard Bashman

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March 20, 2007

Special Prosecutor on Lam's Firing Is Possible, Experts Say

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - The next big question for Democrats in Congress is whether to press for a special prosecutor to investigate possible criminal charges against Bush administration officials for removing San Diego U.S. Attorney Carol C. Lam while she was conducting a sensitive corruption investigation.

While some experts agree there is enough ammunition to demand an investigation by a special prosecutor into obstruction of justice, others question whether the Democrats would want to, given that only the Attorney General has the power to appoint an independent counsel.

It's the Justice Department itself that would, by law, have to appoint a special prosecutor to, in this case, investigate itself.

That's because the law that allows Congress to authorize an independent counsel expired in 1999 following Independent Counsel Kenneth W. Starr's investigation into the relationship between President Clinton and Monica Lewinsky.

In that light, Democrats may be content to rely on their subpoena power, now that they control Congress.

Sources in Washington say Democratic leaders are keeping their options open as information continues to filter out of the Justice Department and White House about who led the purge of eight U.S. attorneys and whether administration officials lied to members of Congress.

Legal scholars agree there may be enough evidence to justify appointing a prosecutor even though a lot more muckraking is needed before a charging decision could be made.

As the Justice Department prepared to release another slew of documents late Monday, senior Democrats were tight-lipped as to how they would react if evidence of potential criminal acts mounted.

At issue is whether Justice Department officials may have violated the federal obstruction-of-justice statute by interfering with an investigation when they removed Lam from office while she was continuing her probe concerning a bribery scandal.

The general rule is that presidents can fire their appointed U.S. Attorneys at will. But an amendment to the federal obstruction of justice statute passed as part of the Sarbanes Oxley reforms, 18 U.S.C. section 1512(c), states that anyone who "obstructs, influences, or impedes any official proceeding, or attempts to do so" is guilty of obstructing justice and can face up to 20 years in prison.

Lam's corruption probe had led to a guilty plea from Randy "Duke" Cunningham, R-Calif., at the time she was told to leave office in December.

Before departing in January, her office issued indictments against two others: Brian R. Wilkes, a defense contactor; and Kyle Dustin "Dusty" Foggo, a now-former CIA official.

Sen. Dianne Feinstein revealed over the weekend that Lam notified the Justice Department that she would issue search warrants for the two men the day before a senior Justice official sent an e-mail referring to Lam as "the real problem" facing the White House and urging she be replaced.

Officials also may have obstructed justice if they lied to Congress under oath about the reasons for firing the prosecutors, legal experts contend.

Senior Democrats have criticized Attorney General Alberto Gonzales and several officials who all gave apparently misleading information when they testified on the issue.

Deputy Attorney General Paul McNulty, for example, said the prosecutors were fired for performance reasons, a statement undercut by internal documents showing that the White House had initiated the firings and that most of the fired U.S. attorneys were performing well.

"If I had this case, I would look at it. I might start a grand jury," said former federal prosecutor Laurie Levenson, now a law professor at Loyola Law School.

But she stressed that, at this point, there is not nearly enough evidence for an indictment.

She added that bringing a criminal case would be hard because prosecutors would have to prove that officials had the intent to obstruct justice.

In Lam's case, even if Justice and the White House removed her primarily because of her work on the Cunningham case, she was allowed to stay in office long enough to bring two further indictments, Levenson noted.

That could play out in favor of anyone accused of trying to remove Lam for political reasons.

Pepperdine University School of Law professor Douglas Kmiec said there's a political reason that Democrats might be in no rush to demand a special prosecutor.

Given that Democrats effectively would be asking the Justice Department to investigate itself, Kmiec said, lawmakers just might continue to hold hearings as a way to gather evidence.

If they uncover evidence of a criminal act, they could refer that to the Justice Department.

But that's a long way off, Kmiec argued.

"Removing a U.S. attorney for political reasons, although stupid, is not illegal," he said.

There are precedents for special counsels maintaining independence while investigating the administration that appointed them.

During the Nixon era, Archibald Cox was appointed by Attorney General Elliot Richardson to investigate Watergate after the resignation of John Mitchell, who was the first attorney general ever convicted of crimes and imprisoned.

Cox investigated the Watergate break-in so aggressively that Nixon tried to have him fired, according to the Oxford Essential Guide to the U.S. Government.

In the infamous "Saturday Night Massacre," Nixon kept firing Justice Department officials until he could find one who would agree to fire Cox.

This prompted such uproar that a new special counsel, Leon Jaworski, was appointed to continue the investigation.

Between them, Cox and Jaworski gathered the evidence that led to impeachment proceedings and Nixon's resignation.

More recently, it was the Justice Department that appointed Special Counsel Patrick Fitzgerald to investigate the Valerie Plame leak case.

James Hamilton, a partner at Bingham McCutchen in Washington, D.C., who specializes in high-level political cases, noted that, in that case, Fitzgerald was given free rein to investigate, to the extent that he was able to prosecute Vice President Dick Cheney's chief of staff, I. Lewis "Scooter" Libby, successfully for perjury.

Hamilton confirmed, though, that the only way for Congress to pursue a criminal case would be to refer evidence to the Justice Department.

"If a special counsel is to be appointed, the Justice Department has to do it," he said.

For now, at least, Democrats are keeping their powder dry while ruling nothing out.

"Democrats certainly haven't taken any options off the table," said Nick Papas, a spokesman for Rep. Rahm Emmanuel, D-Ill., chair of the Democratic Caucus. "It's certainly an option."

Members of the California delegation involved in the probe of the Justice Department were more circumspect.

A spokesman for Los Angeles Democrat Rep. Linda Sanchez, who is chairing a key subcommittee that's investigating the matter, said she is waiting to see all the evidence before "outlining any definitive steps."

Scott Gerber, a spokesman for Sen. Dianne Feinstein, D-Calif., said she "wants to wait until the facts are in" before making any further decisions.

In other developments Monday, the Senate began consideration of a Feinstein bill that would take away the administration's ability to appoint interim U.S. attorneys indefinitely without Senate confirmation. The White House's interim appointment powers were expanded in last year's reauthorization of the U.S.A. Patriot Act.

Posted 10:30 AM by Howard Bashman

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March 16, 2007

Questions Build Over Lam's Ouster
Assessments of U.S. Attorney's Immigration Record Were Contradictory

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - Evidence is mounting that the Bush administration might have used San Diego U.S. Attorney Carol Lam's performance on immigration-related cases as a pretext for her dismissal.

A review of internal Justice Department documents released this week and recent testimony before Congress shows significant discrepancies in the department's assessment of her record.

Even Lam's staunchest critic, San Diego Republican Rep. Darrell Issa - the first to complain about her approach to immigration enforcement in February 2004 - said Thursday that he is confused by the mixed messages coming out of the department.

It's clear that officials were aware early last year of complaints about the low rate of prosecutions on low-level cases, but at times they defended that policy - and they elected not to fire Lam when the political heat was hottest.

Issa is among those questioning whether the immigration issue was a smokescreen.

"Was there an alternate reason to let her go?" he said Thursday during a phone interview. "Did they use three years of inquiries by members of Congress [about immigration] as an excuse?"

Issa emphasized that he does not believe, as some Democrats have claimed, that Lam was fired because she led the successful prosecution of Rep. Randy "Duke" Cunningham, a San Diego Republican convicted of bribery.

He added, though, that, "I can't say it can't be [the reason]."

Meanwhile, Democrats are making hay with a "smoking memo" by a top aide to the U.S. attorney general which they say shows that Lam might have been fired for her role in prosecuting Cunningham on bribery charges. In the May 2006 memo, written as Lam's corruption probe was expanding, the chief aide to Alberto Gonzales refers to Lam as "the real problem" and recommends lining up a replacement as soon as her term was set to expire in November.

The actual reason top officials in Washington wanted Lam gone, some Democrats contend, is that she aggressively was trying to root out corruption, and her targets happened to be Republicans.

Members of Congress are pushing for more information about whether senior White House officials were behind the scheme to remove the prosecutors, and they have even threatened to subpoena senior presidential adviser Karl Rove and former White House Counsel Harriet Miers.

Even if Lam's performance was lagging, it has become clear that her bosses did a terrible job of communicating their dissatisfaction. The e-mails made public this week show that Justice officials were well aware last spring, and probably earlier, of complaints regarding Lam and immigration enforcement.

To hear Lam tell it, though, as she did last week in sworn testimony before Congress, no one at Justice told her she was underperforming.

In May 2006, Justice officials talked about giving Lam more resources in an e-mail exchange. In August, department officials defended Lam's record in response to complaints from Sen. Dianne Feinstein, D-Calif.

But last month, after summarily firing Lam and seven other U.S. attorneys, Justice officials told the media that Lam was a poor performer - even though she had received a positive job evaluation.

It appears that even those who supported the firings sent contradictory messages. In an e-mail sent May 31, 2006, Gonzales' chief of staff, Kyle Sampson, sent an e-mail to a colleague in the deputy attorney general's office in which he appeared to consider ways the department could help Lam improve her prosecution rate.

"If the AG ordered 20 more prosecutors to [the Southern District of California] to do immigration enforcement only, where would we get them from?" he asked.

He sent that e-mail only six days after Issa lambasted Lam's record publicly, saying she had a "willful disregard" of immigration-related cases.

Further muddying the waters, Principal Associate DeputyAttorney General William E. Moschella defended Lam's immigration record in a letter he sent to Feinstein on Aug. 23, 2006. He noted that prosecutions for alien smuggling were "rising sharply" within the district and made no reference to dissatisfaction with Lam's policies.

Moschella wrote, with seeming approval, that the "immigration-prosecution philosophy of the Southern District focuses on deterrence by directing its resources and efforts against the worst immigration offenders."

Lam, in her Senate testimony, said she believed that the Justice Department was happy with her response to the complaints.

"My interactions with the department following letters received from Congressman Issa and some of his colleagues were positive," she said.

Lam said she met personally with Issa and others and that the feedback she had received from Washington was positive.

"Good, it sounds like it went well, and perhaps [the congressmen] learned something from your meeting," she testified.

Lam could not be reached for further comment Thursday.

Loyola Law School professor Laurie L. Levenson, a former federal prosecutor who testified before Congress about the firings, says it was clear that Justice Department officials "were looking for reasons to dump" various prosecutors.

Still, she added, it's puzzling why the department did not fire Lam earlier in 2006, or even in 2005, if her performance on immigration cases was the reason.

"If this were really a compelling reason for getting rid of her, they would have done it then," Levenson said, referring to the lawmakers' complaints.

Issa said the contradictory statements coming out of the department are, at best, evidence of managerial problems. He emphasized the failure to notify U.S. attorneys whose performances were not up to scratch.

"The U.S. attorneys were not told of their shortcomings," Issa said. "That's of great concern to me."

He cited Moschella's letter to Feinstein about Lam's immigration prosecutions as an example.

"The administration sent back a letter that essentially says, 'All is well,'" Issa said, despite the fact that Lam already was on the list of U.S. attorneys to be fired.

The Justice Department now, more than ever before, needs to explain itself, he added.

Republicans are reluctant to assign political motives to the Justice Department, but some Democrats have seized upon an e-mail Sampson wrote about Lam on May 11, 2006, as a sign of its motives.

Sampson wrote that he needed to speak with White House official William Kelley about "the real problem we have right now with Carol Lam that leads me to conclude that we should have someone ready to be nominated on Nov. 18, the day her four-year term expires."

Rep. Rahm Emanuel, D-Ill., described the e-mail Thursday as "the smoking memo" because Sampson sent it the same day the Cunningham probe was expanded to include an investigation into Rep. Jerry Lewis, another Republican from California.

The expanded investigation was taken over by the Los Angeles U.S. attorney's office, so Lam was not overseeing it.

The Justice Department declined comment Thursday about the reasons for Lam's departure.

The department did, though, release an e-mail Sampson wrote Jan. 9, 2005, to a White House attorney, in which he outlined the department's desire to "replace 15 to 20 percent of the current U.S. attorneys - the underperforming ones."

No mention was made of other motives for replacing them.

In a reference to Rove, Sampson wrote, "If Karl thinks there would be political will to do it, then so do I."

Posted 5:38 PM by Howard Bashman

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March 14, 2007

DOJ DOCUMENTS LEND SUPPORT TO FEINSTEIN CHARGES
E-Mails Indicate Plan Was to Replace U.S. Attorneys Without Senate Confirmation

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - Sen. Dianne Feinstein won vindication Tuesday when internal Department of Justice documents revealed that officials had planned an end run around Congress to replace several U.S. attorneys.

Feinstein, a Democrat from California, was the first member of Congress to raise questions early this year about the firing of eight U.S. attorneys - including two from California. Feinstein questioned Gonzales' actions, saying that he had called her when she first raised the issue and told her there was nothing to be concerned about. And now she's raising new questions, such as whether the White House duped Congress into passing a law that would take away the Senate's role overseeing the appointment of replacements.

What began as a routine query has become a full-fledged Washington scandal that could yet cost Attorney General Alberto Gonzales his job.

The attorney general's top aide, Kyle Sampson, quit this week after it emerged that he played a key role in orchestrating the purge along with the White House.

Gonzales said Tuesday that he regretted "mistakes" that were made in the firing process, but insisted he would not resign even though some Democrats have called for him to step down.

How the Justice Department staged the dismissals of top regional prosecutors became clear Tuesday in internal documents requested by Democrats in Congress.

The documents showed that the White House had at one point considered removing all 93 U.S. attorneys, but was talked out of it by Justice Department officials.

A compromise was to fire eight, including San Diego's Carol C. Lam and San Francisco's Kevin Ryan, who simultaneously announced their resignations in mid-January.

Lam had drawn complaints from Republican lawmakers, while Ryan's office was beset with management problems.

Back in January, Feinstein seized upon a spate of resignations in several states to accuse the president of maneuvering behind the scenes to appoint successors without congressional oversight.

She pointed to an obscure provision of last year's Patriot Act reauthorization that would allow the president to appoint replacements while avoiding the Senate.

It contains a provision that most lawmakers weren't even aware of at the time that would let the attorney general appoint interim U.S. attorneys to serve indefinitely.

Under previous law, district judges appointed interims for up to 120 days so that the Senate had time to confirm a replacement.

Justice officials have maintained they never intended to circumvent Congress, but newly released documents show that Feinstein had good reason to worry.

The documents released Tuesday contain an e-mail Sampson sent to former White House Counsel Harriet Miers in September 2006 in which he highlighted the Patriot Act provision while discussing the plans to fire U.S. attorneys.

"I strongly recommend that, as a matter of policy, we utilize the new statutory provisions that authorize the AG [attorney general] to make U.S.A [U.S. attorney] appointments," he wrote.

He stopped short of saying that Senate confirmation could be avoided indefinitely, but he said the process would take significantly longer.

Sampson noted that an added benefit would be that the White House "can give far less deference to the home state senators" when selecting replacements because the administration's own chosen candidate could be in place already.

Traditionally, home state senators have a major say in U.S. attorney appointments.

In another e-mail he sent in December 2006 to a White House staffer, Sampson accurately forecast the danger to the plan if a member of Congress got wind of it, but argued that it was worth taking the chance.

"There is some risk that we'll lose the [statutory] authority," he wrote. "But if we don't exercise it, what's the point of having it?"

On Tuesday, when all this became public, Feinstein demanded to know whether the White House had been behind the Patriot Act modification all along.

"We really need to know whether this amendment ... was orchestrated by the White House," Feinstein said at a press conference. "Who asked for the change?"

Feinstein added that she believes it is "very likely that the amendment to the Patriot Act ... might well have been done to facilitate a wholesale replacement ... of U.S. attorneys without Senate confirmation."

Feinstein and other Democrats say they want to subpoena White House officials, including top presidential adviser Karl Rove and Miers, to explain their roles in the plan.

Sampson also is likely to be hauled before Congress.

Feinstein questioned Gonzales' actions, saying that he had called her when she first raised the issue and told her there was nothing to be concerned about.

"I guess what really incenses me somewhat is the fact that the attorney general called me and said, you know, I really didn't have my facts right," Feinstein said.

Sen. Charles E. Schumer, D-New York, who has led the Democratic charge on the issue in recent weeks, called again Tuesday for Gonzales to resign.

Gonzales stressed at a press conference that there was never any intent to avoid Senate confirmation.

"I believe fundamentally in the constitutional role of the Senate in advice and consent with respect to U.S. attorneys and would in no way support an effort to circumvent that constitutional role," he said.

These latest developments make it more likely that Congress will pass legislation that would restore the original procedure for appointing interim prosecutors.

The bill, introduced by Feinstein, has already passed the Senate Judiciary Committee but has not yet received a vote in the Senate.

The House Judiciary Committee is set to vote this week on its version of the bill, co-sponsored by Rep. Howard Berman, D-Calif.

A spokeswoman for Berman said the congressman "absolutely" agrees with Feinstein's assertion that the White House was seeking to avoid the confirmation process.

In California, most of those involved in screening U.S. attorney candidates were reluctant to comment on the allegations.

"We're not privy to what goes on in the White House," said Thomas Malcolm, a partner at Jones Day.

He sits on the three-person search committee that interviewed candidates to replace departed Los Angeles U.S. Attorney Debra Yang, who left of her own accord.

"We just put our heads down and do what we're instructed to do," Malcolm said.

Terry Bird, another member of the Los Angeles-area search committee, stressed that "there's tremendous value and great importance in having the US attorney selected by people who live and work in the community" where the official will serve.

"I say that understanding the law and the Constitution gives the executive branch authority," Bird said, "So the president can and should pick whoever he wants for the job."

Chip Nielsen, chairman of the search committee for San Francisco's U.S. attorney, said Tuesday's developments have no bearing on his job to find a permanent replacement for Ryan, who stepped down on Feb. 15.

"We were tasked to do what we needed to do before all this additional information was public," said Nielsen, a Republican member of the appointed search committee. "Our mission doesn't change at all."

The White House has yet to nominate anyone for the three vacant positions in California.

Daily Journal staff writers Robert Iafolla and Amelia Hansen contributed to this report.

Posted 7:04 PM by Howard Bashman

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March 9, 2007

Two Justices Back Splitting 9th Circuit
Kennedy, Thomas Tell House Panel Court Is Too Big

By Brent Kendall
Daily Journal Staff Writer
WASHINGTON - Republican lawmakers who support splitting up the 9th U.S. Circuit Court of Appeals no longer control Congress, but they secured two symbolically significant votes Thursday - from members of the U.S. Supreme Court.

Justices Anthony M. Kennedy and Clarence Thomas, appearing on Capitol Hill to present the court's annual budget request, said the San Francisco-based appeals court was too big and should be broken into smaller circuits.

Too Big to Be Collegial
Kennedy, a Sacramento native and former 9th Circuit judge, left no doubt about his views on the size of the appeals court, which covers 22 percent of the nation's population.

"I saw first hand that it is simply too big to have the collegiality that it ought to have," Kennedy told lawmakers on a House Appropriations subcommittee. "This is not the view of the majority of the members of that court, I know. But I feel very strongly about it."

Kennedy, who now serves as the Supreme Court's point person for emergency appeals out of the 9th Circuit, said he has taken the position for years that the circuit was too large.

The 9th Circuit, he suggested, had so many judges (about 50, active and semi-retired) that it was difficult for bar associations, newspapers and the general public to keep up with them.

"It's particularly important to the judiciary for the public to know who the judges are," he said.

One circuit judge, sitting on a panel with a senior judge and a visiting judge from another circuit could set binding law for one-fifth of the nation, Kennedy said in a troubled tone.

Confusing to District Judges
He also said the size of the 9th Circuit created a "command and control problem" with respect to district court judges, who "don't know who is going to be on this ever-changing galaxy that are the three-judge panels."

"So you can actually take a chance [and] call the law as you see it," Kennedy said. "Depending on the rotation of the panels, you may be reversed, you may be affirmed. That is not good. That is not good judicial administration."

Thomas said Kennedy's views were "generally shared" by the other Supreme Court justices.

"We may differ here and there, but by and large, we think it's just too large," Thomas said. "Now what to do about that is the problem."

Both Kennedy and Thomas said lawmakers should not split the circuit based on ideological opposition to some of the appeals court's decisions.

Their comments came under questioning from a Republican congressman from Montana who supports splitting the circuit.

Reached in her Arizona chambers, 9th Circuit Chief Judge Mary M. Schroeder, a vocal opponent of a split, said she had not seen the justices' remarks and could not comment on them.

Schroeder said she knew Kennedy had voiced support for a split decades ago, but said, "I have not spoken with him on the subject recently."

Republican efforts to divide the 9th Circuit ran out of steam in November when the GOP lost its majority in both houses of Congress.

Political observers expect the issue to gain little traction with the Democrats in control.

Posted 2:50 PM by Howard Bashman

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March 8, 2007

Before Going Live at Supreme Court, Lawyers Refine on Moot Court Circuit

By Brent Kendall
Daily Journal Staff Writer
WASHINGTON - When Los Angeles attorney Jean-Claude Andre learned last year that the U.S. Supreme Court had agreed to hear one of his cases, the lawyer was eager to call his wife and share the good news: He would be making his first high court appearance.

But the court's announcement left Andre with an immediate concern: He would need to practice his arguments, and a quick phone call could ensure that he wouldn't miss out on a particularly good opportunity to do so.

Which call did he make first?

"I honestly can't remember," Andre said with a laugh.

At some point in those first few minutes, Andre, an attorney with Ivey, Smith & Ramirez, dialed Georgetown Law Center in Washington, D.C., and asked the school to set up a moot court in which a group of lawyers and law professors could put him through the ringer before the justices did.

With a high-powered list of attorneys who volunteer their time and an impressive mock courtroom decorated to resemble the Supreme Court's, Georgetown's moot-court services are in high demand.

The school's Supreme Court Institute will moot anyone with a case headed to the court, for free, but for appearances, it won't prep both parties in the same dispute, and it is first come, first served.

Andre's prompt call paid off - the school penciled him in to practice his case, involving the Prison Litigation Reform Act.

When the court accepted another of his cases a few months later, again he called Georgetown immediately.

"The other side in both cases called a couple of hours too late," he said.

Whether a newcomer like Andre or a battle-tested veteran of the Supreme Court bar, most attorneys headed to the high court moot their cases repeatedly before they go live on the nation's biggest legal stage.

By the time the practice sessions roll around, lawyers have written their briefs and tried to prepare for any curve balls the court may throw at them. But are they really ready?

In moot courts that vary in form and formality, the answer comes quickly - and while there's still time to make adjustments.

"We've always got this orientation about why we're right," said Thomas C. Goldstein of Akin Gump Strauss Hauer & Feld, who regularly argues before the court. "Until you're forced to defend something orally in the face of hostile questions, you don't really make yourself see the other side's arguments. That's the real value [of moot courts]."

Veteran Supreme Court advocate Theodore B. Olson of Gibson Dunn & Crutcher said the practice sessions train attorneys to deliver succinct, precise answers and to react quickly.

"In court, you can't waste time, you can't be unclear and you can't stand there and think about the question," he said.

The sessions, Olson said, have the added value of forcing lawyers to get on top of their cases earlier than they might otherwise.

"The fear of being embarrassed and humiliated by people you respect causes you to work hard and get ready," he said.

For the typical moot court session, an attorney will stay "in role" for roughly an hour, sometimes longer, answering rapid-fire questions just as he or she would on argument day.

The purpose is not to limit the session to the 20-30 minutes the typical attorney receives for the actual argument, but instead to handle as many questions as the "justices" can think to ask.

Contrary to some perceptions, mock justices don't pretend to be particular members of the court, so there's no one designated to deliver Antonin Scalia's trademark zingers or Stephen Breyer's famously complex hypotheticals.

In fact, the average moot doesn't feature nine justices, rather five or six.

"Nine is a waste," said Georgetown law professor Richard Lazarus, who co-directs the school's Supreme Court Institute. "You don't need that many to get things going."

Collegially Critical Feedback
And though some mock justices make a concerted effort to be mean, Goldstein said that's not the point.

"The court is actually generally very cordial, very collegial and very smart," he said. "So what you need are people who are going to give you very probing questions."

Particularly for Washington-based practice sessions, Supreme Court attorneys frequently volunteer to serve as justices for their brethren, even if they're not fans of the case they're prepping.

"It's just a matter of helping out as a professional courtesy," Olson said.

After the last questions are answered, moot-court panelists critique the lawyer on style and substance, and because most sessions are done in private, they don't shy away from offering their unvarnished views on the attorney's case.

"These things are really candid," Lazarus said. In the extreme case, he said, panelists will even tell an attorney, "I think you're going to lose your case. Is there a way you can have a soft landing here?"

"The very best advocates are the ones who often change their arguments the most based on the moots," Lazarus said. For first-timers, he said, "it's harder for them to change what they're arguing."

Georgetown is home to one of several established moot-court programs in the Washington area, though the others are more specialized.

The National Association of Attorneys General holds moot sessions for virtually every state attorney with a case at the Supreme Court. The advocacy group Public Citizen preps attorneys representing the so-called "little guy" in public interest cases. Law firm Sidley Austin, meanwhile, offers moot courts and other assistance to federal public defenders.

The U.S. solicitor general's office, which represents the federal government at the court, holds its own internal sessions, normally two for each case. If the office is arguing a case in conjunction with a state or a private party, those lawyers are invited to participate.

Large law firms often organize their own moots internally, inviting in-house lawyers and calling in favors from colleagues in other firms.

Outside of Washington, college campuses are frequently the site for moots. In California, Stanford Law School does them with the most regularity, averaging six or seven each Supreme Court term.

Pamela Karlan, who co-directs the school's Supreme Court Litigation Clinic, said Stanford moots all cases the clinic is involved with, and does a few outside cases, too, relying predominantly on law professors to serve as justices. One student also sits on the mock panels.

The school sometimes invites West Coast attorneys to come in, while other times advocates call in their own requests, Karlan said.

"One of the values we bring to this is, we will moot cases that no one is interested in," she said.

Up the road, Boalt Hall held a moot for one of the most unlikely lawyers to appear before the court this term, Louisville, Ky., attorney Teddy Gordon, who argued that his city's use of racial classifications to assign students to public schools was unconstitutional.

"If I'd applied to Boalt law school in 1968, they would have used my application for the bottom of a bird cage," said a jovial Gordon, a night-school law graduate who spends more time on traffic tickets and divorces than tackling hot-button constitutional issues.

Gordon said the Boalt experience made him realize how much more work he had to do.

"They stopped me as soon as I started," Gordon said. "I absolutely wasn't ready for the intensity of it. They kicked my butt. It was wonderful."

Down at Santa Clara Law School, professor Gerald Uelmen puts together about five moots a year, mostly inviting California lawyers who've had their cases granted.

The sessions are great for students and allow the faculty to stay abreast of cutting-edge legal issues, Uelmen said.

"I stole the idea from Georgetown," he admitted.

Georgetown's Model
Launched in 1999 as a public service, Georgetown's moot court program proved popular almost immediately.

When attorneys called seeking the school's help, "the goal was to see if we could not say no," said Lazarus, the program's co-director.

Because the moots are staffed with volunteers, the program does not cost a bundle to run. The school employs one paid staffer to handle day-to-day operations.

So far this term, the school has held moot sessions for 94 percent of the court's cases.

Armed with a database of 450 lawyers who are willing to serve as justices, Georgetown tries to create a mix on its panels, with a faculty member or two, maybe a former Supreme Court law clerk, and attorneys ranging in age and experience who know the court well.

"It's a little like putting together a string quartet of five or six," Lazarus said. "You want them to work together."

Andre, who made the trip from Los Angeles recently to argue his second high court case, involving the Individuals With Disabilities Education Act, said Georgetown gave him three justices who each had 17 or 18 oral arguments under their belts, plus another two panelists with specific expertise about the law in his case.

"It provided for the perfect moot," he said, "where I got nitpicky questions and big, broad questions."

Andre, who participated in three moots for each of his cases this term, said the mock justices who prepped him for his two arguments anticipated 95 percent of the questions the real justices ultimately asked.

"Both sets of moots were extremely helpful in both cases," he said.

He won his first case and is still waiting on the outcome for his second.

While Georgetown's contacts and location-it's just a short walk from the court-may be its main drawing points, its mock courtroom also has become a signature piece of the program.

The room is adorned with burgundy curtains and a hanging clock designed to resemble those at the court. The carpet is more than a resemblance - it's the real thing. The school asked for, and received, the court's permission to use its ornate pattern.

"It all helps you take the moot seriously," Andre said.

Don't, however, expect to see the mock courtroom in use. Georgetown guards the confidentiality of its sessions so zealously that a Daily Journal photographer was not allowed inside until after Andre's session concluded.

Only specially selected students are ever allowed to attend, and that's only if they have permission from the lawyer.

"When Harvard does [a moot], they turn it into a public event," Lazarus said. "I wouldn't advise anyone to do that."

No one, he said, is going to give a completely honest moot in public.

As a general rule, most attorneys do two or three practice sessions per case. Some do more when preparing for particularly complex cases.

'Will You Moot Me?'
And then there's Georgetown University law professor Neal Katyal, who may hold the modern record: He did a staggering 15 moots before he argued a key war on terrorism case last term in which he convinced the court to strike down a Bush administration plan to try terrorism suspects in military tribunals.

"I basically took a legal pad out," Katyal said, "and made a list of all the people in the country who intimidated me the most, and then I called them all up and said, 'Will you moot me?'"

"For me, it was all about making sure that the right arguments were being made, and being made in the right way," said Katyal, who had watched about 150 Supreme Court arguments but never done one himself.

At the other end of the spectrum are a few old-school holdouts, including veteran advocate Carter G. Phillips of Sidley Austin, who do no moots at all.

Phillips argued his first high-court cases in the 1980s as a member of the solicitor general's office, which didn't hold moot sessions back then. Even after going into private practice, he had argued 15 to 20 cases before the thought of moots even crossed his mind. By then, he decided not to bother.

"There aren't that many dinosaurs like me," Phillips said.

Phillips said he prepares for an argument by sitting around a table with trusted colleagues and just talking to them about his case.

"It's more of a give and take process," he said. "It's really much more conversational. For me, it works just fine. I hope to be more conversational with the justices anyway."

But Phillips, who started the Sidley program that offers moot courts to federal public defenders, said he believes the moot sessions are vitally important for people with limited exposure to the court.

"It's good experience on how not to lose your cool and how not to take it personally," he said.

Goldstein of Akin Gump, however, warned that no amount of practice can completely prepare an attorney for the big day.

"That's a whole other level of stress," he said. "Nothing compares to walking into the courtroom and what that does to your pulse rate."

Posted 7:08 PM by Howard Bashman

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March 07, 2007

AT UNUSUAL HEARING, OUSTED PROSECUTORS TALK BACK
Justice Department Says Lam Fired for Her Handling of Gun, Immigration Cases

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - Ousted San Diego U.S. Attorney Carol C. Lam forcefully defended her handling of immigration cases when she testified before Congress Tuesday as Democrats continue their probe into a mass firing of federal prosecutors.

She finally broke her silence over the circumstances of her sudden departure in February, revealing under oath before the Senate Judiciary Committee that she was not told why she was fired after 4-½ years on the job and was troubled by how the Justice Department handled the matter.

Lam testified along with five of the other eight U.S. attorneys forced from office by the Justice Department since December.

Later in the day, a Justice Department official, explaining for the first time why each attorney was fired, said Lam was terminated because of her poor record on immigration and gun crimes.

Lam said she opted to participate in the highly unusual congressional hearing to defend her record and the work of her former staff in light of the public scrutiny of her tenure.

Democrats are accusing the Bush administration of playing politics with its own appointed prosecutors, and Republicans maintain the dismissals were appropriate because U.S. attorneys serve at the pleasure of the president.

The other former prosecutors who testified Tuesday - David C. Iglesias of New Mexico, John McKay of Washington state, H. E. "Bud" Cummins of Arkansas, Daniel Bogden of Nevada, and Paul Charlton of Arizona - all voiced unease about the manner of their dismissals.

Only one of the eight, San Francisco's Kevin Ryan, who was not called to testify, was widely perceived to be in danger of losing his job because of reported management problems within his office.

The inquiry has become one of the first major public examinations of the Bush administration by the Democratic-controlled Congress, with the Senate and the House both holding hearings Tuesday.

The House subpoenaed Lam and three of her former colleagues last week, and the Senate had threatened to follow suit this week.

Chilling Effect
Lawmakers in both parties, including Sen. Dianne Feinstein, D-Calif., had criticized Lam for not prosecuting enough immigration-related crimes. Some believe that is the reason she was let go.

But some Democrats have speculated that Lam was forced out because she successfully prosecuted a corruption case against a San Diego Republican congressman, Randy "Duke" Cunningham, and was pursuing a broader investigation.

In her testimony, Lam said the Justice Department never broached any concerns it may have had about her job performance.

On the issue of immigration enforcement, Lam said her goal was to shift away from the office's past record of bringing large numbers of low-stakes cases against individual immigrants. She decided to concentrate instead on more-serious cases focusing on human traffickers.

Lam testified that that policy was just beginning to bear fruit, with the number of immigration trials doubling from 42 to 89 during her last year in charge.

"I felt the department was supportive," Lam said, when asked whether she had received complaints from Washington about her work.

Questioned by Sen. Arlen Specter, R-Pa., she refused to say whether she thought the firings were improper, but she made her concerns clear.

"I'm troubled by it because of the potential chilling effect it could have on other U.S. attorneys," she said, in reference to corruption cases involving public officials.

Lam stressed that she was never pressured to back off in investigating Cunningham or any other Republicans.

"I didn't receive any communications from the department about [the firing] being related to the investigation," she said.

Speaking on behalf of the Justice Department, William E. Moschella, principal associate deputy attorney general, defended all the firings.

He told a House subcommittee that, although Lam is a "distinguished prosecutor," she failed in two key areas: gun crime and immigration.

"Quite frankly, the gun-prosecution numbers were at the bottom of the list," Moschella said. "She only beat out Guam and the Virgin Islands."

On immigration, "her numbers for a border district just didn't stand up," he added.

Moschella strenuously denied that Lam's ouster had anything to do with the Cunningham prosecution.

Dramatic Testimony
Perhaps the most dramatic testimony Tuesday came from one of the other fired prosecutors, Iglesias, who gave a detailed account of a phone call from Sen. Pete Domenici, R-N.M., inquiring about the status of an corruption investigation of Democratic officials just weeks before the November election. Iglesias told senators that Domenici asked him whether any indictments in the widely publicized investigation would be filed before November.

When Iglesias replied in the negative, he said Domenici told him, "I'm very sorry to hear that," then abruptly hung up.

"I felt leaned on," Iglesias said Tuesday. "I felt pressure to get these matters moving."

Domenici has admitted calling Iglesias but denied asking any inappropriate questions about the case.

Another lawmaker, Rep. Heather Wilson, R-N.M., also conceded that she called Iglesias about the same investigation.

The ousted U.S. attorney for Washington state, McKay, asserted during his testimony to the House subcommittee that an aide to Rep. Doc Hastings, R-Wash., once called him about the disputed 2004 gubernatorial election there, during which Republicans made allegations of voter fraud. A Democrat, Chris Gregoire, won the election after two recounts.

McKay said he immediately ended the conversation before the aide could elaborate on the nature of the call.

"He tried to advance the conversation, and I cut him off," McKay said.

At a Senate committee hearing, the former Arkansas U.S. attorney, Cummins, said a senior Justice Department official, Mike Elston, had warned him not to speak to the press after his firing.

Cummins said he passed on that warning to Lam and the others in an e-mail that was made public Tuesday.

Cummins wrote that he believed the Justice Department wanted to warn the fired attorneys that, if they spoke out, the department would be forced to "somehow pull their gloves off and offer public criticisms" of their records.

Justice Department Brian Roehrkasse responded in a statement Tuesday that Elston "did not tell any U.S. attorney what they should or not say publicly about their departure, and any suggestion that such a conversation took place is ridiculous and not based on fact."

Posted 5:00 PM by Howard Bashman

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March 05, 2007

COMPROMISE COULD ADD JUDGESHIP
9th Circuit Would Gain One; D.C. Would Lose One

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - The overloaded 9th U.S. Circuit Court of Appeals finally could get an additional judgeship, thanks to a proposal under debate in the Senate.

Sen. Jon Kyl, R-Ariz., came up with the idea to switch a long-vacant judgeship from the U.S. Court of Appeals for the District of Columbia Circuit to the 9th Circuit, which has the highest caseload in the country and has been stuck with 28 judges for 23 years.

Low Caseload
The Senate Judiciary Committee approved his proposal last week, with the support of Sen. Dianne Feinstein, D-Calif., who has long called for additional judgeships.

Many senators have complained in the past that the District of Columbia Circuit does not need the 12 seats it has had since 1984 because the court has a relatively low caseload. The 12th seat has been vacant for a decade.

Common Sense
"It makes sense to take a judgeship from where it is needed least and put it where it is needed most," Feinstein said Friday.

The spirit of bipartisan cooperation is made possible by the simple fact that the proposal makes a lot of common sense, said 9th Circuit expert Arthur Hellman, a law professor at the University of Pittsburgh.

"Quite apart from the politics of the situation, no one could seriously dispute that the seat is much more needed in the 9th than in the D.C. Circuit," he said.

There are 523 filings per judge in the 9th Circuit compared with 107 per judge in the District of Columbia Circuit, according to the Administrative Office of the Courts.

The 9th Circuit has labored under an ever-increasing caseload without getting any additional judgeships since 1984.

The circuit has 28 active judgeships, one of which is vacant.

Efforts to add judgeships in recent years were stymied by the Republican-controlled Congress, which refused to add judges unless the court was split into two circuits.

Now under Democratic control, Congress is not expected to pursue that option, but those pushing for extra judges are well aware that a Republican president will nominate any new judges added in the next two years.

Even if the proposal becomes law, it is unlikely to stop Feinstein from pushing for more seats.

Most experts, and some judges on the court, believe the circuit needs at least seven new seats in order to effectively deal with its caseload.

Chief Judge Mary Schroeder could not be reached for comment Friday.

The 29th seat might resolve a dispute between Feinstein and the White House over the existing vacancy, which she maintains should go to a Californian.

The White House initially earmarked the seat for an Idaho-based judge but has withdrawn its nominee, William G. Myers III.

"Now Bush can appoint one judge from California and one from Idaho," Hellman said. "That might satisfy Feinstein."