EXCLUSIVE: DOJ Official Ignored White House

March 26, 2007 — -- The firestorm over the fired U.S. attorneys was sparked last month when a top Justice Department official ignored guidance from the White House and rejected advice from senior administration lawyers over his testimony before the Senate Judiciary Committee.

The official, Deputy Attorney General Paul McNulty, ignored White House Counsel Harriet Miers and senior lawyers in the Justice Department when he told the committee last month of specific reasons why the administration fired seven U.S. attorneys -- and appeared to acknowledge for the first time that politics was behind one dismissal.

McNulty's testimony directly conflicted with the approach Miers advised, according to an unreleased internal White House e-mail described to ABC News. According to that e-mail, sources said, Miers said the administration should take the firm position that it would not comment on personnel issues.

Until McNulty's testimony, administration officials had consistently refused to publicly say why specific attorneys were dismissed and insisted that the White House had complete authority to replace them. That was Attorney General Alberto Gonzales' approach when he testified before the committee in January.

But McNulty, who worked on Capitol Hill 12 years, believed he had little choice but to more fully discuss the circumstances of the attorneys' firings, according to a a senior Justice Department official familiar the circumstances. McNulty believed the senators would demand additional information, and he was confident he could draw on a long relationship with New York Sen. Chuck Schumer, a Democrat, in explaining in more detail, sources told ABC News.

In doing so, however, McNulty went well beyond the scope of what the White House cleared him to say when it approved his written testimony the week before the hearing, according to administration sources closely involved in the matter.

The controversy over the firings has prompted calls for Gonzales' resignation and led to the resignation of one senior Justice Department official. Another Department official, Monica Goodling, announced Monday she would refuse to testify in front of Congress. Sources said Goodling was informed that McNulty had tried to blame her for deficiencies in his testimony. Reached for comment Monday night, McNulty said he is not considering resigning.

"I have no plans to step down," McNulty said. "I intend to cooperate with the Committee in anyway they choose."

Senators now are focusing on the part of McNulty's testimony that appeared to directly contradict the earlier testimony by Gonzales. A source close to McNulty said he had believed he was not contradicting Gonzales's testimony and was, in fact, conveying the same message as his boss. But Senators immediately pounced on how McNulty characterized the firings and homed in on what they saw as inconsistencies.

"That's what lit the fuse," said Arizona Sen. Jon Kyl, a senior Republican on the Judiciary Committee. "They should've expected pushback -- not only from the U.S. attorneys but from their supporters once they characterized the reason as negative performance, inadequate performance."

McNulty's testimony also prompted the U.S. attorneys to aggressively defend themselves and their work and angered senators demanding to know what role politics played in the process.

Gonzales had testified before the Judiciary Committee on Jan. 18 that the administration had evaluated the performance and policies of each of the U.S. attorneys' offices, but he did not suggest that any of the fired attorneys were incompetent. Under questioning by the senators, Gonzales flatly rejected the idea that any of the attorneys had been fired for "political reasons."

'Performance-Related' Remark Adds Fuel to Controversy

But in his testimony just over two weeks later, McNulty suggested otherwise. He said Bud Cummins, the U.S. attorney in Arkansas, was not fired because of policy or management issues but instead to turn the job over to someone else: Tim Griffin, a former aide to White House adviser Karl Rove, replaced Cummins.

McNulty also stressed that the other U.S. attorneys were fired for what he described as "performance-related" reasons, suggesting the prosecutors had not been up to par. But that appeared to conflict with assurances Gonzales and other Justice Department officials had made about the U.S. attorneys to senators from the respective states, including Kyl.

Gonzales had told Kyl privately that the administration was dismissing Paul Charlton, the U.S. attorney in Arizona whom the senator had personally recommended, because of disagreements over policy. Charlton had crossed paths with the Justice Department over his reluctance to seek the death penalty in some cases, as well as his insistence that the FBI should record confessions.

But McNulty's testimony instead suggested Charlton and the others were not performing well.

That key aspect of McNulty's testimony, and his insistence on using the "performance-related" phrase, came over the objection of other attorneys in the Justice Department who helped prepare him for his appearance before the Senate Judiciary Committee, according to a knowledgeable source who spoke exclusively to ABC News. But a source close to McNulty said he believed he was merely mirroring what Gonzales had said.

"The initial plan had simply been to deny the existence of improper motives. People thought that should be enough," said another source familiar with the discussions that day. "McNulty argued vigorously the other way. He said DOJ had to give these guys on the Hill an explanation."

In the prep session, which occurred in the Justice Department the afternoon before he testified, McNulty emphasized that he had a longstanding friendship with Schumer and that he could smooth things over with the senior Democrat.

The two met when Schumer was a New York representative and McNulty was counsel to the House Subcommittee on Crime, and later chief counsel to the House majority leader. McNulty became deputy attorney general in March 2006, after serving as the U.S. attorney for the Eastern District of Virginia.

Others in the room for the Feb. 5 prep session, including senior lawyer David Margolis, believed McNulty should merely assure Congress the administration had a "reasoned basis" for the decision but not specify what it was. McNulty strongly disagreed, the source said.

Also in the meeting were Department officials Kyle Sampson, Monica Goodling, Bill Mercer, Richard Hertling and Michael Elston. Sampson, Gonzales's chief of staff, has since resigned and has agreed to testify Thursday before the Judiciary Committee. Goodling said Monday she would assert her constitutional right against self-incrimination and refuse to testify.

"[McNulty] thought he could explain it was performance-related and Schumer would accept that. He touted his relationship with Schumer, and he said you have to be reasonable with these guys and give them the information," the source said. "No one was willing to second guess McNulty."

At one point, one of the lawyers asked about Cummins's dismissal and how McNulty could explain that using the "performance-related" phrase, the source said. McNulty said he would "just explain the White House had a candidate for the job," the source said.

"That opened up the entire thing," said a source with knowledge of the meeting. "The phrase 'performance-related' is where all this goes wrong."

Instead of accepting those explanations, however, Schumer aggressively challenged McNulty during the hearing over perceived inconsistencies in his testimony and that of Gonzales.

"This is the first we've heard of this," Schumer said incredulously, moments after McNulty revealed that Cummins was fired so Griffin could step in.

Schumer then pressed McNulty repeatedly about why Cummins and other U.S. attorneys were fired, and he quoted directly from Gonzales's testimony, when the attorney general told the committee "we would never, ever make a change in the U.S. attorney position for political reasons."

"Then we have now, for the first time, we learn that Bud Cummins was asked to leave for no reason and we're putting in someone who has all kinds of political connections," Schumer told McNulty. "Do you believe that firing a well-performing U.S. attorney to make way for a political operative is not a political reason?"

"Yes," McNulty responded, "I believe it is not a political reason."

"OK," Schumer said. "Could you try to explain yourself there?"

McNulty began listing Griffin's qualifications and his experience serving in Iraq, when Schumer interrupted him to ask whether Griffin was "the best person possible."

"I didn't say the best person possible," McNulty said. "I said well-qualified."

Schumer immediately hit back, referring to McNulty's opening statement.

"I don't want to pick here, with my friend Paul McNulty," Schumer said. "Quote, from your testimony: 'For these reasons, the department is committed to having the best person possible discharging the responsibilities of that office at all times, in every district.'"

"I find it hard to believe that Tim Griffin was the best person possible," Schumer told McNulty.

Still, McNulty left the hearing believing he'd accomplished his mission of pacifying Schumer, as Sampson reported the next morning.

"Paul reports this morning that: He's hearing good reports from the committee," Sampson wrote. "In particular, Sen. Schumer's counsel told him that the issue has basically run its course; that they needed to get a little more information from us (i.e., the closed-door briefing that Paul promised them re the reasons for the resignations), but that will be it."

Justice Spokesman: Gonzales 'Extremely Upset' by McNulty Testimony

But Gonzales, who was in South America that day, was furious when he read news stories about McNulty's testimony.

"The attorney general is extremely upset with the stories on the US attys this morning," wrote Brian Roehrkasse, a Justice Department spokesman, in an e-mail to Sampson and Tasia Scolinos, the chief spokeswoman for the department. "He also thought some of the DAG's statements were inaccurate."

Scolinos responded to the e-mail that she, too, "didn't think the hearing had gone all that well."

Roehrkasse suggested in his e-mail that the department offer a "clearly worded op-ed" and reach out "to [editorial] boards who will write in coming days" to help straighten out the situation.

Gonzales then wrote an editorial that ran in USA Today in which he tried to reconcile McNulty's testimony with his own and to make clear that McNulty's "performance-related" phrase should not be interpreted to mean a negative or inadequate performance by the attorneys.

"To be clear, it was for reasons related to policy, priorities and management -- what have been referred to broadly as "performance-related" reasons -- that seven U.S. attorneys were asked to resign last December," Gonzales wrote.

But it was too late. The U.S. attorneys who had initially told the administration they would quietly resign began to speak out publicly and defend themselves.

"He had to defend his reputation," Kyl said of Charlton. "So did the rest of them."

At Schumer's insistence, McNulty went back to Capitol Hill Feb. 14, to meet privately with the Judiciary Committee and provide more information on each firing. But his carefully crafted responses -- trying to give minimal information without disclosing much, left senators on both sides of the aisle either angry or frustrated, and according to those with knowledge of the meeting, only fanned the flames of the growing firestorm.

A source close to McNulty said the deputy attorney general believes has Gonzales' full confidence. McNulty is "upset" with Sampson's preparation and believed he was not fully briefed on the creation of plan to fire the U.S. attorneys, the source. McNulty believes Sampson will have to explain that directly to senators when Sampson testifies Thursday, the source said.