According to sources inside the Department of Justice, a series of files and documents that could prove critical to the congressional investigation into the firings of eight U.S. Attorneys remain in the office of the Deputy Attorney General (DAG) and the Executive Office for the U.S. Attorneys (EOUSA), which is technically overseen by the DAG office. These documents have not been requested by congressional investigators, and the DAG and EOUSA staff have not let it be known to Congress that they exist.
The files include overviews and evaluations of at least a dozen current and now-former U.S. Attorneys, which were prepared by DAG and EOUSA staff to brief Deputy Attorney General Paul McNulty and his chief of staff Michael Elston. Other documents are briefing materials that were prepared by both offices for an early December meeting in Washington, D.C. for all 93 U.S. Attorneys. The briefing materials, which were placed in briefing binders provided to both Attorney General Alberto Gonzales and Deputy Attorney General McNulty, provided the reader with an overview of each U.S. Attorney attending, along with information about each USA's status with the Department.
"In some cases, the briefing material made clear that the U.S. Attorney in question was one that might be on his or her way out," says a source in the DAG's office, who has seen some of the documents. "The purpose of the material was so the Attorney General or Paul wouldn't say anything out of turn or to tip their hands."
The source was uncertain how closely either man reviewed the binders, though generally each is encouraged to review the material. During the conference in early December, both Gonzales and McNulty met with the U.S. Attorneys, including those seven who were fired later that same week via a phone call.
The files may provide answers to questions a number of Democrats were asking former Gonzales chief of staff Kyle Sampson last week during his testimony before the Senate Judiciary Committee. For more than seven hours, Sampson insisted that he served as the "aggregator" of the list of U.S. Attorneys being considered for removal. Sampson rarely identified those who provided him with names for the list, but DOJ sources say that the three primary contributors were McNulty, Elston and EOUSA career attorney David Margolis.
"Margolis was critical because he, among others, oversaw the EARS process for U.S. Attorneys around the country," says another DOJ source. EARS stand for Evaluation and Review Staff. "He'd know which USAs were vulnerable and which should be placed on a list to be pushed out."
"It's mind-boggling to many of us that Sampson declined to push some of the others involved in this mess into the spotlight," says another DOJ staffer. "Everyone here understands who was involved and who should be taking the heat. Why the Senate isn't moving in that direction is mystifying to many of us."
At one point in his testimony, Sampson described how one former U.S. Attorney was added to the list. He testified that after a November 27th meeting with the Gonzales, McNulty and Elston, McNulty pulled him aside and recommended that the name of U.S. Attorney Kevin Ryan be placed on the list. Ryan had never been considered in danger of being fired, was listed as a "top performer," and had been asked not to resign earlier that year by then Associate Attorney General Robert McCallum, when he learned that Ryan was looking to leave for a private sector job.
"That Kyle would add Ryan to the list so readily shows just how deep into this McNulty and his staff were," says a DOJ attorney in the criminal division. "The Judiciary Committee kept asking about files and documents, well, they weren't with Kyle, he just kept the list. Others had the files, but the committee just isn't asking the right questions."