Former George Bush and former New Mexico Republican Sen. Pete Domenici

Former Sen. Domenici Receives Subpoena in Probe Over U.S. Attorney Firing

WASHINGTON (By Jason Leopold, Public Record) February 12, 2009 — A federal grand jury has subpoenaed documents of former New Mexico Republican Sen. Pete Domenici as part of the panel’s criminal investigation into the politically motivated firings of U.S. Attorneys in December 2006, according to an Associated Press report.

Last week, The Public Record reported Nora Dannehy, the special prosecutor appointed last year by former Attorney General Michael Mukasey to probe whether Bush administration officials and others committed crimes related to their roles in the firings of the federal prosecutors, was scrutinizing Domenici and his ex-chief of staff Steve Bell’s role in the U.S. Attorney scandal.

Moreover, according to legal sources close to the grand jury investigation, Dannehy is said to be building an obstruction of justice, perjury and conspiracy case against former Attorney General Alberto Gonzales and his onetime deputy, Paul McNulty, related to their involvement in the U.S. Attorneys firings.

According to the Associated Press report, on Thursday Dannehy is expected to interview Scott Jennings, a former aide to George W. Bush’s political adviser Karl Rove, regarding his role and of other White House and Justice Department officials in the firings.

Domenici and Bell were deeply involved in the firing of New Mexico U.S. Attorney David Iglesias. Dannehy is probing whether Domenici and Bell pressured Iglesias to secure indictments against Democrats prior to the November 2006 midterm elections, according to legal sources knowledgeable about Dannehy's probe.

"The grand jury subpoena for some of Domenici's records was confirmed by two private attorneys who spoke on condition of anonymity because they were not representing the former senator," the Associated Press reported. "Domenici's attorney, K. Lee Blalack, declined to comment about what he described as Ms. Dannehy's review."

Iglesias declined to comment about the latest developments in Dannehy's investigation.

A report prepared jointly by Department of Justice Inspector General Glenn Fine and H. Marshall Jarrett, head of the DOJ's Office of Professional Responsibility, last September “clearly found there were performance related reasons for the removal of most of these U.S. attorneys and with respect to the remainder, they didn't have enough information to draw definite conclusions.”

Fine and Jarrett's joint report concluded Iglesias’s firing was the most “controversial” of the nine and his dismissal was “engineered” by former New Mexico GOP lawmakers Sen. Pete Domenici, Rep. Heather Wilson and Rove over complaints about Iglesias’s refusal to secure indictments in voter fraud cases and in a public corruption case. Neither Domenici nor Bell cooperated with the DOJ's internal investigation.

According to Fine and Jarrett's report, Bell, Domenici's former chief of staff “began complaining about Iglesias to the White House sometime in 2005.”

Bell contacted Bush's former Chief of Staff Josh Bolten and asked him whether the White House could intervene and have Iglesias removed, according to Fine and Jarrett's report.

Bolten did not cooperate with the DOJ watchdogs' probe. It's unknown whether Special Prosecutor Dannehy has spoken to Bolten. The DOJ report said Bolten played a role in at least one of the nine U.S. attorney firings.

Bolten and former White House Counsel Harriet Miers, who also refused to cooperate with the DOJ probe, were subpoenaed by Congress last year for documents and testimony about their roles as well as the White House's involvement in the U.S. Attorney firings.

But Miers and Bolten were advised by Bush to ignore congressional subpoenas. Bush claims his former advisers have "absolute immunity" and do not have to respond to subpoenas or provide documents about the prosecutor firings, said extends beyond his presidency, according to a letter his White House Counsel sent to Bolten and Miers last month. Next week, President Barack Obama's Justice Department will file a legal brief in an appellate court stating whether they will back Bush's broad claims of executive power claims.

Miers, according to the DOJ's internal investigation, was involved in pushing out Bud Cummins, the U.S. Attorney for the Eastern District of Arkansas.

Although Miers’ refusal to cooperate “hindered” the 18-month investigation, Fine and Jarrett were able to piece together enough evidence to conclude that Miers likely played a role in the firing of John McKay, U.S. Attorney for the Western District of Washington.

According to the report, McKay’s firing was due, in part, to the fact he would not convene a federal grand jury and secure indictments of alleged voter fraud in the 2004 governor's race in the state in which Democrat Christine Gregoire defeated Republican Dino Rossi by a margin of 129 votes.

It's unknown whether Dannehy, who has subpoena power, has spoken to Miers or whether Dannehy has obtained internal White House documents from Bolten and Miers to assist her probe.

The DOJ report, however, did indicate Bush was aware of the partisan calls to fire Igleias. The report said Bush and Rove “spoke with Attorney General Gonzales in October 2006 about their concerns over voter fraud in three cities, one of which was Albuquerque, New Mexico,” and concerns Domenici had about Iglesias’s job performance.

“There is conflicting evidence about exactly what was communicated to Gonzales, and what the Department’s response was to these concerns,” according to the report. “Gonzales testified that he recalled mentioning his conversation with Rove to his former Chief of Staff Kyle Sampson and asking him to look into the matter. Sampson told congressional investigators that he recalled that after the removals became public, Gonzales told him he recalled the President telling him in October 2006 Domenici had concerns about Iglesias.”

Bell, Domenici's former chief of staff, also lodged his complaints about Iglesias with Scott Jennings, Deputy Director of the White House Office of Political Affairs. Jennings told DOJ investigators “shortly after joining the White House in early 2005, he received criticism of Iglesias’s performance as U.S. attorney from Bell”

“Jennings said Bell told him on a periodic basis he was unhappy with Iglesias’s response to complaints about voter fraud, among other issues, and the White House should replace him. Jennings said he passed that information along to his immediate superiors at the time, White House Director of Political Affairs Sara Taylor and Tim Griffin.”

On Nov. 7, 2006, the day of the midterm elections, Bell emailed Rove about problems with ballots at a precinct in New Mexico and said, “we worry about the U.S. Attorney here.”

Rove responded to Bell’s Nov. 7, 2006, email by saying Domenici should “call the Attorney General about this.”

According to the report, Iglesias’s name was placed on a termination list around this time.

“It appears Gonzales's former chief of staff Kyle Sampson put Iglesias on the removal list sometime after October 17, 2006 based largely on complaints about Iglesias’s handling of certain voter fraud and public corruption investigations in New Mexico,” according to the report. “Sampson said he knew New Mexico Republican Senator Pete Domenici had called Attorney General Gonzales on three separate occasions in 2005 and 2006 to register complaints about Iglesias’s performance."

Mark Paoletta, an attorney representing Jennings, told the AP Jennings, the former White House deputy director of political affairs, an office once headed by Karl Rove, is expected to be interviewed about the U.S. attorney firings at the Justice Department Thursday.

"In her efforts to gather all of the facts, the special prosecutor asked to interview Scott," Paoletta told the AP. "Scott is happy to cooperate to the best of his ability, as he has done with all probes to date. It is my understanding that Scott is not a target in this investigation."

Last April, Domenici received a "public letter of qualified admonition" from the Senate Ethics Committee over a phone call he made to Iglesias about the timing of indictments prior to the November 2006 midterm elections.

Domenici, who said said had decided to retire from the Senate because he was suffering from a brain disease known as frontotemporal lobar degeneration, or FTLD, a deterioration of brain tissue that can lead to personality changes, difficulty with speech and dementia, was named Monday as a senior fellow with the Bipartisan Policy Center.

In a news release issued Monday, the organization said Domenici will "provide counsel on all Bipartisan Policy Center initiatives, primarily working with the National Commission on Energy Policy (NCEP) focusing on nuclear and non-carbon forms of energy, and the National Transportation Policy Project (NTPP)."

According to the group's website, the center "was established in 2007 by former Senate Majority Leaders Howard Baker, Tom Daschle, Bob Dole and George Mitchell to provide a forum where tough policy challenges can be addressed in a pragmatic and politically viable manner. We seek to develop policy solutions that make sense for the nation and can be embraced by both parties," according to the group's website.

Special Prosecutor Inching Closer to Gonzales

Meanwhile, as reported by The Public Record last week, Dannehy is said to be collecting evidence that suggests Gonzales may face obstruction of justice, perjury and conspiracy charges over the federal prosecutor firings.

Legal sources knowledgeable about the grand jury probe said Kyle Sampson, Gonzales's former chief of staff has provided damaging information about his former boss to Dannehy about Gonzales's role in the dismissals. Sampson is said to have told the special prosecutor that Gonzales was far more engaged in the attorney firings than he had previously disclosed to Dannehy, in Congressional testimony and in interviews with Justice Department watchdogs.

Sampson, these sources said, may also be facing obstruction of justice charges and the sources familiar with his interviews with Dannehy said he had provided detailed information about Gonzales’s role in the firings in hopes of staving off the possibility of criminal charges he may face for his role in the dismissals. The legal standard for an obstruction of justice, conspiracy, and perjury charges is specific intent.

With that in mind, the legal sources added although Dannehy has collected voluminous evidence over the past four months that would appear to suggest Gonzales and other Bush administration officials may have committed crimes related to the attorney firings ― including perjury and conspiracy ― it's also possible criminal charges won't be filed if she believes she cannot prove intent.

However, Sampson is said to have provided Dannehy with an important piece of evidence that bolstered her case against Gonzales: the former Attorney General was aware of and helped create a list of federal prosecutors to fire.

In testimony before Congress in April 2007, Gonzales said he played no role in creating such a list and was unaware anyone in his office had put such a list together.

"I have searched my memory," Gonzales said, in response to a question by Sen. Jeff Sessions (R-Alabama) about one meeting Gonzales attended in November 2006 when he discussed the firings. "I have no recollection of the meeting.... I don't remember the contents of this meeting."

But Sampson is said to have told Dannehy Gonzales met regularly with White House officials in the Office of Political Affairs, headed by George W. Bush's former senior adviser Karl Rove, about the identities of the federal prosecutors that should be placed on the list and subsequently fired.

Several legal sources said Sampson described Gonzales as "very hands on" with regard to the U.S. Attorney firings. However, one snag Dannehy has apparently hit is proving any of the prosecutor firings were specifically intended to thwart public corruption cases, according to legal sources familiar with her probe. Carol Lam, the U.S. Attorney for the Southern District of California was in the midst of a corruption investigation involving associates of Randy “Duke” Cunningham, Republican congressman from San Diego, when she was fired.

Gonzales’s attorney, George Terwilliger, did not return calls for comment Wednesday afternoon. Neither Sampson nor his attorney returned numerous calls for comment over the past week. Gonzales resigned as Attorney General in the summer of 2007.

Additionally, Dannehy is said to have closed in on former Deputy Attorney General Paul McNulty and apparently has information that shows he allegedly perjured himself during testimony before Congress. McNulty testified before Congress in February 2007 that the prosecutor firings were "performance related," an allegation he knew to be untrue. Documents released by the Justice Department showed that Gonzales and McNulty participated in an hour-long meeting with Sampson and three other officials on Nov. 27, 2006 — about two weeks before the U.S. Attorneys were fired ― to review the plan to fire them.

However, legal sources knowledgeable about Dannehy's probe said McNulty is unlikely to face any criminal charges about his role in the U.S. attorney firings.

Gonzales has continued to downplay the seriousness of the prosecutor firings.

In an interview last week with CNN, Gonzales characterized the scandal and the public’s focus on it as “little negatives” and claimed, falsely, that a Justice Department watchdog report concluded a majority of the dismissals were for “performance related reasons.”

Gonzales told CNN the report prepared by Inspector General Glenn Fine and H. Marshall Jarrett, head of the DOJ's Office of Professional Responsibility, “clearly found there were performance related reasons for the removal of most of these U.S. attorneys and with respect to the remainder, they didn't have enough information to draw definite conclusions.”

In an interview last week, Iglesias said Gonzales “needs to shoot straight with the American people."

"Alberto Gonzales is showing the same remarkable disengagement he was criticized for by the Justice Department's Inspector General's report,” Iglesias told me. “This time, he is disengaged from the official findings of fact. Far from being "little negatives", despite the good work that was done by the Justice Department, the Inspector General's Report officially found illegal political hirings of attorneys and immigration judges, an out of control Civil Rights section, and improper firings of U.S. Attorneys, myself included.

“The report, conducted by non-partisan, career investigators established our firings were "fundamentally flawed" and rejected "performance-related" reasons for seven out of nine U.S. Attorneys. In my case, the report examined and rejected every reason give for my firing as "disingenuous after the fact rationalizations." The Justice Department was a train wreck under the failed leadership of Gonzales.”

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