Myths and falsehoods in the U.S. attorney scandal

In December 2006, the Bush administration fired seven U.S. attorneys, having fired one previously. As Media Matters for America has previously noted, three of the dismissed prosecutors were, according to a March 1 Washington Post article, “conducting corruption probes involving Republicans” when they were asked to step down, while others have claimed that they felt pressured to speed up or initiate investigations targeting Democrats. Many news reports have suggested political interference in the justice system, and on March 6, both the House and Senate began hearings on the attorney's dismissals.

In reporting on the scandal, media figures have advanced several false, misleading, or baseless claims about the attorneys' dismissals:

1. Attorneys were dismissed for “performance-related” issues

On February 6, then-deputy attorney general Paul McNulty testified before the Senate Judiciary Committee that the dismissals were “performance-related,” despite conceding in the same testimony that performance played no role in at least one dismissal, that of H.E. “Bud” Cummins III. Indeed, McNulty testified that Cummins' resignation was forced “to provide a fresh start with a new person in that position.” This “new person” was J. Timothy Griffin, a former aide to White House senior adviser Karl Rove who replaced Cummins in December 2006. In a recently released December 19, 2006, email, D. Kyle Sampson, then-chief of staff to Attorney General Alberto R. Gonzales, stated: “Getting him [Griffin] appointed was important to Harriet, Karl, etc.” -- a reference to Rove and then-White House counsel Harriet Miers. Nevertheless, news outlets, such as Fox News' Special Report with Brit Hume, uncritically repeated unnamed Justice Department officials'* claim that the firings were all “performance-related.” Other media figures, such as CBS' Jim Axelrod, have simply reported that “Democrats say” that “the U.S. attorney in Arkansas was fired ... to open a job for a Karl Rove deputy,” while making no mention of the substantial evidence supporting this allegation.

2. Bush dismissals comparable to Clinton's '93 dismissals

Several media outlets have compared the Bush administration's controversial dismissals of eight U.S. attorneys to President Clinton's dismissal of almost all U.S. attorneys upon taking office in 1993. Clinton's firing of the prosecutors was highlighted March 13 at, the website of Internet gossip Matt Drudge. Over the next 24 hours, several media outlets -- including Fox News, The Wall Street Journal, The Washington Times, and MSNBC -- echoed the unfounded comparison between the Clinton and Bush dismissals.

In fact, while both Clinton and Bush dismissed nearly all U.S. attorneys upon taking office following an administration of the opposite party, The Washington Post reported in a March 14 article that “legal experts and former prosecutors say the firing of a large number of prosecutors in the middle of a term appears to be unprecedented and threatens the independence of prosecutors.”

A March 13 McClatchy Newspapers article -- headlined “Current situation is distinct from Clinton firings of U.S. attorneys” -- further noted that "[m]ass firings of U.S. attorneys are fairly common when a new president takes office, but not in a second-term administration." The article added that “Justice Department officials acknowledged it would be unusual for the president to oust his own appointees.”

3. Clinton fired Arkansas U.S. attorney to avoid Whitewater investigation

In a March 14 editorial, The Wall Street Journal suggested that former President Bill Clinton “dismiss[ed] ... all 93 U.S. Attorneys” upon taking office in 1993 and subsequently appointed " 'Friend of Bill' Paula Casey" as the U.S. attorney for the Eastern District of Arkansas in order to avoid an investigation into “the Clintons' Whitewater dealings.” Following the Journal editorial, co-host Sean Hannity made a similar suggestion on the March 14 edition of Fox News' Hannity & Colmes. Hannity baselessly suggested that Clinton “fire[d] the Little Rock U.S. attorney” in 1993 because he had launched an “investigation into ... the Whitewater deal.” In fact, Casey's Republican-appointed predecessor, Charles A. Banks, had refused to pursue the Whitewater matter, reportedly in defiance of pressure from George H.W. Bush administration officials in search of a pre-election issue with which to tar challenger Clinton.

Moreover, as Media Matters has documented, the extensive investigation into Whitewater -- initiated shortly after Clinton took office -- ultimately led the independent counsel to close the probe without charging the Clintons with any wrongdoing.

4. McKay shirked responsibility to investigate voter fraud allegations

The March 14 Journal editorial also asserted that the Bush administration dismissed former U.S. attorney John McKay because he had “declined” to investigate allegations of voter fraud in the 2004 Washington state gubernatorial race “apparently on the grounds that he had better things to do.” In fact, McKay testified that he did not convene a grand jury to investigate the matter because “there was no evidence of voter fraud.”

5. Under new law, Bush still cannot appoint interim U.S. attorneys indefinitely

On the March 13 edition of Fox News' Special Report with Brit Hume, National Public Radio's Mara Liasson falsely claimed that under new rules governing the appointment of interim U.S. attorneys, the Bush administration could appoint people to those positions, “but they couldn't stay there” without Senate confirmation. She added that “Congress could have pulled the plug on every one of them -- every one of the new ones if they didn't like them.” In fact, a law enacted in March 2006 as part of the renewal of the USA Patriot Act does allow an administration-appointed “interim” U.S. attorney to serve indefinitely without Senate confirmation -- a change that lies at the heart of the current U.S. attorney scandal. If the president does not nominate a permanent replacement for his “interim” appointee, the appointee could serve at least until the end of the president's term in office, thus denying Congress the opportunity to “pull the plug” on Bush's appointee.

6. Since the president has the authority to fire any or all U.S. attorneys, the administration's only problem is a failure to be “forthcoming”

On the March 15 broadcast of ABC's World News, legal correspondent Jan Crawford Greenburg said, “Of course, the president can fire U.S. attorneys when he chooses” and suggested the only “problem for the White House ... and the Justice Department” is that “the White House hasn't been forthcoming with how this whole plan” to dismiss specific U.S. attorneys “began.” But the president's authority to fire U.S. attorneys per se is not in question, and possible misconduct goes beyond simply a failure on the part of the administration to be “forthcoming.” For example, regarding the alleged pressure on former New Mexico U.S. attorney David C. Iglesias by Sen. Pete V. Domenici (R-NM) and Rep. Heather Wilson (R-NM) to expedite a corruption investigation of state Democrats, according to the Washington Post, “Legal experts say it violates congressional ethics rules for a senator or House member to communicate with a federal prosecutor regarding an ongoing criminal investigation.” Second, Gonzales and McNulty may have given false testimony to Congress in January. According to Citizens for Responsibility and Ethics in Washington (CREW), Department of Justice (DOJ) “officials have testified before Congress that the U.S. Attorneys were asked to resign for performance related reasons, that the White House was minimally involved in the firings and that the Department was in no way attempting to evade the confirmation process for new U.S. Attorneys.” CREW alleged that Sampson “knew that he was causing DOJ officials to make inaccurate statements to Congress” when those officials testified before Congress about the attorneys' dismissals, which CREW claims could violate federal prohibitions against lying to Congress.

This item originally stated that Special Report with Brit Hume had uncritically reported McNulty's assertion that all the firings were "performance-related." However, in the item linked to, Special Report attributed this claim to "[o]fficials at the Department of Justice," not McNulty. The item noted that the claim made by these officials was at odds with McNulty's testimony that Cummins' firing was not based on "performance." Media Matters for America regrets the error.