Bush Appointee Could Thwart Congress

While Congress has threatened to hold senior Bush administration officials in contempt for refusing to comply with subpoenas pertaining to their investigation into the controversial firing of nine US attorneys, enforcing such criminal contempt charges would fall to Jeffrey Taylor, interim US attorney for the District of Columbia. According to Justice Department documents, Taylor took part in behind-the-scenes discussions involving the US attorneys who were fired.

That raises questions about whether Taylor, who would be in a position to decide whether to turn the matter over to a grand jury, has a conflict of interest and would be forced to recuse himself from the case.

According to DoJ documents, Taylor worked closely with Justice Department officials who were planning the US attorney purge. Before being appointed to his current position, Taylor served as counsel for Attorney General Alberto Gonzales, one of the main targets of the ongoing Congressional investigation. Email communications between Taylor and Kyle Sampson, then chief of staff for the attorney general, and William Mercer, former acting associate attorney general, show that Taylor worked closely with Sampson and Mercer while the two men were planning the firings. Specifically, the emails show that Taylor was asked to assist Sampson and Mercer when the DoJ came under fire for alleged lack of enforcement of illegal-immigration laws. A lack of illegal-immigration enforcement was later used as a rationale for the removal of Carol Lam, former US attorney for the Southern District of California.

The DoJ has released only two emails sent by Taylor and only one that was directly addressed to him, leaving Taylor's exact role in planning the attorney purge unclear. In an email, Mercer asks for Taylor's "thoughts" about an email exchange between DoJ officials regarding an inquiry by Senator Diane Feinstein (D-California) regarding illegal-immigration prosecutions. If Taylor responded by email, that document was not made public. DoJ did not return multiple calls for comment on this issue, and has not specified how many relevant documents it is withholding

If Congress votes to hold officials involved in the US attorney firings in contempt, Taylor, as the interim US attorney for Washington, DC, would be responsible for deciding whether to convene a grand jury to rule on Congress's charge. If Taylor decided not to enforce contempt charges issued by Congress, the investigation could grind to a halt, leaving questions about the motives behind the US attorney firings unresolved.

Taylor's close professional relationship with the Bush administration and the attorney general, and Taylor's potential role in the firing plan, raise a potential conflict of interest issue in this situation. That issue could prompt Taylor to recuse himself from involvement. According to Ohio State University law professor Peter Shane, Taylor "is obligated under Department of Justice regulations at least to consider recusal and, if he was involved in the purge, recusal would be mandatory."

Shane pointed to the US Attorney Manual, which covers recusals: "If a conflict of interest exists because a United States Attorney has a personal interest in the outcome of the matter or because he has or had a professional relationship with parties or counsel, or for other good cause, he should recuse himself. The requirement of recusal does not arise in every instance in which he has had a professional relationship with parties or counsel, but only where a conflict of interest exists ... [w]here there is the appearance of a conflict of interest, the United States Attorney should consider a recusal."

Taylor's spokesperson has said previously that because Congress has not yet held anyone in contempt, "it is premature to comment on the issue of recusal." Taylor's office failed to respond to detailed questions about Taylor's involvement in the attorney purge in time for this report.

Taylor's Days as Interim US Attorney Winding Down

Taylor has never been confirmed by the Senate and is currently serving an extended term as interim US attorney because of a controversial change made to the Patriot Act in connection with the US attorney purge.

During markup on the USA Patriot Improvement and Reauthorization Act in 2006, a broad expansion of the power of the attorney general to appoint interim US attorneys was secretly added at the urging of Principal Associate Deputy Attorney General William Moschella. The law change gave the attorney general the power to appoint US attorneys on an interim basis, but without a deadline for appointing a permanent replacement who would then be subject to Senate confirmation.

Documents released by the DoJ during the ongoing Congressional investigation into the firings show this change in the law was an essential part of the attorney purge. Both houses of Congress subsequently voted overwhelmingly for a bill to restore the time limit for interim appointees and to reassert Congressional oversight.

According to the Government Accountability Office's Associate General Council Michael Volpe, the Preserving United States Attorney Independence Act of 2007 passed by Congress restores a 120-day limit for interim appointees such as Taylor. Taylor has currently served more than 280 days as interim US attorney, but his time limit was reset on June 14 when President Bush signed the bill into law. Because of this extension, Taylor can continue to serve as interim US attorney, without the approval of Congress, until October 12, 2007, for a total term of 378 days.

Taylor has come under fire previously for hiring Jay Apperson, a former House of Representatives counsel who resigned in 2005 for sending a letter to a federal judge under his boss's name, without his permission. Taylor hired Apperson at the urging of DoJ officials, including Mercer and Moschella, and allowed Apperson to skip the normal vetting process for career federal prosecutors.

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