Exclusive to MLW: Interview with Fired US Attorney David Iglesias

JH: You became the U.S. Attorney with the District of New Mexico in August of 2001, and it wasn't until 2006, I believe, that you were dismissed.

Now there were two important phone calls that seemed to precipitate that, that you received from two Republican members of Congress from your home State. Can you tell us a little bit about those?

DI: Sure. I was nominated in August of 2001. I was confirmed in October. I assumed my duty in 2001, and I left my duty on the last day of February 2007.

I was not put on any kind of list to be terminated until November of 2006, and it was just weeks after getting two very inappropriate calls from members of Congress.

First in mid-October Congresswoman Heather Wilson called me while I was in Washington D.C. She asked about sealed indictments. She had been campaigning, she was, I think at that time behind in a very, very tight race, against her challenger Patsy Madrid.

Evidently Heather began hearing about sealed indictments that I was somehow sitting on, indictments related to corruption cases.

I did not talk to her about any issued indictments; I rather generally answered her questions that we rarely sealed indictments. We did so in juvenile cases, because juvenile cases are never public in federal court. National security cases….

The very fact that she asked questions raised red flags in my mind, that she had asked me because it is completely inappropriate for anybody, much less a Congresswoman to ask a federal prosecutor about an indictment that has been sealed and not made public.

That was mid-October. She, uh, it was a very brief conversation, she was not happy to hear what I had to say and she ended the conversation saying "Well, I guess I'll have to take your word for it," which told me she did not take my word for it. She doubted the veracity of what I said.

So, about two weeks later, her mentor, Senator Pete Domenici, who is a veteran 34 year senator from New Mexico called me late October, approximately the 27th, 28th, and I was at home, in fact I am sitting in the same chair right now, I'm in my bedroom where he called.

And first his chief of staff got on the line, Steve Bell, said they'd heard some complaints about me, and the senator wanted to talk to me, so he passed the phone to the senator.

And Pete Domenici wanted to talk to me about when I was going to file indictments in corruption cases or corruption matters. These are matters that have been widely reported in the local media concerning corrupt activities of a courthouse, a state courthouse that is being built in downtown Albuquerque; and the participants were Manny Aragon, who is the former Senator Pro-Tem of the state legislature, has been active in politics for 30 years here, former Mayor Ken Schultz, Albuquerque Mayor, and their operatives. Schultz is a Republican, Aragon and others were Democrats, and Pete Domenici wanted to know when I was going to file these.

And again, I was just stunned he would call me while I was at home, on a weekend and ask me about matters that were completely confidential. So I tried to be as vague as possible, oh and he said "Are these gonna get filed before November?"

I said I didn't think so, he said "I'm very sorry to hear that," and then the line went dead. In other words he hung up on me.

You can count on one hand the times anybody's ever hung up on me in my 23 years of practicing law, and I was just, I felt sick after Pete Domenici called me, didn't get the answer he wanted and he hung up on me.

JH: And just to make sure we've got the timelines straight, these phone calls occurred in October 2006, the month before the election.

DI: Right, the election I think was on November 7th.

JH: Yeah, so…

DI: So it was within weeks of, Domenici's call was within a couple weeks of the general election. And then my name was added to the list to be terminated immediately after the election. I was notified on Pearl Harbor Day.

JH: Oh, how nice. (Laughter.)

DI: Yes it gets more, more, more ironic for a Navy guy like me.

I was actually coming back from doing duty in Newport. I was teaching a course at the Defense Institute of Legal Studies on the military support of law enforcement on the southwest border.

I was flying back to New Mexico when Mike Battle [Director of the Executive Office for United States Attorneys] called me and dropped the bomb on me.

JH: Let's make sure we've got this straight. Were you originally told that you were fired for performance related issues, but in fact your performance evaluations you'd had up to that point were sterling, were they not?

DI: Yes, I had two official evaluations; every U.S. Attorney gets evaluated every three years. So, I've been evaluated in '03 and '06 and both very, very positive evals that I was an effective leader, I was respected by… and this is language that the report which is, you know, is about 60-70 pages long, reports that I was respected by the courts, by the agencies and by my office.

Mike Battle wrote me a letter thanking me for my exemplary leadership and priority programs for the DOJ [Department of Justice].

And initially, they didn't give me any reason. More, when Battle called me, and when I asked Mike why I was being fired or asked to resign, he said, "I don't know and I don't want to know." He goes, "All I know is the orders came from up high."

Then, when the scandal broke, you know, DOJ had to come up with reasons for all of us. So in my case it was, I delegated too much. Well, at first, it was a very general reason, performance related for all of us, and that was when Paul McNulty testified on 9 February this year.

On proper reasons for firing U.S. attorneys:

DI: You're not hearing the administration saying now that you can fire a U.S. Attorney for any reason.

Senator Specter [Arlen Specter of the Senate Judiciary Committee] stated on March the 6th in open testimony that there were some bases that were not proper for letting a U.S. Attorney go, and that was he or she is getting into sensitive areas, by which I took to mean corruption matters, or sensitive investigations.

And then Gonzales' written testimony of April 17th, 2007, he also said there were some improper reasons and I think he said, "We should further agree on a definition what an improper reason for the rule of U.S. Attorney would be."

As former acting Solicitor General and Assistant Attorney General Walter Dellinger stated, "An improper reason would be the replacement of more and more U.S. Attorneys in order to impede or speed along particular criminal investigations for illegitimate reasons.

So the administration now concedes that there are some improper reasons, and I'm glad, because all of us believe we were removed improperly.

On the clause in the Patriot Act that gave Attorney General Gonzales authority to replace U.S. Attorneys with interim successors who would not have to face confirmation by the Senate:

DI: Now regarding the Patriot Act, it's great anti-terrorism legislation. DOJ has made lots of legitimate anti-terrorism investigations and prosecutions as a result of the Patriot Act; but it was never intended to be a vehicle to get around Senate confirmation. It was never intended to be a crony full-employment act, which it was in the case of Bud Cummings district in Arkansas, when Karl Rove put Tim Griffin in, his aide, using his provision in the Patriot Act, which was snuck in last year.

The Patriot Act should never be used to subvert or skirt Senate confirmation, and I believe that the provision was put in to allow all of us that were forced to resign to have people come in quickly and not ever face a confirmation for the next two years. That simply is wrong, it's illegal and I'm glad that Congress revealed it, and the President has not vetoed that.

JH: When you say, "snuck in last year," this would have been at the time frame that it was being reviewed and renewed and so forth, right?

DI: Yeah, yeah, there were, I don't remember the actual number of sections that were due on sunset on December 31st of 2005, but there were a small number and then Congress extended it for 2 months. Then in March of `06, they made most of the provisions permanent; and unbeknownst to Congress, unbeknownst to Specter, who was then the chairman of the committee, there was a section that allowed the Attorney General to make indefinite interim appointments, without getting the Senate to confirm it. That's clearly unconstitutional. That's clearly wrong and I'm glad the administration has not fought that.

JH: And Specter didn't realize that that had gone in there.

DI: No, You know what happens, based upon what I've talked to friends of mine and staffers on the Hill about, is a lot of this legislation is voluminous, it's hundreds of pages long, and the members of Congress literally don't have time to read every page, so he delegates to a staffer that may or may not catch the effect that there has been this provision snuck in. Now, in the case of this indefinite interim appointment, nobody caught it.

It was put in by the Justice Department; it was put in by like Gonzales and other people. Clearly wrong, clearly unconstitutional.

JH: Let's get back to Gonzales. A lot of people have been calling for his resignation over this, and some observers will look at that and say "Well, you know, Gonzales has kind of been under the microscope for a long time, about a whole lot of things." He's referred to in many circles as "Torture Guy"… He's the one that called the Geneva Conventions, and the U.N. Conventions on torture "quaint and obsolete." He had a pretty colorful testimony before the judicial committee a while back over the NSA Domestic Surveillance issue, and a whole lot of other constitutional questions regarding presidential powers.

Would you care to give us some perspective on why [AttorneyGate] is the thing that broke the camel's back?

DI: I think because the other issues, and by the way, I think he is a hundred percent wrong on the torture, and I think he's wrong on the Geneva Convention being "quaint and obsolete." Any operational lawyer, any military lawyer will tell you you've got to have international standards, and these have been in place since World War II, since the end of World War II. There has to be, the World Community has to have an agreed standard, and for the U.S. to thumb its nose at it, it completely abdicates our moral high ground, and we just can't do that.

That being said, why did this get Gonzales in the firestorm, and why didn't the other ones? I think probably because the Patriot Act provision that allowed him to make these indefinite interim appointments was perceived as a slap in the face at the Senate; whereas the other sections really did not, those are more issues to, you know, debate over, but it did not intentionally subvert the Senate's constitutional role in oversight; whereas this provision in the Patriot Act that was put in, and then all the subsequent mis-statements and half-truths that were coming out of the [administration], and in all the statements, half-truths and untruths by McNulty and Gonzales, I think there was a real affront. The Senate said, "Wait a minute, we have a legitimate role here in providing oversight and this current leadership is trying to get around there, or they are not being straight with us."

So, I think that that's why, that Gonzales is up to his eyeballs in alligators now, and he wasn't a couple years ago with the torture memo and the other scandals; or other disagreements that they got.

JH: Ok, you bring something up about being a JAG. You still, you're still a drilling reservist, is that correct?

DI: That's correct. I do approximately forty to forty-five days of duty per year.

JH: And, when we're talking about these things like International Treaties, there's a certain question… As I've read it, when we talk about laws and treaties, passed under the Constitution, by the law of the land, these in fact -- and there's been a lot of talk about, should we really be worried about International Laws -- but if we are in a treaty that the Senate approved with the two-thirds vote; those are binding laws under the United States Constitution aren't they?

DI: That's correct.

JH: Is there enough persuasive argument…to question it?

DI: No, if the President signs the treaty on behalf of the United States and it's ratified by the Congress it is binding law. And there's case law, I can't tell you which cases there are, because I haven't researched that, but your statement is correct.

And also I must say, that these views, personal views that I'm giving, should not be construed as the official views of the U.S. Navy, or D.O.D. or the U.S. Government.

JH: Ok, well I appreciate your clarifying that.

Let's talk a little bit about, you know, as a fellow Military guy, people who work for the federal government, and essentially work for the executive branch and the guy who's at the head of it; there's always a question of loyalty to the "boss" and loyalty to the Constitution, which is the thing you actually swear an oath to, the Constitution.

And there's also the matter of, okay, and you've talked about this before, and this may be repeat territory for you but, the U.S. Attorney is a politically appointed job but that doesn't make you a political operative, and you've got some pretty clear advice from somebody pretty high up on the food chain, from that didn't you?

DI: Yes, and let me just comment on the political appointment process. Two Harvard Law Professors posted something on the Internet about a week ago; I think it was Professor Fried stated, "Look, U.S. Attorneys are like Federal Judges, they get their jobs through the political process, but once they're in office they have to stay out of politics. They are required to stay out of politics."

And that's consistent. John Ashcroft, former A.G., told me in his office when I was being interviewed somewhere in 2001, he said, "David, if you become U.S. Attorney you have to leave politics outside. It cannot be part of your decision as U.S. Attorney." I said, "Yes sir."

I mean, I understood that, it is consistent with what I was advised by former U.S. Attorneys here in New Mexico, from both parties, and that's just a given. So you know, I didn't think that, I mean I knew you could be fired for getting involved in political matters as a U.S. Attorney, but I never thought I would be fired for not getting involved in partisan political activities.

JH: And just to make it absolutely clear, you are a Republican, isn't that right?

DI: I am, I am.

JH: So it's not like, I want to make sure nobody gets the impression that you're some wild-eyed, liberal, progressive Democrat who's raging against the Republican Party. These are your folks.

DI: Not at all. Exactly, I ran for State Attorney General in 1998 as a Republican. You know, I believe in most of the ideas and the platform, but I'll tell you this as a result of this scandal, I'm deeply disillusioned with my party and the party's lost its moral compass. It doesn't practice what it preaches.

JH: When you say the party's lost its moral compass, and again we understand we are talking about your opinions here, is there a segment within the party that made that happen, was it something that happened when the neoconservatives came to power in the party or is it just a general spreading of things that came with "Hey, here we are, we've finally got all the power!" or any other thoughts you may have on that subject?

DI: Yeah, you know the founding fathers were brilliant when they set up the idea of having checks and balances and that the three branches of government would be co-equal and I think when my party had primacy in the House, the Senate and the White House that just wasn't good, because there just was no checks and balances, there was no oversight being put on Congress over the President.

And the idea of having two major parties that bicker about things, forces compromise, and I'm a big believer in compromise. I mean, our country is roughly split on ideology, and I think most people are somewhere around the center. It's the people on the far right, or the far left that are the ones that move their parties' platforms, and move the party. So, you know, one of the major reasons the voters gave last fall was, for returning the House and Senate back to the Democrats was corruption, corruption matters perpetrated by Republicans for the most part. You know, you had Duke Cunningham there in San Diego, you had Bob Ney in Ohio, you had Foley in Florida and now it appears there are more Republican members of Congress under investigation. When a party has that number of its own members that are either convicted or under investigation, it tells me that the party's morally bankrupt.

JH: Now, your plans for the future, [are you] going to run for office again?

DI: No. I had planned, I had thought that I wanted to run for office, maybe Governor or House or Senate, but at this point it would be impossible. And, frankly, no, I've got 4 kids, I've got 3 that are going to be in college at the same time in 6 years, I need to start making some money.

So I'm looking at the private sector. I'm considering things like writing a book, maybe being an analyst for a network. I'm in negotiations with a large non-law firm with International operations that I hope to, may land a job there.

I'm just kind of weighing what I want to do now, for the next 10 or 20 years of my life, and I'm taking my time, you know?

JH: What particular areas of law do you want to pursue?

DI: Well, I'm not even sure I want to practice law.

JH: I see.

DI: You know, I hope to be doing other things. So, I'll make a public announcement once I decide what that is.

My initial plan was to take a couple of months off, and do as little as possible, and just hang out with the family. March was filled with testimony and travel and media, you know… but in April I was out of the country for a week, on Navy orders, and [in] Newport on the second week. And the media attention has been just amazing. It's been non-stop, but I think that's a good thing, because I hope the public understands what an important issue this is, that they have to have prosecutors that only decide cases on the evidence, and not on political considerations. This is really all about the impedance and the integrity of Federal Prosecutors.

DI: …Mikey Weinstein is a good buddy of mine, and has been for almost 10 years now. I wrote a letter of support for one of his sons, to go the Air Force Academy. I have lots of friends who are Naval Academy grads, few West Point grads, a few from Colorado Springs, they're great institutions.

I may be speaking as an Evangelical Christian, but I also understand the First Amendment, and I respect the fact that our Founding Fathers did not want to establish one religion or sect over another.

What happened to Mikey's sons was just wrong. You know, especially in the Military context, I mean all of us on this phone have served and understand that the command influence, the command atmosphere is an inherently coercive atmosphere. You don't want a C.O. or X.O. force his religious views on you and if you disagree with them you don't get all the [recommendations of fitness reports you need to have a successful career].

You know? I mean, our positions are clear in this country. There's a time and a place to show your faith, and that time and a place is not in a command atmosphere. That's what I practiced over my past twenty-two years, and you know I wish Mikey well, in ensuring that his sons and people at the academies and on active duty don't have to be coerced into hearing a message that they don't want to hear.

JH: And I think I'm injecting some of my opinion here; I've had some experience at it over my Navy career. The shame of all this kind of thing is that, and I know, we both know, people in Chaplain Corps who do magnificent work…

DI: Right

JH: …and who are not using that chain of command hammer to…

DI: Right

JH: … push their religious ideas. And so you speak up about this, the tendency is to say, well you sound like you're condemning the whole Chaplain Corps, and I know whenever I talk about that, I say "Well that's certainly not the case!" but then again, the issue is certainly there. But it's really almost more like you say it's a command atmosphere thing…

DI: Anything that's prejudicial to good order or discipline, you know, has to be removed from the service, especially in wartime. We want to make sure that anything that threatens the cohesion is removed.

JH: Yeah.

DI: And if you have an out of control chief petty officer or MCO or CO or XO that's creating problems due to his religious views, that's gotta stop, because the military is about good order and discipline and in obtaining its mission, not about forcing your religious views on other people.

JH: I'll tell you what we've had a great talk. Let's just do a catch-all thing here, is there anything that I haven't raised or that hasn't come up that you'd like to address?

DI: Yes, the unprecedented nature of these terminations. At first you heard some of the talking points being "Well, you know Bill Clinton fired all 93 U.S. Attorneys, what's the big deal?" and my response is this, "It is not uncommon for any President to let go the preceding administration's appointees. That's expected, but what makes this so different we're not aware of any historical precedent in which 7 of the top Federal Law Enforcement Officials, U.S. Attorneys were let go on the same day, and no reasons given. Once the reasons were given they kept changing."

This scandal has resulted in the loss of credibility by Mr. Gonzales and Paul McNulty, and you know, the fact that Goodling and Sampson had resigned, I think is significant.

This problem's not going to go away. I applaud Congress and the media for keeping their drumbeat steady and for trying to get to the bottom of this.

U.S. Attorneys have significant powers, we're the only Federal Officials that can take away your liberty, take away your property and take away your life, completely legally. We never want a political, partisan ideology being factored in. The public's got to stay out of the prosecutor process.

So, I hope at the end of the day once the scandal's over and hopefully there is some type of resolution that U.S. Attorneys in the future will be able to be independent and not worry about "Well, I make this decision and I'm going to tee off this Senator or that Congresswoman." That should never be part of the, you know, calculus.

Shockwave: I have a simple question; this is Shockwave. How do we prevent this from ever happening again?

DI: Wow, that is a fantastic question, nobody's ever asked me that. I think Tom Phillips who's a Republican thinker posted something a couple days ago saying that we need to make the Attorney General a term appointed position, somewhat like the FBI director, who serves for ten years. That way, you know, you're built in to serve over a couple different administrations. I think that something maybe they want to look into for U.S. Attorneys. You know maybe also you get in for just a four-year term, although no, that would not work, because you never know if your president's going to be in office for more than one term or not.

SW: How would you change that?

DI: I have to think more about that.

JH: How would that change come about? What would have to happen, could that be something that the Legislature could dictate?

DI: In terms of the tenure appointment of the Attorney General?

JH: Yeah, I'm not real clear on, you know the, as I recall the Constitution per se doesn't really address the Attorney General or the Justice Department or any of that stuff, so I don't know where the rules came from. The way things work now, where did those rules come from?

DI: Article Two justifies what the President's powers are and it talks about him and his appointing officials and lower officials, which would include…the U.S. Attorneys.

I'm not a constitutional scholar, but I imagine there'd have to be some legislation, some Congressional legislation specifying that the Attorney General serves to a set term.

That, I think that's an excellent question, and I'm not sure how this scandal could have been avoided through a different process. The root of this is having political operators running a law enforcement agency. If you had people at the top level of DOJ who'd never been prosecutors, they'd never been in court prosecuting cases, talking to witnesses, talking to cops, the agents; I mean they didn't understand what we did. They issued U.S. Attorneys just like other political appointees and that fundamentally misperceives what we do.

JH: That brings up another interesting aspect…the two people who resigned [Kyle Sampson and Monica Goodling of Gonzales's Justice Department staff], who are the two people that Gonzales actually put in charge of hiring and firing folks, their credentials weren't what you'd expect of someone who's working in - neither of them had a whole lot of prosecutorial experience, did they?

DI: I think Sampson had prosecuted one case. I'm not aware about Monica even prosecuting any cases. But they were fundamentally unqualified to sit in judgment over the U.S. Attorneys. Plain and simple, they didn't understand what we did. They should have never been in those positions.

They were good for staff members maybe…doing political things, but when it comes to sitting in the position of responsibility over U.S. Attorneys, they should have never been there.

JH: Okay: Okay. Well, I'm about out of things to ask. Shockwave you have anything else?

SW: No, just to mention our intention is to post transcripts and excerpts from this interview and solicit additional questions for Mr. Iglesias in case we have a chance to ask these questions and maybe the blogosphere can contribute additional questions that we haven't thought of.

Pyrrho: Right and -- this is Pyrrho...

DI: Yeah, I'd really like to hear what other, some of the readers have and I'll leave it up to [redacted] to call me then and screen those and maybe find 10, the 10 top questions to ask me and I'll be more than happy to respond.

Pyrrho: This is Pyrrho -- I'd like to thank you, Mr. Iglesias, and I don't have any questions, but it was fascinating to listen to.

DI: Well, thank you.