Appearing before the House Judiciary Committee, U.S. Attorney General Michael Mukasey said he didn’t know when the Justice Department would respond to questions regarding federal monitor contracts and deferred prosecution agreements, and said he did not know the details of the contract given to former Attorney General John Ashcroft.
But Mukasey did say his department began reviewing procedures to award federal monitor contracts before key House members began seeking information.
“The increasing phenomenon of monitors is something that we noticed well before there came to be publicity about it and have been looking into it,” Mukasey said. “We've asked the Attorney General's Advisory Committee, which is a group of United States attorneys from around the country who can gather information from United States attorneys about the prevalence of the phenomenon and whether there is a way of coming up with best practices or guidelines.”
Rep. Loretta Sanchez (D-CA) asked if contracts like the one U.S. Attorney Christopher Christie gave to Ashcroft and others “fostered the appearance of cronyism, where U.S. attorneys can appoint their friends and former superiors to those lucrative positions.”
“I think it's helpful to have the experience of other U.S. attorneys, before a U.S. attorney embarks on a course of conduct, be it the selection of a monitor or anything else,” said Mukasey.
Read the exchange on federal monitors and Christie between Mukasey and Sanchez:
HOUSE COMMITTEE ON THE JUDICIARY HOLDS A HEARING ON OVERSIGHT OF THE DEPARTMENT OF JUSTICE
FEBRUARY 7, 2008
SPEAKERS: REP. JOHN CONYERS JR., D-MICH. CHAIRMAN REP. HOWARD L. BERMAN, D-CALIF. REP. RICK BOUCHER, D-VA. REP. JERROLD NADLER, D-N.Y. REP. ROBERT C. SCOTT, D-VA. REP. MELVIN WATT, D-N.C. REP. ZOE LOFGREN, D-CALIF. REP. SHEILA JACKSON LEE, D-TEXAS REP. MAXINE WATERS, D-CALIF. REP. BILL DELAHUNT, D-MASS. REP. ROBERT WEXLER, D-FLA. REP. LINDA T. SANCHEZ, D-CALIF. REP. STEPHEN I. COHEN, D-TENN. REP. HANK JOHNSON, D-GA. REP. LUIS V. GUTIERREZ, D-ILL. REP. BRAD SHERMAN, D-CALIF. REP. ANTHONY WEINER, D-N.Y. REP. ADAM B. SCHIFF, D-CALIF. REP. ARTUR DAVIS, D-ALA. REP. DEBBIE WASSERMAN SCHULTZ, D-FLA. REP. KEITH ELLISON, D-MINN. REP. TAMMY BALDWIN, D-WIS. REP. BETTY SUTTON, D-OHIO
REP. LAMAR SMITH, R-TEXAS RANKING MEMBER REP. F. JAMES SENSENBRENNER JR., R-WIS. REP. HOWARD COBLE, R-N.C. REP. ELTON GALLEGLY, R-CALIF. REP. ROBERT W. GOODLATTE, R-VA. REP. STEVE CHABOT, R-OHIO REP. DAN LUNGREN, R-CALIF. REP. CHRIS CANNON, R-UTAH REP. RIC KELLER, R-FLA. REP. DARRELL ISSA, R-CALIF. REP. MIKE PENCE, R-IND. REP. J. RANDY FORBES, R-VA. REP. STEVE KING, R-IOWA REP. TOM FEENEY, R-FLA. REP. TRENT FRANKS, R-ARIZ. REP. LOUIE GOHMERT, R-TEXAS REP. JIM JORDAN, R-OHIO
WITNESSES: ATTORNEY GENERAL MICHAEL MUKASEY
….
CONYERS: The chair recognizes Linda Sanchez, who is the chairperson of committee number five, Administrative Law.
SANCHEZ: Thank you, Mr. Chairman.
And thank you, Mr. Mukasey, for coming and indulging our questions.
One month ago Chairman Conyers, Representative Pascrell and I sent you a letter addressing our concerns about the growing number of deferred and nonprosecution agreements pounded out by federal prosecutors.
To date, we have yet to receive a response from your office. We discussed this personally on the phone yesterday.
But I just want to bring to your attention that that letter highlighted a study that was conducted by Lawrence Finder and Ryan McConnell which found that the number of deferred and nonprosecution agreements between the Department of Justice and corporations had grown exponentially last year to 35 from just five in the year 2003.
Having said that, that study in many ways is incomplete because in fact there is no requirement to report these agreements and therefore we're not even sure exactly how many agreements between corporations and federal prosecutors actually exist.
I'm curious in knowing when you will disclose to this committee all of the information relating to these agreements that was requested in our letter of January 10th.
MUKASEY: You're right, we discussed this yesterday, and I'm going to get back as promptly as I can with respect to your letter.
I do want to stress, as we discussed yesterday, that the increasing phenomenon of monitors is something that we noticed well before there came to be publicity about it and have been looking into it.
We've asked the Attorney General's Advisory Committee, which is a group of United States attorneys from around the country who can gather information from United States attorneys about the prevalence of the phenomenon and whether there is a way of coming up with best practices or guidelines…
SANCHEZ: But the question I'm asking you is, when can we expect to receive the information that we've requested in the letter?
MUKASEY: I can't give you a deadline. That's one of the things we want to gather up, to figure out not only the numbers, but what to do.
SANCHEZ: OK.
MUKASEY: And it's an outgrowth of increase prosecution of corporations…
SANCHEZ: Let me ask you this. Do you support the full disclosure by the Department of Justice of all deferred and nonprosecution agreements prospectively in the future, moving forward?
MUKASEY: With respect, I would like to hear from the Attorney General's Advisory Committee as to not only the prevalence of the phenomenon, but whether confidentiality agreements serve or disserve the larger interest in seeing to it that wrongdoing is rooted out, that people who have to be prosecuted, individuals that have to be prosecuted are, and that unnecessary damage isn't done.
SANCHEZ: So, at this point…
MUKASEY: I will try to get the information for you.
SANCHEZ: OK. Now, attention to the issue of deferred prosecution agreements came about, in part, because of the actions of U.S. Attorney Christopher Christie.
In the process of deferring a prosecution, Mr. Christie selected his past superior, former attorney general John Ashcroft, to serve as a federal monitor and collect fees reported to be in excess of $52 million.
I know that, during your testimony to the Senate Judiciary Committee, you admitted deficiencies in the way that federal monitors are selected, and made the suggestion that, in the future, federal prosecutors may have to submit reports to the department on the selection of those monitors.
Do you believe that a lack of guidelines on how independent corporate monitors are selected has fostered the appearance of cronyism, where U.S. attorneys can appoint their friends and former superiors to those lucrative positions?
MUKASEY: I think it's helpful to have the experience of other U.S. attorneys, before a U.S. attorney embarks on a course of conduct, be it the selection of a monitor or anything else.
And without getting into labels like "cronyism" and so on, I think it's useful to know what the best way it to go about it, whether it involves the company in the process of selecting from a group or what.
SANCHEZ: Let me ask you — do you think that the contract that was awarded to Mr. Ashcroft was excessive?
MUKASEY: I don't know the details of the contract that Mr. Ashcroft has. And I would point out that the money that we're talking about is not public money. This is money that comes from the corporation. I know no other details.
SANCHEZ: One of the things that I'm very deeply concerned about, with respect to this particular issue, is the lack of any judicial oversight in regard to deferred prosecution agreements.
And I'm going to give you, just, an example. For example, if an individuals is charged with a crime and agreed to a plea bargain with the prosecution, then that plea must go before a judge who has the power to deny and, in some cases, alter that agreement, based on judicial discretion.
However, with regard to deferred prosecution agreements that are struck between federal prosecutors and corporations, neither party ever sees the inside of a courtroom, let alone have to put these agreements before a judge.
So I'm wondering if you concerned that this has created two completely different systems of justice, one for individuals, that is accountable to the judiciary, and another for corporations, that is based entirely on the discretion of federal prosecutors.
MUKASEY: All right. Prosecutors proceed under guidelines that are very strictly set by the department, that are very strictly reviewed by the department.
SANCHEZ: But there's no judicial review of those deferred prosecutions — or am I mistaken on that?
MUKASEY: I think you're not mistaken about the question of whether all such agreements are reviewed.
SANCHEZ: Do you think it's generally good policy that they would not be reviewed by a judge?
MUKASEY: In order for an agreement to be ordered, it would certainly have to be reviewed by a judge.
I think that the decision whether to charge or not charge has always been an executive decision.
SANCHEZ: And yet…
MUKASEY: And prosecutors reach those decisions in all settings…
SANCHEZ: But yet…
MUKASEY: … regardless of whether they involve nonprosecution agreements.
(UNKNOWN): Chairman, regular order. Time is…
