December 2007

President's Corner: Being John McKay

by WSBA President Stan Bastian

Stan Bastian talks with former U.S. Attorney John McKay to find out what really happened when McKay was asked to resign last December

My column this month consists of an interview with John McKay, the former U.S. Attorney for the Western District of Washington. John and I first worked on this project last June, and the idea came to me after I heard him give a speech at a CLE in Kennewick which was both thought-provoking and inspiring. (I don't know too many people who can be inspiring after being fired in such a public way.) My plan was to print the interview in this December edition of Bar News because it is the first anniversary of when he was fired as U.S. Attorney. I thought that retelling the story would be a good reminder to everyone of the importance of keeping our judges and prosecutors free from political influence.

Little did I know that John's story would still be current when this column was actually published. Between the time when the interview was written in June and then published in December, this controversy has resulted in congressional hearings and investigations, and the resignation of several senior members of the Department of Justice, including Attorney General Alberto Gonzales. It continues to tarnish the reputation of the Bush Administration.

What follows is the story of John McKay, told in his own words in response to my questions.   
Stan Bastian: Explain/describe your professional background which led up to your appointment as U.S. Attorney for the Western District of Washington.

John McKay: Well, first I'm a trial lawyer who loves the practice of law and considers himself fortunate to be a member of the WSBA since attending the University of Washington and graduating from Creighton Law School in 1982. I practiced at two great law firms, Lane Powell Spears Lubersky and Cairncross & Hempelmann, and was privileged to serve as a White House Fellow in 1989-90 as special assistant to the director of the Federal Bureau of Investigation. Before my nomination as U.S. Attorney by President Bush and confirmation by the Senate in 2001, I was president of the Legal Services Corporation in Washington, D.C., appointed by its bipartisan board in 1997.

You may know that my brother Mike McKay was U.S. Attorney during Bush 41; we've been told we are the only brothers to serve in the same district as U.S. Attorney. Our younger brother Bill (we are from a family of 12 children) is also a lawyer, and some say he may also get to be U.S. Attorney. Frankly, I think his chances are a little slim at this time.

Stan Bastian: After five successful years in office as U.S. Attorney, why did you decide to resign in December 2006?

John McKay: I was told "the Administration" wished me to resign in an early-morning phone call I received on December 7, 2006. I was given no explanation and was told of no dissatisfaction with my performance or that of my office, despite my requests for any information about this surprise phone call.

Stan Bastian: At that time, why did you believe that you were being asked to resign? What were you told by those who requested your resignation?

John McKay: The call was actually made by my friend Mike Battle, who had served with me as U.S. Attorney in Buffalo and was the director of the Executive Office for U.S. Attorneys at the Department of Justice. Mike is a fine guy, and he was clearly uncomfortable in making this call. While the conversation was short, he did tell me that "sometimes when you get a call like this you think you've done something wrong, and that isn't always the case." He indicated he could not elaborate, and would not confirm that others were also being dismissed. I thanked him for his friendship and we ended the call cordially.

Stan Bastian: When you resigned, what explanation did you provide the public and why?

John McKay: All U.S. Attorneys understand that they serve "at the pleasure" of the President — we don't own the job, and many others are qualified to represent their country in court. I told only my senior staff and a few family members of the circumstances of my dismissal (what little I knew of them) and announced on December 14 that I would be "returning to the private sector."

Stan Bastian: Why didn't you tell the truth about your resignation? Why didn't you just explain that the Bush Administration had asked you to leave?

John McKay: I believed that it was my duty to resign quietly, and that doing so would avoid drawing attention to myself and disrupting the work of the incredibly dedicated men and women of my office and in federal law enforcement. At the time, it was important to me that I carry myself with as much grace as I could muster, and, despite my personal disappointment, to do nothing that would reflect poorly on the President who appointed me or upon the Justice Department which I loved.

Stan Bastian: When you resigned, did you know that other U.S. Attorneys had also been asked to resign the same day?

John McKay: I suspected I wasn't the only one getting this call, because I had received only a few months earlier an outstanding evaluation for myself and more importantly, the assistant U.S. Attorneys, and support and administrative staff of my office for whom the accolades in the detailed report were rightfully earned. I knew that federal agents with whom I worked as the region's chief federal law-enforcement officer respected and supported my leadership. I also knew that community leaders, including those in the African-American, immigrant, and Islamic communities, had praised my outreach during difficult times, including the dark days following the 9/11 attacks.

Stan Bastian: When did you discover that other colleagues had been forced to resign? How did you find out?

John McKay: I was the first to announce my resignation, and following our protocols, I alerted my fellow U.S. Attorneys that I would be resigning later that day. Within minutes, I received a cryptic e-mail from my friend and colleague, the outstanding U.S. Attorney in New Mexico, David Iglesias (whose experiences as a Navy JAG lawyer were the basis for the play and movie A Few Good Men). He asked whether I had received "the same phone call" he had. I was shocked, as David was a highly regarded U.S. Attorney and had been rumored for appointment to other senior law-enforcement positions. Over the next several days, we learned that seven of us had been dismissed on the same day, an unprecedented action and one never before occurring in the history of the Justice Department.

Stan Bastian: When did you discover that you were on a list of disposable U.S. Attorneys?

John McKay: That's a descriptor I haven't heard before, but I suppose that it is accurate. Ironically, it appears I may have been on two lists. The first was dated September 13, 2006, and senior officials, including Attorney General Gonzales, have given different and shifting explanations for how I might have been on this or other lists for termination. First, it was "performance issues," then "policy differences," then "poor judgment," including my work on a highly successful law-enforcement information-sharing system for which I received the Navy's highest civilian award and for giving an interview to the Seattle P.I. — which was published almost two weeks after the list was created. Later, it was revealed the Department of Justice had redacted documents showing I was on a list in March 2005 during the heat of the controversy surrounding the 2004 Governor's election, making the U.S. Attorney General's sworn testimony incorrect and raising the specter that I was fired for refusing to use the power of my office to overturn the election to benefit Republicans.

Stan Bastian: When and why did you go public with criticisms about the process?

John McKay: By mid-January, while still in office, a number of us were in contact, and we all observed the Attorney General testify to the U.S. Senate under oath that he did not intend to avoid Senate confirmation of our replacements. I considered this to be false, since I knew he had done nothing to replace us, and others had been appointed under a new provision slipped into the USA PATRIOT Act making interim appointments indefinite. I and all of my colleagues concluded that our continued silence would make us part of his lie, and so we began to speak out. In early February, the deputy Attorney General, Paul McNulty, admitted that at least one of us had been replaced for purely political motives and that the rest had "performance problems." I considered this an attack on the work of my office and the women and men of federal law enforcement I led, and resolved to speak out in rebuttal, having left office on January 26, 2007.

Stan Bastian: How did the Bush Administration respond to your criticisms? Did they offer new or other reasons to explain your resignation?

John McKay: While no official would admit to placing me or any of my colleagues on a list to be fired, among the more disturbing reasons given for my being listed in 2005 was because I had "pushed too hard" for resources in the Tom Wales investigation. Tom was a brave and highly regarded assistant U.S. Attorney in Seattle who was shot in the back through the window of his Seattle home while writing e-mails to his college-aged children away at school. Tom died on October 11, 2001, and his killer or killers remain uncaught, with the F.B.I. publicly stating they believed he was killed in the line of duty by someone he prosecuted. I freely admit that I strongly and passionately advocated for appropriate resources to apprehend Tom's murderers, and consider this latest excuse to be the most cynical, the most reprehensible advanced thus far by the Attorney General's office. They have dishonored Tom and his memory by using this excuse to cover up their lies and misconduct.

Stan Bastian: Do you have concerns about the process leading up to your resignation? If so, explain.

John McKay: Well, it's hard to criticize a process when no one takes responsibility for the action. The Attorney General can't seem to recall much, except that he agreed with the recommendation for reasons he's unsure of now. He delegated enormous authority to his staffers, including Monica Goodling and Kyle Sampson, both of whom have resigned because of this matter. He secretly authorized them to exercise authority over the hiring and firing of other Justice Department personnel, and they have admitted to inappropriately advancing partisan political considerations. All of us should be concerned about this blatant politicization of the criminal justice system; it flies in the face of the fair and impartial administration of justice we were sworn to uphold.

Stan Bastian: You took this job knowing that you served at the pleasure of the President. Why, then, do you have concerns about the process?

John McKay: The President may certainly discharge a U.S. Attorney for any or no reason, but not for an illegal one. Firing a U.S. Attorney because she convicted a Republican Congressman (Carol Lam, former U.S. Attorney in San Diego) or because he failed to rush an indictment of a Democrat to help a Republican win an election (David Iglesias in New Mexico), would be, if true, obstruction of justice.

Stan Bastian: How did the simple act of replacing seven or eight political appointees turn into a full-blown political scandal that eventually led to the resignation of the U.S. Attorney General?

John McKay: Because they lied and covered up possible serious wrongdoing, a lesson obviously missed by some in the White House and Justice Department after Watergate.

Stan Bastian: Has the scandal hurt the Department of Justice? How? Can this damage be repaired? How?

John McKay: On "Meet the Press," I said a black cloud hung over the Justice Department, and I believe it will be there for as long as the Attorney General fails to tell the truth, and until the White House owns up to the Congress and the public about their role. It is enormously unfair to call into question the integrity of U.S. Attorneys still serving, or the prosecutors and trial attorneys who must now answer questions about political motivation where none exists. What's at stake here is prosecutorial independence from partisan politics and renewed dedication to fair and impartial justice which is tempered by compassion. These things are driven by evidence, not politics, and the public must have its trust in these qualities restored by appointing leaders who believe them.

Stan Bastian: What lessons should be learned from this scandal?

John McKay: See above.

Stan Bastian: Should the manner in which U.S. Attorneys are selected or replaced be changed?

John McKay: No. With Congress exercising appropriate oversight and Senate confirmation once again required for appointment, the system should function well, as it has for over 200 years.

Stan Bastian: Should the PATRIOT Act be amended to require the confirmation of U.S. Attorneys?

John McKay: Yes, this has already happened.

Stan Bastian: Is it important for U.S. Attorneys to be confirmed by the Senate? Why?

John McKay: These events have underscored the role of the Senate in presidential appointments in which it must exercise its "advice and consent." In this case, both Senators Murray and Cantwell expressed their concern about my dismissal, and Senator Murray attended closed sessions to assure fairness and accountability. U.S. Attorneys wield enormous power locally and regionally in the name of the United States government, and the framers of our Constitution had it right when it came to checks and balances.

Stan Bastian: Who do you believe made the decision to ask for your resignation and resignation of your colleagues?

John McKay: Attorney General Gonzales and ultimately the President are responsible for these resignations. The Keystone Cops made more sense than the Attorney General and his cohorts, all of whom have resigned. It amazes me that they are all gone because of their roles in our firings, but that the Attorney General "stands by" his decision even though he can't remember why he did so. As lawyers, we are all engaged in a search for the truth, and we have an expectation that our Attorney General will share that goal with judges, juries, prosecutors, and defense attorneys. Anyone who has watched his testimony, including his failure to recall important meetings, conversations, and decisions, must conclude that the truth may be among his last considerations.

Stan Bastian: Do you believe that this scandal involves criminal behavior by someone?

John McKay: In addition to the Congressional investigations, the inspector general of the Department of Justice is investigating. The IG could well recommend a criminal investigation based on the facts, involving David Iglesias in New Mexico and Carol Lam in Southern California.

Stan Bastian: How has this experience affected you? What are your plans for the future?

John McKay: I was enormously privileged to serve as United States Attorney in western Washington for over five years. I don't regret one moment of my service, from prosecuting the sentencing and appeals of Ahmed Ressam to negotiating the settlement of the University of Washington billing scandal. I worked with great public servants in my offices in Seattle and Tacoma who continue to serve with passion and dedication. I learned that I have many friends in the community and among lawyers who took the time to write or call with messages of support. I have the unconditional love and support of my large family, and am so grateful to them. In the end, of course, it was not a tragedy that a federal prosecutor lost his job. Instead, I was given the responsibility to help lead a national conversation about prosecutorial independence and the importance of keeping partisan politics out of the critical issues of crime and punishment in our society.

I will continue to teach at Seattle University School of Law where I taught Constitutional Law of Terrorism and will co-teach National Security Law this fall. I am excited about the social justice mission and commitment to academic excellence of Jesuit education and am grateful for the opportunity to be a part of it. As I told my students as I concluded my class this spring, "It's good to be a lawyer."

John McKay is currently the director of the new Ethics Center at the Seattle University School of Law. In September, John received the WSBA Courageous Award, which is presented to lawyers who have displayed exceptional courage in the face of adversity, thus bringing credit to the legal profession. John not only deserved the award — in my opinion, he defines it. 

Stan Bastian can be reached at stanb@jdsalaw.com or 509-662-3685.