Taylor Withdraws US Attorney Confirmation Bid after Losing Norton Support (9/17/08)
Taylor Withdraws U.S. Attorney Confirmation Bid After Losing Norton Support
September 17, 2008
Washington, D.C. - The Office of Congresswoman Eleanor Holmes Norton (D-DC) said today that the decision of Interim U.S. Attorney Jeffrey Taylor to withdraw his nomination for formal designation as U.S. Attorney for the District of Columbia was appropriate. Senator Leahy, who has given Norton the same courtesy as Senators concerning such nominations, asked Norton her views regarding Taylor's nomination in the fall of 2007. Norton opposed Taylor's formal nomination because of serious misgivings regarding his hiring of an assistant U.S. Attorney, under pressure from top Department of Justice officials, although the U.S. Attorney had twice been forced to resign from similar posts because of unethical and improper conduct. Norton wrote opposing the confirmation because Taylor was unable to assure Norton that he had taken action to prevent related issues arising from the same person. She did not oppose Taylor remaining as interim U.S. Attorney because there were only fourteen months left in his term. Norton was particularly concerned about administrative pressure in light of the political considerations that were investigated by the Senate and others. Attached is her letter to Senator Leahy opposing Taylor's confirmation.
November 28, 2007
Senator Patrick J. Leahy, Chairman
Senate Committee on the Judiciary
Dear Senator Leahy:
I appreciate your letter requesting that I submit my opinion regarding the nomination of Jeffrey A. Taylor to be confirmed by the Senate as United States Attorney for the District of Columbia. I have observed Mr. Taylor during his tenure, have reviewed his record, and recently met with him again. Mr. Taylor was initially appointed as interim United States Attorney by the Justice Department on September 22, 2006, filling the vacancy created when Kenneth Wainstein became assistant attorney general for national security.
Mr. Taylor has carried on the work of his predecessors, indicating some understanding that the major jurisdiction of the U.S. Attorney for the District of Columbia is enforcement of the D.C. Code. Nearly two-thirds of the jurisdiction of the U.S. Attorney here would be assigned to a District Attorney or a similar official in every other city in our country.
In the absence of Senate confirmation, the U.S. District Court has appointed Mr. Taylor as the interim U.S. Attorney for the District of Columbia. Considering that only 14 months remain in this President's term, and all things being equal, I was prepared to recommend that despite some misgivings, your usual procedure for confirming U.S. attorneys without a hearing would be appropriate. However, because of Mr. Taylor's response concerning an Assistant U.S. Attorney that Mr. Taylor hired, under pressure from Justice Department officials and your committee's hearings on this subject, I believe that I should bring this matter to your attention. Further, I do not believe that Mr. Taylor is entitled to a confirmation by the Senate and certainly not without a hearing.
Mr. Taylor came to office from a position as counselor to Attorneys General John Ashcroft and Alberto Gonzales. Mr. Taylor later hired as an assistant U.S. attorney, Jay Apperson, whose past conduct in office had compelled him to resign two prior positions. Mr. Apperson resigned his position as Assistant U.S. Attorney for the Eastern District of Virginia after a remark that offended his colleagues, suggesting a white history month in light of the celebration of Black History Month. Mr. Apperson later found work as chief counsel for the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security. He resigned after it was discovered that he had written an unauthorized letter using the signature of House Judiciary Committee Chairman James Sensenbrenner. The letter to Chief Judge Joel Flaum of the U.S. 7th Circuit Court of Appeals, written after the court had rendered its final decision in a criminal case, was based on Mr. Apperson's view that the court had not correctly followed U.S. Sentencing guidelines by allowing a sentence of 97 months rather than 120 months in the case of United States v. Lissetz Rivera. After detailing his view of the applicable law, Mr. Apperson wrote that the Court should change its ruling, "whether by the members of the panel and/or by the other judges of the Court." However, as the Court had noted in its decision, the U.S. attorney in the case had not cross-appealed to request the change. The Apperson letter went on to inform the Chief Judge that a similar letter had been written to U.S. Attorney Alberto Gonzalez because of "what appears to have been a failure by the government to adhere to Department of Justice guidelines with respect to the appeal of illegal sentences."
Mr. Apperson knew that he was crossing bright separation of powers lines in writing ex parte letters asking for a change in a final judicial ruling in the name of the chair of an important oversight committee. He acknowledged "caution in making such an inquiry into judicial action" but justified his letter, writing that when "judicial actions . . . are contrary to law, it is not only appropriate but essential that Congress act." Mr. Apperson, of course, had to leave his congressional position when this breathtaking violation of congressional ethics and constitutional separation of powers came to light.
The Eastern District of Virginia refused to rehire Apperson. However, according to Mr. Taylor, highly placed Justice Department officials, including Michael Elston, the chief of staff to Deputy Attorney Paul J. McNulty, Acting Associate Attorney William W. Mercer, and Principal Associate Deputy Attorney William E. Moschella and Michael A. Battle, who then had oversight over U.S. attorneys, called Mr. Taylor to asking him to hire Mr. Apperson. Mr. Taylor has said he also "may have" discussed hiring Mr. Apperson with Monica Goodling, who later left her position as the agency's senior counsel and White House liaison following accusations that she considered the political background of U.S. attorneys in recommending appointments. Mr. Taylor told me that the decision to hire Mr. Apperson was his.
However, Mr. Taylor exempted Mr. Apperson from all three stages of the required screening process for applicants, including the in-depth interview with the U.S. attorney himself, because of his prior experience as a prosecutor, according to Mr. Taylor. In any case, considering Mr. Apperson's conduct, the pressure from the Justice Department officials is troublesome, particularly in light of recent Senate hearings concerning allegations of the use of political considerations in the firing of U.S. attorneys.
However, I recognized that Mr. Taylor had been under exceptional pressure from his superiors and considering that the time remaining for his tenure would probably be relatively brief, I sought to give him the benefit of the doubt. I therefore questioned him further noting that Mr. Apperson's violations as a member of the bar had apparently been motivated by excessive zeal from his work as a congressional staff member on legislation that required that the names of judges who downgraded sentences be reported to the Attorney. Mr. Taylor told me that Mr. Apperson had been assigned to the appellate division and not the Superior Court, where line attorneys conduct trials and recommend sentences. Mr. Apperson would still be exposed to appeals concerning federal sentencing guidelines, but this assignment appeared to demonstrate that Mr. Taylor recognized the risk posed because of Mr. Apperson's conduct in his prior employment. I therefore, sought assurances from Mr. Taylor that Mr. Apperson would continue where he was, or at least, not be assigned to trial work. Mr. Taylor was unable to give me that assurance when I interviewed him but said that he would get back to me. When my office did not hear from Mr. Taylor, we contacted his Deputy Assistant Attorney, Nancy Scott-Finan to inquire about the issue. Ms. Scott-Finan informed my staff that Mr. Apperson would be treated "the same as every other attorney."
I do not believe that Mr. Apperson was entitled to an appointment as an assistant U.S. attorney anywhere in light of his past conduct. His appointment in this office in this city is particularly troubling. What action, if any, is possible or should be taken is left to your discretion. However, I ask that Jeffery Taylor not be given the honor and confidence signaled by Senate confirmation.