ATTORNEY GENERAL ALBERTO GONZALES ANNOUNCED HIS RESIGNATION ON THE MORNING OF AUGUST 27—JUST A FEW DAYS AFTER FORMER U.S. ATTORNEY CAROL LAM ’85 MET WITH Professor George Fisher for the interview that follows. It was interesting timing. Lam agreed to the interview back in May—but delayed meeting in the hope that the congressional hearings and media attention surrounding the historic firing of eight U.S. attorneys, including Lam, might dissipate. But the controversy that the firings unleashed continues still. Today more questions than answers remain.
Whatever one’s views on the propriety or legality of the administration’s actions, the firings will be remembered as a political blunder—as well as a public reckoning. And this is Lam’s main point. She is, even after the events of the past year, optimistic about the future of the DOJ because of the public’s attention to the controversy. “For me it’s not a loss of faith in the Department of Justice or this country. It’s really a reaffirmation and a recognition that we can’t take justice for granted,” she says.
Since her untimely departure from the DOJ, Lam has landed firmly on her feet. Now the acting general counsel at QUALCOMM, she has begun her private-sector career at the top. Lam was—until February of this year—a dedicated government prosecutor with a stellar career rise marked by receipt of both the Director’s Award for Superior Performance and the Attorney General’s Award for Distinguished Service. Her prosecutorial career was interrupted only by two years’ service as a San Diego Superior Court judge.
George Fisher shares with Lam an inside knowledge of the criminal justice system. Before joining the Stanford Law School faculty in 1995, he was an assistant attorney general in the Civil Rights Division of the Massachusetts Attorney General’s Office and an assistant district attorney for Middlesex County, Massachusetts. He is the Judge John Crown Professor of Law and director of the Criminal Prosecution Clinic.
FISHER: YOU LEFT YOUR POSITION AS U.S. ATTORNEY IN SAN DIEGO IN FEBRUARY AND VERY QUICKLY MOVED TO QUALCOMM AND ARE NOW ACTING GENERAL COUNSEL OF A FORTUNE 500 COMPANY. THAT’S A VERY IMPRESSIVE LANDING AFTER AN UNPLANNED DEPARTURE.
Lam: All U.S. attorneys know that there will be a time when they’re going to leave the office. I’ve watched my colleagues go through it, and I’m watching them go through it now. Having held that position, I know that you have a panoply of possibilities before you. When I started my tenure as U.S. attorney in 2002, I had an acute awareness that if the president served two terms, I would want a break after the second term to spend time with my family. The QUALCOMM opportunity came up right away, so I didn’t exactly follow that plan. But I don’t think I could have landed in a more interesting position in a more exciting place than QUALCOMM. It’s on the cutting edge in so many areas.
HOW DID YOU MANAGE TO TRANSITION SO SMOOTHLY TO TECHNOLOGY?
It’s true; I don’t have a technical background. But QUALCOMM is involved in a lot of litigation, and that’s where I hope I’m able to contribute because I do have a lot of litigation experience. I also have experience managing a law office—that’s a big part of the U.S. attorney position.
CAN STANFORD LAW SCHOOL CLAIM ANY CREDIT FOR HAVING TRAINED YOU FOR SUCH A WIDELY VARIED CAREER?
All of it! There’s something very special about going to law school at a place like Stanford in California. There’s a freedom there because it’s in an area of the country where innovation and thinking outside the box are part of people’s lives.
I GATHER THIS IS YOUR FIRST ON-THE-RECORD INTERVIEW. WHY SPEAK TO SLS?
I knew that this story wasn’t going to be over quickly, and I didn’t think that adding one more voice to the chorus was helpful. But I very much value my Stanford years, and I think the law school is a good place for me to share my views about the Department of Justice, what it is and what it should be. I want to convey a positive note to students and alumni about what I think the experience will teach the DOJ. And I want to convey how much I enjoyed and appreciated my time at the DOJ. It’s a great institution and will continue to be a great institution. These temporary setbacks, with time, will have a good effect on the department, as a reminder of how tenuous the balance is between political pressures and the responsibility of the department to do the right thing at all times. For me, these events have not led to a loss of faith in the DOJ or this country but to a reaffirmation and recognition that we can’t take justice for granted. The vast majority of the thousands of people who work at the DOJ are good and true people who understand their responsibility to do the right thing in all respects. It’s a simple mandate to follow once you’ve accepted it—that when you work in the DOJ or as a U.S. attorney or as a career prosecutor, your mandate is just to do the right thing. It simplifies decision making a great deal so you don’t have to worry about other influences. You just do the right thing. Almost everybody at the department does the right thing.
WERE YOU SURPRISED WHEN YOU GOT THE CALL ASKING FOR YOUR RESIGNATION? WAS THAT IN THE AIR?
It was a complete surprise. There was no hint of what was coming, nothing in the air. We had all been at a conference together earlier in the week and were told how great a job we were doing. And, in fact, it wasn’t until a week later that I realized that I wasn’t the only one. I got the phone call and then a week later I learned that Paul Charlton and John McKay had resigned. I had just seen them at the conference, two of my closest colleagues, and they hadn’t said anything to me about resigning. So it became clear what was happening. The reason I didn’t say anything publicly for several weeks after I was asked to resign was that I knew the plan to keep it quiet wasn’t going to work. Who in his right mind could think that you could fire seven U.S. attorneys on the same day and tell them to leave on the same day and that nobody was going to notice? It was just headbangingly frustrating.
WERE YOU SURPRISED BY THE PUBLIC FIRESTORM THAT THE DISMISSALS STIRRED UP?
This is a wonderful country, and it’s a forgiving country. But it’s also a country with a relatively short attention span when it comes to news reports, and I was surprised how much attention this issue drew. Though, ironically, it renewed my faith in the country and in the public’s ability to focus on important issues. What this situation pointed out to me was that people are very concerned about the justice system. They’re very concerned about either the perception or the reality that their justice system is not working in a fair and evenhanded manner.
I’VE READ THAT A NUMBER OF U.S. ATTORNEYS COMPLAINED ABOUT MICHAEL BATTLE’S DELIVERY OF THE BAD NEWS ABOUT THE FIRINGS.
I think the language that was used with me was something along the lines of “want to take your office in a new direction.” My dissatisfaction with the way this was handled doesn’t have anything to do with Mike Battle’s bedside manner. It has to do with the decision made by people higher in the department that an appropriate way to deal with such a monumental decision would be to have somebody make calls, give people no substantive information, and expect that people were just going to accept the decision with no information. I think it was a very immature way for the department to handle it and certainly contributed to the disastrous follow-on that occurred.
YOU SERVED UNDER BOTH JOHN ASHCROFT AND ALBERTO GONZALES. HOW DID THAT TRANSITION FROM ASHCROFT TO GONZALES AFFECT YOUR LIFE AND YOUR DUTIES AS A U.S. ATTORNEY?
The structures of the department were in place, so I didn’t expect a lot of impact from the change in attorney general under the same administration. There are a great many traditions that have built up over the years at the Justice Department that should carry the institution forward on its own momentum. The people come and go, but the institution carries on. So I was surprised by how much change there was.
DID YOU GET A SENSE WHETHER, AS A BODY, THE U.S. ATTORNEYS FELT TOO CLOSELY SUPERVISED BY WASHINGTON? AND DID INCREASED SPEED OF COMMUNICATION—BY E-MAIL, BLACKBERRY, ETC.—AFFECT YOUR AUTONOMY? I
do think that was the trend. But I don’t attribute it to increased speed of communication. My perception was that there was an increased desire to manage from the DOJ—and more actively.
A LOT WAS MADE ABOUT THE LEGALITY OF THE FIRINGS. ANY COMMENT?
I’m going to answer a little obliquely. This question was raised during the congressional hearings: Isn’t it true that you serve at the pleasure of the president and that you can be asked to leave at any time? As I answered at the hearings, that statement is legally true, but the tradition of the Department of Justice historically has actually been the reverse. Everybody knows that when the administration ends, you’re probably not going to remain U.S. attorney. But until then, the assumption is that you will be allowed to remain in the position until the end of the term unless you make an egregious error. Ignoring that tradition has created a great problem for the Department of Justice, and failing to comprehend why that tradition was so important demonstrates the complete failure of DOJ management that led to this unfortunate state of affairs. The uncertainty it has caused among U.S. attorneys is just devastating for the DOJ. And it’s still shocking to me that department leadership took such an ill-advised course, without thinking through the consequences.
ALLEGATIONS MADE BY MANAGEMENT AT THE DOJ AS JUSTIFICATION FOR YOUR FIRING REFER TO A LAX RECORD WITH REGARD TO PROSECUTION OF IMMIGRATION-RELATED CRIME. HOW DO YOU RESPOND TO THAT?
The way the border situation was handled by Attorney General Ashcroft and then Attorney General Gonzales in their respective administrations is very interesting. Under Attorney General Ashcroft there was respect for the border generally and an understanding that being a U.S. attorney in a border district and having to deal with the multitude of cases that are generated by the border is an extremely difficult job. And the way any U.S. attorney chooses to manage the border situation is highly dependent on the particularities of that district, the geographic layout of the district, and the resources available in the office. There are five Southwest border districts that have large borders with Mexico, but each has its own set of issues. In San Diego we have lots of tunnels. You’re not going to see a lot of tunnels in Texas because of the Rio Grande, and that difference alone is a substantial one. And from Washington there’s often a temptation to say, “Oh, it’s a border district. It’s just a numbers game. We can ratchet it up or ratchet it down.” That was the message from Justice under Attorney General Gonzales. About a million people are arrested along the border every year, and no U.S. Attorney’s Office prosecutes more than a few thousand—felonies or misdemeanors. So, how are you going to attack that problem? I concentrated on efficiency and getting longer sentences on bigger fish, given the fact that our resources were finite. And I was completely forthcoming about my intentions when I entered the office. I told the people who interviewed me for the position that I would rather indict ten defendants in a conspiracy than ten individual defendants, because my view is we were likely to make more impact on crime if we take down an organization—say, an alien smuggling organization. If you indict ten people in an alien smuggling ring, you’re more likely to get people who are willing to cooperate and testify and you have to go through only one set of motions and one trial rather than ten. And so, this is a more efficient way of prosecuting.
AND IT BECAME A NUMBERS GAME—
Yes. When you bring one indictment of ten people, you get only one statistic. Or if you prosecute, say, a corrupt border patrol agent who is letting hundreds of aliens come through in exchange for a bribe, you get only one statistic. If you’re not going to look at either the significance of the prosecution or the length of the sentences, then you’re taking a one-dimensional view of law enforcement, and frankly I think a very immature one. So in response to your question, whenever the department asked about statistics, this was exactly the answer I would give. And the department always seemed to understand and accept that explanation as rational and reasonable, and I had no reason to believe it felt otherwise.
THE DEPARTMENT CAN’T CLAIM TO HAVE BEEN SURPRISED BY YOUR IMMIGRATION STRATEGY?
No. In fact the DOJ took my explanation and put it in a letter to Senator Feinstein and Congressman Issa in response to their inquiries about our lower statistics, which had been prompted by a U.S. Border Patrol complaint. I understood the Border Patrol concerns because its evaluations and funding probably depend to some extent on the number of prosecutions.
WERE SENATOR FEINSTEIN’S CONCERNS ALLAYED BY THE DEPARTMENT’S RESPONSE?
Yes. And I believe she stated that publicly.
IT’S APPARENT THAT THE DOJ WAS CONCERNED THAT OTHER SOUTHWEST BORDER DISTRICTS HAD HIGHER NUMBERS OF FIREARMS-RELATED PROSECUTIONS THAN DID YOURS. HOW DID YOU RESPOND TO THAT?
Other border districts actually have more serious gun problems than the Southern District of California. And that’s a part of the discussion that simply seems to drop off, which I find ironic. I think that my job as U.S. attorney, as with all U.S. attorneys, is to deal with the most pressing crime problems in the district. This is, frankly, the difficulty with a one-size-fits-all prosecution priority when it’s imposed with equal force on all ninety-four judicial districts in the United States. Inevitably you’re going to end up with an emphasis in an area that is disproportionate to the crime problem. And I made this point repeatedly to the department and in my recent testimony. Illegal firearms were simply not a great problem in San Diego and, to the extent they were a problem, the District Attorney’s Office was handling the situation very well and to the utmost satisfaction of the police chief and the sheriff. I completely understand the emphasis on illegal firearms in cities with a severe gun problem, but if I had diverted resources to firearms cases, that would inevitably have detracted from our efforts in narcotics, immigration, fraud, and other areas that were more pressing in the district. Two weeks after I was asked to leave, reportedly because I was not prosecuting enough gun cases, representatives of the DOJ came out to San Diego to investigate why we had one of the lowest violent crime rates in the country and the lowest violent crime rate in San Diego in twenty-five years. So that just points out to me the fallacy in this criticism that we weren’t doing enough illegal firearms cases.
DID YOU HAVE ANY PARTICULAR UNDERSTANDING WITH THE LOCAL DA WITH REGARD TO THE PROSECUTION OF CRIMES?
Oh yes. I wanted to identify areas in which federal prosecution might assist in the overall effort to reduce crimes associated with illegal firearms, so we established a protocol with the DA’s office to determine cases where we could get a substantially higher prison sentence in federal court for any illegal firearms case. Such cases would be referred to us rather than handled by the DA’s office. I thought it was a reasonable division of labor, and everybody was very cooperative. The question was whether I should forcibly take cases from the DA’s office to meet an arbitrary quota of gun prosecutions— or look at what’s best for the district in terms of division of responsibility among the city attorney, the district attorney, and the U.S. Attorney’s Office for prosecuting crime. And I think the latter is the more rational way to approach the job. It’s better for the district as a whole.
DEPUTY ATTORNEY GENERAL PAUL MCNULTY WROTE IN AN E-MAIL, “I’M STILL A LITTLE SKITTISH ABOUT BOGDEN” IN REFERENCE TO DANIEL BOGDEN, U.S. ATTORNEY IN NEVADA, Stanford Lawyer / Fall 2007 27 “WHO IN HIS RIGHT MIND COULD THINK THAT YOU COULD FIRE SEVEN U.S. ATTORNEYS ON THE SAME DAY AND TELL THEM TO LEAVE ON THE SAME DAY AND THAT NOBODY WAS GOING TO NOTICE? IT WAS JUST HEADBANGINGLY FRUSTRATING.” CAROL LAM ’85 Stanford_p24-28:1 tracking migration.fall.04 10/12/07 10:23 AM Page 27 ONE OF THE SEVEN DISMISSED ON DECEMBER 7. MCNULTY CONTINUED, “HE HAS BEEN WITH DOJ SINCE 1990 AND AT AGE 50 HAS NEVER HAD A JOB OUTSIDE OF GOVERNMENT. . . . SORRY TO BE RAISING THIS AGAIN/NOW; IT WAS JUST ON MY MIND LAST NIGHT AND THIS MORNING.”
That e-mail highlights just how arbitrary and loosely based these decisions were, and therein lies the problem. Historically, there’s been a very, very high bar set for any decision by the Department of Justice to ask a United States attorney to leave. If a U.S. attorney was asked to leave, that request was preceded by a well-documented and thorough investigation of some allegation of misconduct or poor judgment. And to read an e-mail like that, suggesting that people were waking up in the middle of the night worried that maybe it wasn’t the right decision because somebody’s really not such a bad guy—this is not the way that important decisions should be made. What has been absolutely devastating for the department has been to see the after-thefact justifications—the sit-down sessions that our former colleagues back at the department participated in to try to justify these decisions, where everything was thrown in, including the kitchen sink—reasons that, frankly, I think are embarrassing. Reasons such as somebody spent too much time working on Indian affairs, or that Carol Lam personally tried a case and that’s a terrible thing, or that a U.S. attorney had the nerve to want to have one more conversation with the attorney general about whether to seek the death penalty. To criticize United States attorneys for trying to do their jobs conscientiously has created a chilling effect. It demonstrates to me that, at least for a time, the Department of Justice had completely lost its way. T
HE SAN DIEGO UNION-TRIBUNE REPORTED THAT THE SAN DIEGO CITY ATTORNEY, MICHAEL AGUIRRE, SAID, “SHE’S BEEN BY FAR THE MOST OUTSTANDING U. S. ATTORNEY WE’VE EVER HAD.” A LOCAL FBI AGENT ALSO PRAISED YOU PUBLICLY. NO DOUBT YOU FOUND THE SUPPORT GRATIFYING?
Of course. We had a very, very good and competent interagency group; we knew each other very well, we were able to react quickly to situations, and disregard for that has been one of the saddest things about this whole event. Whatever the motivations for this sweeping dismissal, one thing that did not seem to work itself into the calculations of those who made the decision was what they would be losing. And what they lost was a lot of years of experience and accumulated wisdom of a lot of U.S. attorneys. I can’t speak highly enough of my colleagues who were fired—who really understood their districts and their offices and law enforcement. And this at a time in our country when we should be clinging to experienced prosecutors who really understand their agencies. It’s a blow to good law enforcement.
YOU DON’T REGARD WHAT’S HAPPENED AS LONG-TERM POLITICIZATION OF JUSTICE?
No, because it can’t be. If anything is clear from this experience, it’s that people will pay attention until the ship rights itself. That is why I am optimistic. This is not the first time that this type of issue has raised its head at the Department of Justice. We had the Saturday Night Massacre. And maybe once a generation we’re going to have to have a reminder. The decision to simply ask a number of U.S. attorneys to leave at the same time for not very compelling reasons was not in itself necessarily an illegal act, but it so transgressed the unwritten understanding and traditions of the department that, ironically, I think it has now reinforced them. WHAT ABOUT THE EFFECT
THESE EVENTS HAVE HAD ON THE DOJ?
What these events did show me is that you can’t have a Department of Justice that’s a straight shot to the White House, and that was really the problem here. The rationale for the firings became so ridiculous and no one seemed to wonder about how the remaining U.S. attorneys would react. It was devastating to the U.S. attorney community because it used to be that you could simply say, “That’s the decision I’m making because I’m the U.S. attorney, and it’s within my discretion to make it and that’s the answer.” Now that authority is being second-guessed. But I’m optimistic; it’s a good thing that everything has come to light.
WOULD YOU CONSIDER TAKING A PUBLIC SERVICE POSITION AGAIN?
You know, public service is a wonderful thing, and I’ve never viewed it as a sacrifice. Certainly it’s a sacrifice in terms of pay, but not in any other respect. It’s a huge honor. I feel very fortunate that I’ve had the opportunity to work in the public interest as I see it for the past twenty years. And I’m really enjoying my time in the private sector now. I love QUALCOMM. It’s a wonderful and fascinating company that’s on the cutting edge of technology. One day I may go back to the public sector because going back and forth reminds you of the good things about both sides. ANY PARTING THOUGHTS? I never imagined that I would have the opportunity to be a United States attorney. And it was—even now, after what’s happened—an amazing honor. I was talking with a former colleague about this, and I asked him, “If you’d known that it was going to end like this, would you still have done it?” And he said, “Without a doubt, no question about it.” And I agree. Being a U.S. attorney is, I think, one of the most phenomenal jobs you can have as an attorney and as a prosecutor. It was a full, flourishing, jam-packed four and a half years. I have no regrets about anything we did or how we did it, and we were able to do several cases from beginning to end within that time period. I really couldn’t have asked for a better experience.