McKay went from hero to zero with Justice Department

In the span of less than a month last summer, John McKay went from a candidate for a federal judgeship with the support of his boss, Attorney General Alberto Gonzales, to an out-of-favor employee who was about to lose his job.

The support for a McKay judgeship was so strong that when the Justice Department learned he was not among three finalists to fill a seat on the federal bench, a senior official told the White House McKay had gotten "screwed."

Four weeks later, the same official recommended the White House fire McKay as U.S. Attorney for the Western District of Washington.

Some clues about who ultimately decided to oust McKay — and why — are contained in the 3,000 pages the Justice Department handed over to Congress Monday night concerning the firing of eight U.S. Attorneys last year.

E-mails show Justice Department officials were angry with McKay's aggressive advocacy of an information-sharing system that conflicted with one favored by headquarters staff, and for complaining about the delays in putting it into place. One Department of Justice official characterized McKay's behavior as "embarrassing and outrageous."

The material also includes complaints to Gonzales from Washington state Republicans angered that McKay did not file criminal charges in connection with the disputed 2004 governor's race.

McKay said earlier this month that during his White House interview for the judgeship, he was asked to explain Republican accusations that he "mishandled" the 2004 election. McKay has said his office and the FBI looked into the election and didn't find anything that warranted prosecution.

Still, how exactly McKay went from a candidate for a prestigious federal judgeship to one of several U.S. attorneys "pushed" out of his job remains unclear.

What is clear in the documents is that McKay, a Bush appointee, was once viewed as a viable candidate for the judgeship left vacant by John Coughenour's elevation to senior status in July.

On Aug. 8, Justice Department Chief of Staff Kyle Sampson contacted the White House to complain that a bipartisan panel reviewing judicial candidates did not include McKay among three finalists it recommended to the White House.

"I heard that our U.S. Attorney, John McKay, got screwed by Washington's judicial selection commission," Sampson wrote to Robert Hoyt in the White House Counsel's office. "What do you know? Can we let them know that we want to consider him along with the recommended candidates?"

The next day, in an e-mail discussion with someone else about McKay, Sampson wrote: "re: John, it's highly unlikely that we could do better in Seattle."

Sampson then went further and lobbied for McKay on behalf of Attorney General Gonzales.

"I have already raised, on behalf of AG, the issue with the White House folks," Sampson said in an Aug. 17 e-mail to Debra Yang, a longtime McKay friend who was then a U.S. Attorney in Los Angeles.

But in the intervening weeks, support for McKay — not only as a judicial candidate, but even for retaining his job — evaporated. In a Sept. 13 e-mail to former White House Counsel Harriet Miers, Sampson named McKay in a list titled: "[U.S. Attorneys] We Now Should Consider Pushing Out."

The newly released documents do not explain whether Sampson or someone else at the Justice Department decided McKay needed "pushing out." Nor do they indicate whether Miers, Deputy Counsel William Kelley or someone else at the White House told the Justice Department they wanted to get rid of McKay.

Democrats believe McKay was fired because Republicans were unhappy that he failed to file criminal charges in connection with Washington state's 2004 governor's race, a claim steadfastly denied by the Justice Department.

Democrat Christine Gregoire narrowly defeated Republican Dino Rossi after three recounts and a court challenge. On Aug. 22, McKay met with Miers and Kelley to discuss his aspirations of becoming a federal judge — presumably, it now appears, after Sampson prodded the White House Counsel's office to give McKay an interview.

During the meeting, McKay later recounted, he was asked to explain Republican unhappiness in Washington state that he had "mishandled" the 2004 election.

Included in the material released Monday is an April 1, 2005, letter from six Republicans on the Metropolitan King County Council to the Justice Department calling for a federal investigation into the 2004 election — an investigation McKay's office would have had to oversee.

Also in the materials were two formal complaints to Gonzales from Bob Williams, president of the Evergreen Freedom Foundation, an Olympia-based conservative think thank, about McKay and the 2004 governor's race.

The second Freedom Foundation complaint, dated Feb. 3, 2006, accused McKay of "serious charges of malfeasance."

The Justice Department initially said McKay was dismissed for "performance-related" issues, then cited policy differences over sentencing and an information-sharing system that McKay championed. There was nothing in the documents that linked the 2004 election to McKay's firing.

The documents did make it clear that Deputy Attorney General Paul McNulty and other senior Justice Department officials were annoyed with the tactics McKay used to promote the Law Enforcement Information Exchange (LInX) system. An Aug. 31 memo from McKay to McNulty was a particular source of irritation.

Yet there was nothing in the documents that stated the LInX dispute was responsible for McKay's dismissal.

"They didn't fire me over that," he said Tuesday.

McKay had sent a four-page letter to McNulty on Aug. 31 regarding the LInX system. The letter, which was co-signed by 16 other U.S. Attorneys, strongly called for the Justice Department to overcome delays in approving funding for LInX, and in cementing partnerships with the Departments of Defense and Homeland Security.

The letter inspired a sharp response from Justice Department official Mark Connor in an e-mail to Michael Elston and Michael Scudder, who worked for McNulty. "I believe McKay is way out of line here," Connor wrote. "I don't know what McKay's motives are, but this is embarrassing and outrageous."

Sampson resigned as Gonzales' chief of staff last week. Bradford Berenson, Sampson's lawyer, said through his assistant Monday that Sampson would not comment on any of the dismissals.

Yang, the former U.S. attorney in Los Angeles, who is now a partner at Gibson, Dunn & Crutcher in Los Angeles, said in an interview Tuesday she reached out to Sampson in August "to indicate my support for John's application for district court judge, because I thought he would have been a fine candidate."

Yang said she believed she had a good enough relationship with Sampson and other top officials that she could discuss McKay's judgeship aspirations. "Kyle was always receptive to any insights or input with respect to John," Yang said.

After her initial exchange with Sampson, Yang sent him a lengthier e-mail Aug. 17 that outlined why Yang believed the merit-selection panel did not recommend McKay to the White House.

"It was three [Republicans] of the six committee members who declined to support John," Yang wrote. "They pointed to the fact that he 'lacked trial experience,' when in reality John once served as the head of the litigation department in a very well-regarded law firm in Seattle."

Yang declined to comment Tuesday about how she gained insights into the inner workings of the merit-selection panel, whose deliberations are confidential.

John Wolfe, one of three Democrats on the panel appointed by Sen. Patty Murray, declined to confirm or deny Yang's version of events.

Jenny Durkan, the Democratic co-chair of the panel, likewise declined to comment on the group's discussions or conclusions about particular candidates. "Our bipartisan process is a unique one, and fragile in the making," she said.

J. Vander Stoep, the Republican co-chair and one of the three Republicans appointed by Rep. Doc Hastings, R-Pasco, was more forthcoming.

"I received a call from the White House Counsel's office, indicating that a high Justice Department official had asked him to make a special inquiry and I confirmed, yes, McKay had applied, but he didn't receive a majority of votes on the panel," Vander Stoep said Tuesday.

Hoyt wanted to know why McKay didn't make the cut.

"I said first of all in his interview Mr. McKay indicated he had taken through trial fewer than 10 cases. In my mind that was a disqualification to sit on the federal district court bench," Vander Stoep said.

Dick Derham, another Republican on the panel, was given the task of checking McKay's references.

"No one was talking about his courtroom skills," Derham said. "They were talking about how he was creative about settling this case. That's good. Those are good lawyer skills."

But it wasn't the sort of courtroom experience Derham was looking for.

David Bowermaster: 206-464-2724 or dbowermaster@seattletimes.com

Seattle Times chief political reporter David Postman contributed to this report.