Spring 2004 - August 2006: US Attorney Fights for Policy of Tape-Recording Interrogations, Runs into Justice Department Opposition

US Attorney Paul Charlton of Arizona (see November 14, 2001) begins conferring with Justice Department officials over his idea to have federal law enforcement agents in his district tape-record interrogations of suspects. Charlton came up through the Arizona state criminal justice system, where tape-recording interrogations is routine, and he believes the practice helps prosecutors win cases. He believes the federal policy against tape-recording interrogations is causing his office to lose cases, and considers that policy antiquated and unresponsive to both crime victims and defendants. He discusses the issue with Deputy Attorney General James Comey during a closed session at a conference in San Diego. Days later, Comey’s chief of staff Chuck Rosenberg tells Charlton that the FBI opposes changing the policy. Charlton later says that that opposition is echoed by Johnny Sutton, who chairs the Attorney General’s Advisory Committee. Charlton continues to push the issue, and in May 2005 Comey establishes a working group, which includes Charlton, to formally consider the issue (see April 28, 2005). Charlton will recall that once Comey leaves the Justice Department and is succeeded by Paul McNulty, the issue no longer moves forward. In December 2005, the working group engages in an email discussion with McNulty’s chief of staff Michael Elston on the merits of the policy, but McNulty remains unconvinced. By the end of 2005, the working group has not reached a consensus. In February 2006, Charlton implements the policy in his district. He believes, he later says, that the fact that his office has federal jurisdiction over 21 Native American reservations in his district makes his situation unique. Tape-recording interrogations will help with the violent crime cases that take place on the reservations, but will not impact other districts because they do not have similar jurisdictions. He will also say that FBI agents have the option not to tape-record interrogations. He informs his office and all special agents in charge of federal agencies in his district of his decision. He does not discuss or seek the approval of senior Justice Department officials before implementing the policy. Charlton will say that most of the law enforcement agencies in Arizona are comfortable with the new policy, but the FBI and DEA complain to McNulty over the policy. McNulty will later recall speaking with FBI Director Robert Mueller, who complains that Charlton’s policy could impact criminal prosecutions in other districts that do not record interrogations. On March 1, McNulty tells Charlton to rescind the policy. Charlton refuses and tells Acting Principal Deputy Associate Attorney General William Mercer that he is willing to resign over the issue. McNulty asks Mercer to work with Charlton. Mercer persuades Charlton to design a pilot project for taping interrogations rather than offer his resignation, and promises that it will receive a positive review. Mercer also informs Charlton that McNulty is upset because Charlton did not clear the procedure with his office before implementing it. Charlton asks for something in writing from McNulty’s office confirming the pilot project, and receives an email from McNulty’s chief of staff Michael Elston that reads: “[McNulty] is very interested in having you submit a proposal to have a pilot program in your district. Such a proposal would receive expeditious consideration. [McNulty] understands this issue and is interested in energizing the department’s consideration of it. You are the best advocate for the proposed policy, and he hopes you will play a significant role in the department’s review and the interagency review process.” McNulty’s staff recommends that McNulty approve the program in August 2006, but McNulty takes no action on it, apparently ignoring repeated pressure from Charlton through Mercer. McNulty will later say he never supported the program, though apparently no one in his office informed Charlton of that fact. McNulty will also later say that he probably discussed the matter with Kyle Sampson, the chief of staff to Attorney General Alberto Gonzales, when discussions of firing US Attorneys came up. However, McNulty will say that he does not consider Charlton insubordinate, and does not view Charlton’s actions as constituting an offense requiring termination. [US Department of Justice, Office of the Inspector General, 9/29/2008]