Previous articles in our continuing series on the US Attorneys: The Gonzales Seven; The Alberto Gonzales Appointments: How the Process Has Changed and Why this is so Important; Alberto Gonzales: Gaming the System Again in Arizona?

The Case of the Absentee Attorney, William Mercer, Montana
ePluribus Staff Writers: TheFatLadySings, Cho, AvaHome & Roxy
26 March 2007

bill mercerAlthough never confirmed by the U.S. Senate, William W. Mercer serves as the Acting Associate Attorney General of the United States, the third highest-ranking official in the Justice Department, and a member of Attorney General Alberto Gonzales' inner circle. He has helped to formulate crucial Department of Justice Policies regarding expansion of federal powers, and his name has surfaced in connection with the firing of eight US Attorneys.1

He also serves as the US Attorney for the district of Montana.

How is it possible that William Mercer is charged with the task of overseeing himself? How does he do it despite having not been confirmed as Associate Attorney General? Is this a conflict of interest; are there others? And, as Acting Associate Attorney General, what policies has he pushed on an unsuspecting public?

Notably, Mercer has served the public sans Senate Confirmation before.

He began his term as U.S. Attorney for the district of Montana on April 20th, 2001. He was recommended for the position by former Senator Conrad Burns (R-MT),2 and on September 4th, 2001, four and a half months after he began his tenure, arguably close to within what, pre-Patriot Act Reauthorization, was the 120-day term for interim appointments, President George W. Bush sent his nomination to the Senate. He was confirmed by the Senate on November 6, 2001, and sworn in as US Attorney on December 4, 2001, nearly seven months after his actual appointment.3

For over a year (June 2005-July 2006), during his tenure as US Attorney for the District of Montana, William Mercer also acted as Principal Associate Deputy Attorney General for the Department of Justice, at the request of Alberto Gonzales.4 The dual positions required his simultaneous presence in Washington DC and Montana.

Then, in September of 2006, President Bush nominated Mr. Mercer to serve as Associate Attorney General, the third highest ranking official in the department.5 He was charged, among other things, with formulating policies for US Attorneys and with what appear to be substantial oversight duties for them.

According to the Department of Justice, Mr. Mercer has served in that capacity since his nomination, and will continue in his dual roles until he is confirmed by the Senate.6

The Missoulian suggests that by avoiding the confirmation process Mercer is able to hold his dual positions.. Once confirmed as Associate Attorney General, he would have to quit his position as U.S. Attorney for the Montana district:

Mercer was nominated last September to become the associate attorney general, a position that requires Senate confirmation. No date has been set for his confirmation hearing, said Senate Judiciary Committee spokeswoman Tracy Schmaler. If confirmed, Mercer would have to give up the U.S. Attorney post in Montana.7

Mercer's Oversight of Himself

One might question the impartiality of Mercer's decision-making about the "performance" of U.S. Attorneys, given that he remains a U.S. Attorney himself.

Mercer made national headlines when two of the "resigned" U.S. Attorneys -- Daniel Bogden of Nevada and Paul Charlton of Arizona -- testified before a Congressional Subcommittee that they had spoken with him regarding their dismissals.

Bogden testified that Mercer had explained to him that the Administration had a "very short, two year window of opportunity concerning the United States attorney positions". He also testified to the committee that Mercer told him "this would be an opportunity to put others into those positions so they could build their résumés and get experience as an United States attorney so that for future possibilities of being federal judges or other political type positions, they could be better enhanced to do so."8

Now, Mercer's name has been added to the short list of Department of Justice (DOJ) officials that will be subpoenaed to testify in the ongoing investigation into the U.S. Attorney purges.9

Apparently, Patrick Leahy had questions for Mercer regarding the firings:

Leahy sent a letter to Gonzales noting that the Senate and House held hearings on the "abrupt dismissal" of more than half a dozen Senate-confirmed U.S. attorneys. "During the course of those hearings, witnesses identified several Department of Justice officials who were involved in the decision to dismiss these U.S. attorneys or in the execution of that decision," the letter said. "As part of the committee's ongoing investigation into this matter, we should have the benefit of hearing directly from these officials," Leahy wrote. "To that end, I would like to work out a process for the department promptly to make these witnesses available for interviews, depositions or hearing testimony, on a voluntary basis." The letter did not name the officials, but a Senate Judiciary Committee spokeswoman confirmed that Mercer was on the list.10

Expansion of Federal Powers

Mercer has apparently also been instrumental in furthering a key policy of the Bush administration: the unprecedented expansion of federal authority.

Upon taking office as U.S. Attorney for the District of Montana, Mr. Mercer immediately announced that his top priority would be identical to that of the Justice Department -- namely, the investigation and prosecution of "terrorism." He identified himself as a strong proponent of the Patriot Act (which many believe greatly expanded federal authority to intrude on the lives of private citizens), believing it would aid in the DOJ's fight against "terror."11

Mercer served on the U.S. Attorney General's Advisory Committee (AGAC), a group of 15 U.S. Attorneys who advised former Attorney General John Ashcroft on policy matters, in 2002 and 2003.12 In 2003, Ashcroft was deeply embarrassed when a draft of Patriot 2, or the "Domestic Security Enhancement Act of 2003," was leaked to the press. The document was secretly developed by the Department of Justice with the approval of then Speaker of the House, Dennis Hastert, and Vice President Dick Cheney.13

The draft proposed huge expansions of powers for the Attorney General, including:

1) The administrative power to revoke citizenship without trial of individuals suspected of broadly defined "terrorist acts;"

2) The administrative power to incarcerate non-citizens indefinitely without trial or notification.

3) Greatly expanded powers to collect data, issue wiretaps, etc.

The American Civil Liberties Union (ACLU), the Center for Public Integrity, and Bill Moyers made the draft public.14 Follow the public outcry over its erosion of civil liberties, the act was never introduced into Congress.

Mercer also served on the Advisory Committee on Appellate Rules for the Ninth Circuit Court of Appeals.15 In that capacity, he wrote an opinion entitled, The U.S. SENTENCING GUIDELINES AND BLAKELY V. WASHINGTON-JULY 12, 2004.16

In his opinion, he argued that crime would be greatly reduced by uniformly and drastically stiffening sentences; and strict, uniform federal sentencing guidelines should override weaker and less consistent state laws. He expressed concern that a Supreme Court ruling, Blakely v. Washington, might nullify federal sentencing guidelines and urged U.S. Attorneys to attempt to set precedents by consistently expanding the prosecution of federal crimes, and by pushing for sentences that exceed state maximum limits

In his own words:

Because the final legal outcome (of Blakely v. Washington) is far from certain, we have asked prosecutors to immediately begin to include in indictments all readily provable guidelines upward adjustment or upward departure factors (except for prior convictions that are exempt from the Blakely and Apprendi rules). While the legal position of the government is that inclusion of such factors is not constitutionally required in order to enhance a guidelines sentence, in light of the unpredictable future path of court rulings, we believe it is prudent for the government to protect against the possibility that such allegations in indictments will be held necessary. Taking these prophylactic measures - more complex indictments, grand jury proceedings, and trials - will be extremely difficult and time-consuming both for prosecutors and judges. But until the effects of Blakely on the sentencing guidelines are more clearly understood, Department attorneys will be required to adopt these measures to protect the public to the greatest extent possible.17

In 2006, Mercer drew the ire of a federal judge while pursuing his policy of federalization.

Mercer brought federal charges against a Montana businessman who had been convicted of mitigated deliberate homicide twelve years previously in 1994 at the age of 19. The man had served one year in jail, and completed his parole, as well as seven years of a suspended sentence.

Since the young man's release from prison, he had built a thriving business, become a leader in the community, and had neither been arrested nor engaged in any subsequent violent behavior.

Mercer suddenly brought federal charges against the now 31-old year man, claiming he was violating parole because he owned firearms. The Billings Gazette had this to say:

MISSOULA -- In an abrasive court hearing Tuesday, Montana's chief federal judge reviled US Attorney Bill Mercer, accusing him of federalizing criminal cases arbitrarily and because it's politically popular.

"Do you ever concern yourself with justice?" U.S. District Judge Don Molloy asked Mercer during a federal court session in Missoula.

[snip]

"This is a state case," Molloy said. "What is the federal interest in prosecuting this case? Clearly this person is rehabilitated. You know what this seems like to me? This seems like a number. This seems like a statistic."18

The Unprosecution of Jack Abramoff

Previously, in 2005, Mercer had come under fire by both Montana's state Democratic Party and Judge Molloy for perceived conflicts of interest resulting from his simultaneous appointments as U.S. Attorney for Montana and Principal Associate Deputy Attorney General in Washington, D.C.

The Chairman of the State Democratic Party wrote him a letter criticizing his failure to investigate the widely publicized potential involvement of (former) Senator Conrad Burns (R-MT) with Jack Abramoff.

The following is a letter sent by the Montana Democrats to Bill Mercer.

The Honorable Bill Mercer
U.S. Attorney - District of Montana
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001

Dear Mr. Mercer,
I write to you today on a matter of utmost seriousness to Montanans. As you are well aware, Jack Abramoff pled guilty on a variety of charges in U.S. District Courts in Washington and Miami this week. The charges included fraud, conspiracy and tax evasion.

Montana's own junior Senator Conrad Burns has found himself squarely in the middle of this scandal. Not only as Washington's largest recipient of Abramoff-related campaign contributions, but as one of only four federal lawmakers reported to be subjects of a probe the Department of Justice is conducting into Mr. Abramoff's activities.

On February 14th, 2001, Sen. Burns recommended you to your current post of U.S. Attorney for Montana. At the time, Burns said you were "dedicated to serving Montana, and will do a terrific job."

On May 11th, 2005, it was reported that you would be taking on new responsibilities at the Justice Department. Specifically, that you have been promoted to a new role as a top official at Justice in a position of influence over the departments investigating and possibly prosecuting the Burns-Abramoff connections.

Mr. Mercer, is it appropriate under these circumstances for you to recuse yourself from an investigation with which you have a very obvious conflict of interest? I would like to hear back from you as soon as possible about this issue.

Now more than ever, Montanans need to know that government business is not being conducted with a wink and a nod.

I look forward to hearing from you.

Thank you,
Dennis McDonald
Chair, Montana Democratic Party
source

Judge Molloy also appealed in writing to Gonzales, claiming "Mercer was violating a residency law and shrugging off his work in Montana while holding a Justice Department position in Washington, D.C."19

According to the Billings Gazette:

"But on Tuesday, Molloy again charged Mercer with neglecting his duties in Montana while on dual assignment.

"Your lawyers are not getting their briefs in on time," Molloy said. "You're in Washington, D.C., and you ought to be here in Montana doing your work. Your office is a mess."21

It seems clear that the following questions need to be asked about William Mercer:

Why has he repeatedly held dual positions that by law must be confirmed by congress by avoiding the confirmation process?

Why did he fail to investigate -- and possibly discourage DOJ prosecution of -- the corrupt dealings of Jack Abramoff? Was this a "failure" or a "conflict of interest" brought about by his close relationship with former Republican Senator Conrad Burns?

Why has he not been -- at the least -- reprimanded for being absent from his office and allowing Assistant U.S. Attorneys (AUSAs) to run the District of Montana office. (Wasn't this a "cause for dismissal in the Iglesias matter?)

Footnotes

1 The Missoulian
2 US Department of Justice - Montana
3 Whitehouse Nominations
4 US Department of Justice - Montana
5 US Department of Justice - Montana
6 US Department of Justice - Montana
7 The Missoulian
8 Billings Gazette
9 Billings Gazette; The Missoulian; TPMMuckraker
10 Billings Gazette
11 Montana Bar
12 US DOJ and Find Articles
13 Patriot 2 Draft; Public Integrity Report; PBS; Patriot Act - Public Integrity
14 PBS; ACLU; Public Integrity Report
15 US Department of Justice - Montana
16 Senate Judiciary Testimony
17 Senate Judiciary Testimony
18 Dallas Criminal Defense Lawyer
19 Dallas Criminal Defense Lawyer
20 Dallas Criminal Defense Lawyer

About the Author: ePluribus Media Staff Writers -- this is a collaborative effort of several staff writers, including TheFatLadySings, Cho, Roxy & AvaHome.

ePluribus Media Researchers, Contributors and Fact Checkers:
avahome, cho, GreyHawk, kfred, standingup, roxy

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