Bill Mercer sent a letter to Attorney General Alberto Gonzales saying it was unlikely the Senate would confirm him to a post he has held on an interim basis since September. He plans to leave Washington and turn his full attention to his work as U.S. attorney for Montana.
“With no clear end in sight with respect to my nomination, it is untenable for me to pursue both responsibilities and provide proper attention to my family,” Mercer wrote.
A spokeswoman for the committee had said senators needed the facts from an investigation into the firings of several federal prosecutors before Mercer could be confirmed.
“The White House has found many ways to keep sunlight from reaching some of the darker corners of the Bush Justice Department, but this is a new one,” Judiciary Committee Chairman Patrick Leahy, D-Vt., said in a statement. “With a confirmation hearing looming next Tuesday, they have withdrawn this nomination to avoid having to answer more questions under oath.”
Mercer said in his letter to Gonzales that he believes he would not be confirmed promptly, if ever, “in part because of statements suggesting that some senior Justice nominees will not be voted upon until the Senate receives e-mails and witnesses it has demanded from the White House.”
In an interview with the Associated Press, Mercer noted that Judiciary Committee staff interviewed him for six hours in April about the prosecutor firings. He would not comment on the timing of his request to withdraw the nomination, but he said it was his decision.
“It's been a wonderful opportunity for 10 months and I'm saddened I won't be able to continue,” he said.
White House spokesman Tony Fratto said it was unfortunate that the Senate has indicated it will not act to confirm nominees.
Mercer's name comes up at times in thousands of pages of e-mail exchanges between Justice Department and White House officials discussing the firings. The panel had authorized a subpoena for Mercer as part of its investigation.
The demise of Mercer's nomination points up the difficulty Bush faces as he tries to fill the top ranks of a Justice Department wilting under the weight of the Democratic-led congressional investigation into whether the White House, in effect, runs the agency.
Several lawmakers, including Sen. Arlen Specter, the top Republican on the Judiciary Committee, have said the department is dysfunctional and that it suffers with Gonzales still at the helm. But with Bush's support behind him, Gonzales shows no signs of resigning.
In fact, he has said he plans to stay in the post until the end of Bush's term, virtually ensuring that majority Democrats will push ahead with their investigations of his stewardship.
Montana's two Democratic senators, Jon Tester and Max Baucus, have criticized Mercer for working both jobs and have called for him to resign as the state's U.S. attorney or give up his Justice Department post. In his letter, Mercer said he “heard the call” from the senators.
“This change will address their concerns with certainty, as opposed to the uncertainty of a more protracted nomination process,” he said.
In a statement Friday, Gonzales praised Mercer's role as the No. 3 official at Justice and said he is “very pleased that the department will continue to benefit from his leadership, talent and experience through his role as U.S. attorney in Montana.”
Mercer is the sixth senior Justice Department official to leave the tight-knit circle of Gonzales' advisers in the wake of the firings of eight U.S. attorneys last December. He is the only of the group, however, to remain with the Justice Department.
Documents released as part of the congressional inquiry of the firings indicate Mercer was not intimately involved in planning the firings, but he tried to quell the controversy they created.
Two days before the firings, former Gonzales chief of staff Kyle Sampson sent Mercer a short e-mail to make sure the department's third-in-command was aware they were about to happen.
“Administration has determined to ask some underperforming USAs to move on (you'll remember I beat back a much broader - like across the board - plan that WHCO was pushing after 2004)” Sampson wrote Mercer in the Dec. 5, 2006, e-mail. USAs stand for “U.S. attorneys” and WHCO is the White House counsel's office.
“Wanted you to know in case you get some calls from the field and so you can help manage the chatter that may result,” Sampson wrote in the e-mail.
Mercer had some links to the firings - both when he was serving as the department's principal associate deputy attorney general last summer and when he returned as the No. 3 that fall.
The documents show that one of the fired prosecutors, Daniel Bogden of Nevada, claimed that Mercer told him the day he was fired that the dismissals were to make room for others to gain experience to let the Republican Party stack federal judgeships with loyalists.
Bogden said he was told to resign because the Bush administration had a short window to get others into prosecutor jobs to bolster their resumes. Bush leaves office in January 2009.
During that Dec. 7, 2006, conversation, Bogden said Mercer explained the firings as “so the Republican Party would have more future candidates for the federal bench and future political positions.”
Mercer also ridiculed one of the prosecutors who was ultimately ousted.
“What that Carol Lam can't meet a deadline or that you'll need to interact with her in the coming weeks or that she won't just say, ‘O.K. You got me, I've ignored national priorities and obvious local needs. Shoot, my production is more hideous than I realized,' ” Mercer wrote in a July 8, 2006, e-mail to Mike Elston, staff chief to the deputy attorney general.
At the time, Mercer was working in the deputy attorney general's office. Lam is the former U.S. attorney in San Diego.
Earlier, on May 31, 2006, Sampson e-mailed Mercer to ask whether that office “ever called Carol Lam and woodshedded her re immigration enforcement? Has anyone?”
“I don't believe so. Not that I'm aware of,” Mercer replied.
Sampson was the first of the Justice officials to leave in the outcry over the firings. Deputy Attorney General Paul McNulty has said he will leave by the end of the summer, and Friday marked Elston's last day at the department.
Two others who were linked to the firings and have left are Monica Goodling, senior counsel to Gonzales and the department's White House liaison, and Mike Battle, director of the office at Justice headquarters that oversaw the nation's 93 U.S. attorneys.
New York Sen. Charles Schumer, a member of the Judiciary Committee and a frequent critic of Bush's Justice Department, said Friday that Gonzales “is running out of fall guys.”
“Six resignations into the U.S. attorney firing scandal, the attorney general inexplicably still acts as though he has the confidence and support of the country. He has neither,” Schumer said.
Associated Press writers Laurie Kellman and Lara Jakes Jordan contributed to this report
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