Bush Pick for No. 3 at Justice Withdraws

Bush Pick for No. 3 at Justice Withdraws
By MARY CLARE JALONICK
Copyright © 2007, The Associated Press
Published June 23, 2007, 3:05 AM CDT

WASHINGTON -- President Bush's pick to be the No. 3 official in the Justice Department asked to have his nomination withdrawn Friday, four days before he was to testify before the Senate Judiciary Committee.

Bill Mercer sent a letter to Attorney General Alberto Gonzales saying it was unlikely that the Senate would confirm him as associate attorney general, 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.

The Judiciary Committee had scheduled a hearing on Mercer's nomination for Tuesday. A spokeswoman for the committee had said senators needed the facts from an investigation into the firings of several federal prosecutors before he 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 "With a confirmation hearing looming next Tuesday, they have withdrawn this nomination to avoid having to answer more questions under oath."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 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.

Mercer said in his letter to Gonzales that he believes he would not be confirmed promptly, if ever, "in part by 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 his 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 Pennsylvania Sen. Arlen Specter, the top Republican on the Judiciary Committee, have said the department is so dysfunctional and that it suffers with Gonzales still at the helm. But with Bush's support behind him, Gonzales shows no signs of resigning. 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 two 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 and said the change would address their concerns.

But a spokesman for Tester said Mercer's request for withdrawal "was too little, too late and something doesn't smell right."

"He decided to sneak out the back door only days before having to face, under oath, tough questions that he's been avoiding for months," said the spokesman, Matt McKenna.

Baucus appeared more forgiving.

"Max respects Mr. Mercer's decision," said Baucus spokesman Barrett Kaiser. "Montanans deserve a full-time U.S. attorney."

In a statement Friday, Gonzales praised Mercer as the No. 3 official at Justice and said he was "very pleased that the department will continue to benefit from his leadership, talent and experience through his role as U.S. attorney in Montana."

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.

"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.

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.

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Associated Press writers Laurie Kellman and Lara Jakes Jordan contributed to this report.