WASHINGTON – They’re political appointees who serve at the pleasure of the president, and can be removed at any time. So why the big flap over the recent firings of eight U.S. attorneys?
Several former U.S. attorneys and legal scholars say the timing of the Bush administration’s replacement of top federal prosecutors is not only atypical, but also a potential threat to the impartial exercise of justice.
“The sanctity of that position, in terms of that position being immune from any kind of pressure from the administration or Congress, has been the hallmark of the U.S. attorney process. It’s been the hallmark of the federal system of justice,” said W. Charles Grace, a former U.S. attorney for Illinois’ southern district.
“If what is being alleged proves to be accurate, it’s scary. Because it removes that buffer.”
Last week, U.S. Attorney General Alberto Gonzales found himself in hot water, days after several of the fired U.S. attorneys testified that they had received politically motivated pressure to speed up ongoing prosecutions of voter-fraud charges against Democrats.
His top aide resigned. Then, the White House released e-mail correspondence with Justice Department officials regarding the voter-fraud cases. Officials said President Bush and his top adviser, Karl Rove, also passed along complaints.
The apparent goal: Secure verdicts against Democrats and use them as leverage in the months before midterm elections.
The Senate Judiciary Committee also has voted to subpoena five top Justice Department officials to testify in front of the committee and detail what happened. The senators are pondering the option of issuing subpoenas to Rove and Harriet Miers, former White House counsel.
Some Republicans, however, contend that the administration and the Justice Department have done nothing wrong or illegal.
Whatever the outcome, it’s an issue that appears to have some staying power.
The federal government employs 93 U.S. attorneys who are scattered throughout the states to prosecute and investigate potential violations of federal laws. The president nominates them to a four-year term, with the Senate’s approval.
Typically, almost all of them lose their jobs when a new political party wins control of the White House, according to several former U.S. attorneys. A new president will likely name a new attorney general, who wants to clean house and have a new team to work with.
But this time, the eight attorneys were fired in the middle of Bush’s second term in office, a move even more unusual because seven were fired on the same day in December, a month after the midterm elections.
“I think it does smell,” said Frank DiMarino, a former federal prosecutor who served under six U.S. attorneys in Florida and Georgia during his 18-year Justice Department career. “There’s no problem with putting somebody who has been loyal to the party into the position, but once they’re in place, you have to give U.S. attorneys independence.”
DiMarino, now dean of Kaplan University’s School of Criminal Justice in Chicago, said Bush’s decision to fire his appointees sent the message that prosecutors need to look over their shoulders as they carry out their duties. Some of the fired prosecutors contend they were ousted for resisting political interference in their investigations.
“It has a ripple effect. People think, ‘When will the next shoe drop? Is this a case I should be pursuing?’ ” DiMarino said. “A U.S. attorney is compelled to follow the evidence wherever it may lead. There should not be political considerations.”
The firings also called into question the credibility of prosecutors who kept their jobs.
“If those people (who were fired) were not following policy or were not responding to political suggestions about going after Democrats, what about those who were kept?” said Joseph DiGenova, a former U.S. attorney in the Reagan administration. “If politics gets involved in decision-making about specific cases, that’s when it gets bad.”
Legal scholars and former U.S. attorneys said the Bush administration is charting new territory not for the act of firing U.S. attorneys, but for the apparent reasoning, coordination and timing of the decisions.
“This is not something that has any precedent in recent administrations, and it reflects a failure to recognize the kind of institutional damage to the U.S. attorney’s office as a legal institution,” said Sam Buell, a Washington University law professor. He worked 10 years as a U.S. attorney in New York and Massachusetts, during both Democratic and Republican presidencies.
“It showed a lack of care and foresight,” Buell said. “It sends a terrible message as to what’s guiding the decisions in this process.”
Legally, though, scholars said the Bush administration did nothing wrong. A last-minute provision inserted in last year’s renewal of the Patriot Act allows the president to appoint interim U.S. attorneys for an unlimited time, thus avoiding the required Senate approval.
“The reason why the president hasn’t done anything unlawful is because Congress, as a matter of policy, has trusted presidents to exercise this in wise and legitimate ways,” said Peter Shane, a law professor at Ohio State University.
“I don’t think Congress was thinking that if U.S. attorneys don’t beat up on the opposition party with sufficient vigor, we think it would be great for the president to get rid of them,” he said.