About The US Attorneys

The story is far from finished, but I wanted to say a few things that I think will make it easier to follow for the rest of the way.

The first thing to understand is the charge.

The problem is not that Bush fired some U.S. Attorneys (USAs). As has been pointed out ad nauseam, USAs are political appointees who serve at the president’s pleasure. Legally, they can be removed for any or no reason, at any time. And, upon taking office, most presidents do replace the current president’s USA’s. They do so mostly because they want folks who will pursue their general legal priorities: I.e. they’ll be tough on drug crimes, or gun crimes, or corruption, or civil rights cases, or whatever.  

The charge in this case, though, is that Bush fired some USAs because those USAs refused to tailor their prosecutions in specific cases so as to benefit Republicans. For instance, firing one USA because that USA would not seek an indictment for a meritless charge of voter fraud.

Former U.S. Attorney John McKay said Monday night he was “stunned” to hear President Bush told Attorney General Alberto Gonzales last October that Bush had received complaints about U.S. attorneys who were not energetically investigating voter-fraud cases.

McKay doesn’t know if Republican unhappiness over his handling of the 2004 election cost him his job as U.S. Attorney for Western Washington, but the new revelations contained in a Washington Post story are sure to reignite questions about McKay’s dismissal and whether it was connected to Washington state’s hotly contested governor’s race.

“Had anyone at the Justice Department or the White House ordered me to pursue any matter criminally in the 2004 governor’s election, I would have resigned,” McKay said. “There was no evidence, and I am not going to drag innocent people in front of a grand jury.”

(There’s more on that charge here.)

Or firing another because he would not rush an indictment of a Democratic candidate so that it could occur prior to an election.

In back-to-back hearings in the Senate and House, former U.S. attorney David C. Iglesias of New Mexico and five other former prosecutors recounted specific instances in which some said they felt pressured by Republicans on corruption cases and one said a Justice Department official warned him to keep quiet or face retaliation.

Iglesias’s allegations of congressional interference have prompted a Senate ethics committee inquiry. Yesterday he offered new details about telephone calls he received in October from Sen. Pete V. Domenici (R-N.M.) and Rep. Heather A. Wilson (R-N.M.), saying he felt “leaned on” and “sickened” by the contacts seeking information about an investigation of a local Democrat.

Or firing another because she investigated one too many instances of Republican corruption.

In addition to Iglesias, four other fired prosecutors were conducting political corruption investigations of Republicans when they were dismissed. Carol S. Lam of San Diego, for example, oversaw the guilty plea of former Republican representative Randy “Duke” Cunningham, and brought related indictments against a former CIA official and a defense contractor.

The issue is not that they were fired, but why they were fired. So anyone who responds to this with “Oh, well Clinton fired all 93 of them” is either confused themselves, or else deliberately trying to confuse everyone else.

The second thing to get straight is why this matters. That ought to be obvious. No-one should need it explained to them why it is bad for prosecutors to enforce the law according to a party’s agenda, or be pressured to do the same. Some things are self-evident. Nevertheless . . .

Like I said the other day, prosecutors, especially USAs, have an ENORMOUS amount of power. No one gets to review their decision to prosecute people. If they want to indict someone for, say, voter fraud, they are perfectly free to do so. (Someone might object that the grand jury stands between the USA and an indictment. To that objection, I offer two words about grand juries: “Baaa, baaaa.”) On the other hand, if they decide not to prosecute, then there will be no prosecution. The Fibbies and other investigative agencies can find all the evidence they want, but if the USA says no, that’s that.

Again, I’ve said this in a prior post, but because of this power USAs literally hold both the law and people’s live in their own hands. An indictment, even if the person is later found not guilty, will seriously harm the individual. The expenses of an attorney (especially great in federal court), the anxiety of wondering if they will spend years in federal prison, the loss of friends, jobs, and reputations; these things come with every indictment. As for the law, a law does not matter if it is not enforced. And if it is enforced selectively, it loses its inherent authority. It become nothing but another tool of party politics.

The damage caused by an indictment is justified if the indictment was justified. But if the indictment was simply to help a party win an election? That is beyond outrageous. And who will trust either the law or our elected official if we discover that corruption investigations depend on the party membership of the allegedly corrupt?

In short, USAs have to be above politics. Sure, they ought to have the same general prosecutorial priorities as does their boss. But concerns over the impact on their party must not play any role in how they handle a particular case.

Now someone could object that this is only a handful of USAs. But as others have already noted, this is just the ones who said no to the pressure. How many are there who agreed to tailor their cases so as to benefit the party?

In my mind, this is incredibly serious. If these charges are true, than the president and the AG were willing to sacrifice people’s lives and rule of law in favor of their own party.  There are no excuses. This is wrong. If it is true, heads need to roll.

The third thing to understand is the proof.

To start, there are the firings themselves. Firing all USAs at once would not be unusual. Firing eight in the middle of the president’s term? Very strange:

At least 54 U.S. attorneys appointed by the President and confirmed by the Senate left office before completion of a four-year term between 1981 and 2006 (not counting those whose tenure was interrupted by a change in presidential administration). Of those 54, 17 left to become Article III federal judges, one left to become a federal magistrate judge, six left to serve in other positions in the executive branch, four sought elective office, two left to serve in state government, one died, and 15 left to enter or return to private practice. Of the remaining eight U.S. attorneys who left before completing a four-year term without a change in presidential administration, two were apparently dismissed by the President, and three apparently resigned after news reports indicated they had engaged in questionable personal actions. No information was available on the three remaining U.S. attorneys who resigned.

That means at most five USAs over the last twenty five years left office mid-term at the request of the president. So Dubya just canned more mid-terms at once than had been done in total over the prior two and a half decades. Is it more likely that we had a sudden increase in poor performing USAs? Or that there were more sinister rationals?

Then there is the inability of anyone in the administration to consistently explain in detail how or why the USAs were fired. If when the story first broke, AG Gonzalez had produced negative performance reviews, or some other objective rationale, and stuck to it, he would be much more believable. But all we have heard is vagaries about “personnel decisions” and prosecutorial priorities and serving at the pleasure of the president. His underlings even lied to Congress about whether the president’s office was involved in the decision. If there was a legitimate reason for the firing, why has it been so hard for anyone to get the story straight?

And as for the performance rationale, it looks like most of them had been given excellent reviews. For Iglesias, Gonzalez himself said he would provide an excellent reference.

And don’t forget the testimony of the USA’s. These are party people. People who were good enough Republicans to get the appointment in the first place. Yet they certainly feel like they were fired because they would not conduct their prosecutions so as to help Republicans. And they testified to that fact.

Like I said, the story is not finished. There may be some evidence out there that exonerates Bush and Gonzalez. But if it turns out that they did in fact fire these USAs because they refused to tailor their prosecutions so as to benefit the Republican party, Gonzalez must go.

The is not a charge that can be 12(b)(6)’d. What that means, for you non-lawyers, is that this is not a case where the defendant can say “So what, even if everything you say is true, there is no case.” If these allegations are true, we have seen a serious, serious, undermining of the rule of law. Those responsible will need to pay and pay dearly.

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4 Comments on “About The US Attorneys”

  1. Willie Says:

    You are right, this story is far from over. It now appears that Karl Rove was heavily in the mix, a man that plays politics like masters play chess.

  2. Mark Says:

    If Rover really was involved, it looks like he miscalculated on this one. How could such an action not draw attention?

  3. […] The Alablawg Commentary On Alabama Law And Society « About The US Attorneys […]

  4. […] Wheeler at Alablawg points out that these prosecutors hold tremendous power.  It’s imperative that the American people be able to trust that they will be as independent and impartial as it is humanly possible to be.  If they are turned into partisan political tools of any administration, our justice system loses its integrity. […]

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