Deconstructing the Dispute over the Politicization of U.S. Attorney Firings:
The News Stories, the Testimony, and What Should Happen Next

By CARL TOBIAS

Monday, Mar. 12, 2007

Last Tuesday, March 6, the story of how the Bush Administration peremptorily fired eight U.S. Attorneys reached a fever pitch. Since the preceding week's revelation by New Mexico U.S. Attorney David Iglesias that members of Congress contacted him about indicting a Democratic contractor before the 2006 elections, the controversy has accelerated. Then, last Tuesday, the dispute culminated in the testimony of six of the eight dismissed U.S. Attorneys, before the Senate and House Judiciary Committees, regarding their forced resignations.

Now, the Administration and Congress must expeditiously resolve this controversy in order to restore public confidence in the federal justice system.

The Story that Keeps on Giving: Recent Revelations

The Wall Street Journal has characterized the tale as the story that keeps on giving. At the height of the frenzy, it seemed as if every day and each hour brought a new revelation. In addition to what now seems to have been misconduct by the Administration, there may be evidence of Administration attempts at a cover-up.

The recent developments relating to Iglesias are typical. As soon as the U.S. Attorney revealed that lawmakers had contacted Iglesias about an indictment's political timing, several New Mexico members of Congress stated that they hadnot. However, New Mexico Republican Senator Peter Domenici and Representative Heather Wilson said they had no comment. On Sunday, March 4, Domenici issued a statement admitting that he had contacted Iglesias, but denied pressuring the U.S. Attorney.

On Monday, a public interest group called for the Senate Ethics Committee to investigate Domenici. Michael Battle, the Justice Department official who notified the U.S. Attorneys that they must resign, announced his own resignation. Moreover, Attorney General Alberto Gonzales admitted that "we could have rolled out the decisions more smoothly, but said he stood "by the decision to make the changes" and denied that they were political. Representative Wilson acknowledged that she had contacted Iglesias but did not ask about the indictment's timing or "pressure him in any way."

The same day, evidence of a possible cover-up arose: McLatchy Newspapers reported that Michael Elston, the chief of staff for Deputy Attorney General Paul McNulty, had called a U.S. Attorney and made a "pointed comment that indicated somehow anyone who talked might become more embarrassed if the story continued on." Another of the eight prosecutors said he "took it to mean that negative, personal information would be released" [and] "if we made public comments or were to testify," the Justice Department would "make us regret that we were talking."

On the morning of the Tuesday, March 6 hearing, the New York Times broke a story involving a ninth former U.S. Attorney, Thomas DiBiagio of Maryland. DiBiagio claimed he was fired in 2005 because of political pressure relating to the U.S. Attorney Office's ongoing corruption investigation, which involved several associates of then - Maryland Republican Governor Robert Ehrlich.

The Justice Department's Refusal To Give Thorough Justifications for the Firings

Perhaps most surprising in all the hubbub was the comparatively unsurprising nature of the U.S. Attorneys' testimony on Tuesday. Although the lawyers revealed numerous details about the firings, the U.S. Attorneys provided little new information --mainly because the Justice Department had not furnished the lawyers' purported reasons that the U.S. Attorneys were fired. Without being able to examine and challenge these rationales, it is more difficult to ascertain whether the firings were political, rather than based on secret but legitimate considerations.

Several did experience political pressure while in office. One striking piece of evidence was Iglesias's testimony that he "felt leaned on [and] pressured to get these matters moving" when Senator Domenici called, and Iglesias described the conversation as "unprecedented." John McKay, the U.S. Attorney in Seattle, similarly testified that he was contacted by Washington Republican Representative Doc Hastings's office and asked about the status of an ongoing investigation.

Just as striking was the email sent by Bud Cummins, the deposed Arkansas U.S. Attorney, to most of his ousted colleagues. Cummins and several others confirmed their impression that the high-level official was threatening to reveal damaging information about them, if the U.S. Attorneys testified. Deposed U. S. Attorneys Daniel Bogden of Nevada and Paul Charlton of Arizona testified that Acting Associate Attorney General William Mercer explained that their removal "would be an opportunity to put others into those positions so they could build their resumes."

Finally, William Moschella, the Principal Associate Deputy Attorney General, did provide some explanations why the Justice Department had fired most of the U.S. Attorneys.

On Wednesday, Attorney General Alberto Gonzales published an opinion piece in USA Today describing the dispute as an "overblown personnel matter," and that rhetoric only served to fuel the controversy. At a Thursday Senate Judiciary Committee meeting, GOP senators criticized the opinion piece and the Department handling of the firings, voicing concern about the harm to the prosecutors' reputations. Gonzales then acquiesced and agreed that five high-ranking officials involved in the firings would meet with Congress.

What's Next?

Now that the fired U.S. Attorneys have testified, it is important to take a step back. Some Democrats portray these developments as an enormous scandal, which has overpoliticized U.S. Attorney hiring and firing -- even analogizing the forced resignations to the "Saturday Night Massacre." For their part, numerous Republicans claim the events are politics as usual, pointing out that, after all, U.S. Attorneys do serve at the pleasure of the president, but ignoring the long tradition of independence that has meant U.S. Attorneys are, in practice, generally not fired for political reasons.

In the end, however, the dispute is more complex than either political party partisans maintain, or the mainstream media has suggested. Accordingly, further investigation is called for - as follows:

First, the Justice Department should either comprehensively explain why it fired each of the U.S. Attorneys -- so that its rationales can be held up to public, press, and perhaps Congressional scrutiny -- or appoint a special prosecutor to investigate. Moreover, if the Department refuses to act, Congress should continue scrutinizing the forced resignations, using hearings and subpoenas, if necessary, to ascertain precisely what occurred. Last Friday, the House Judiciary Committee wrote White House Counsel Fred Fielding and requested much information regarding possible White House involvement in the firings. In particular, the Department (or Congress, if necessary) should investigate whether Elston's actions were improper.

In addition, the respective Senate and House Ethics Committees should investigate the contacts by Domenici, Wilson, and Hastings to ascertain whether they violated any ethics strictures. Finally, Congress should return to federal judges the authority, given to the Attorney General last year, to appoint interim U.S. Attorneys when nominees are not confirmed in six months. On Thursday, Gonzales announced that the Department would not oppose a bill making that change.

The American people, the firedU.S. Attorneys, and the federaljustice system deserve thorough explanations for the recent developments involving the forced resignations. Only after the relevantinformation is available, will it be possible to ascertain the truth about the firings and their effects on the delivery ofjustice.


Carl Tobias is the Williams Professor at the University of Richmond School of Law.

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