Naming the Next Deputy Attorney General: Why It Should Be Chuck Rosenberg, the Current U.S. Attorney for the Eastern District of Virginia

By CARL TOBIAS

Monday, Jul. 02, 2007

Now that Attorney General Alberto Gonzales has survived the latest threat to his tenure, from the June 11 Senate no-confidence vote, Gonzales must promptly turn his attention to recommending an excellent replacement for Deputy Attorney General Paul McNulty, who recently announced his resignation.

That task shouldn't be difficult - for the Attorney General need only look across the Potomac River to Alexandria to find an ideal candidate. The U.S. Attorney for the Eastern District of Virginia, Chuck Rosenberg, plainly possesses the necessary attributes to render distinguished service as the Department's chief operating officer.

Background: The U.S. Attorney Firings Scandal, and McNulty's Resignation

Since early February, when McNulty testified that most of the nine U.S. Attorneys whom the Department recently forced to resign were fired for "performance-related reasons," Gonzales has been unable to quell the controversy engulfing the Department, which grows with each new revelation.

Excellent examples can be found not only in the testimony by McNulty, but also that by Kyle Sampson, Gonzales's former Chief of Staff, which left unclear exactly who was responsible for the dismissals. Similarly problematic was testimony by Monica Goodling, the Department White House liaison, that McNulty was "not candid" with Congress, and Goodling's admission that she "crossed the lines" by premising career Justice Department and Assistant U.S. Attorney hiring on political factors, rather than professional excellence.

On June 21, McNulty testified that he always "sought to provide Congress with the truth" but also admitted that his earlier testimony was, "in some respects, incomplete" and that he "had no knowledge of any plan to remove U.S. Attorneys prior to October of 2006." Equally troubling were apparent contradictions between some of the testimony recounted above and that of Gonzales, and seeming inconsistencies with certain of Gonzales's public statements.

Turnover has fueled the turmoil. For example, a number of assistant attorney general positions have lacked permanent appointees for protracted times, and the position of Associate Attorney General, the Department's third highest-ranking official, has lacked a permanent appointee for a long period. Indeed, on June 22, William Mercer, the nominee for Associate Attorney General, withdrew his name after serving in an acting capacity for ten months, and Michael Elston, McNulty's Chief of Staff, left his post, while, on June 29, Rachel Brand, the Assistant Attorney General for the Office of Legal Policy, became the fourth high-ranking official to announce a late-Friday afternoon resignation.

Moreover, across the country, fully one quarter of all U.S. Attorneys now hold only acting or interim appointments. This situation was exacerbated when Mr. Bush recently signed legislation that returns the authority to federal judges for naming interim prosecutors after vacancies exist for 120 days.

These developments, both individually and synergistically, have undermined professionalism, morale and effectiveness in the daily operations of the Justice Department's Washington, D.C. headquarters and in the 93 U.S. Attorney Offices throughout the nation. Department career lawyers, U.S. Attorneys, Assistant U.S. Attorneys and independent, external observers have the impressions that the Department needs better direction and management, could be disorganized, and perhaps is in disarray or is even dysfunctional.

In this situation, the action that needs to be taken is clear: Attorney General Gonzales must suggest, and President Bush must appoint, a highly-qualified attorney, one whose excellence is broadly acknowledged, to become Deputy Attorney General.

Why U.S. Attorney Chuck Rosenberg Is An Excellent Candidate

Chuck Rosenberg would be an excellent choice - for a number of reasons.

First, Rosenberg is intimately familiar with how the Justice Department functions in the areas of professionalism, policy, politics and day-to-day operations, having occupied numerous of its upper-echelon positions. Throughout the Bush Administration, he has worked in many, diverse capacities, principally focusing on counterterrorism, counterintelligence and national security matters.

In the first four years of the Administration, Rosenberg served as Counselor to then-Attorney General John Ashcroft and as Counsel to then-FBI Director Robert Mueller. Moreover, for two years, he worked as Chief of Staff for then-Deputy Attorney General James Comey.

Rosenberg next served as the Acting U.S. Attorney for the Southern District of Texas, which includes Houston and more than 40 counties, during the time of the Enron prosecution.

In 2006, Bush appointed Rosenberg as U.S. Attorney for the Eastern District of Virginia, a crucial and coveted position. The Eastern District has become the venue of choice for many "war on terrorism" prosecutions, including those of John Walker Lindh and Zacarias Moussaoui, and for numerous public corruption cases, such as the recent indictment of Rep.William Jefferson (D-La.).

Finally, when Kyle Sampson resigned as Gonzales's Chief of Staff, Gonzales appointed Rosenberg to that position on an interim basis. Rosenberg served admirably, decreasing the turmoil which was roiling the Department and initiating investigations of certain practices, such as Goodling's hiring efforts, that appeared improper.

Over the years, Rosenberg has earned a national reputation as the consummate professional prosecutor. He is very intelligent, diligent, tough-minded, independent and fair. Rosenberg is also highly respected by the country's 93 U.S. Attorneys -- many of whom know him quite well, as he has worked with them on various Department projects.

Moreover, there has thus far been no suggestion that Rosenberg participated in firing the nine U.S. Attorneys or in any of the controversial practices that the ongoing investigation of the dismissals has unearthed. That is critical, for numerous current U.S. Attorneys are deeply troubled by their colleagues' firings. They are especially concerned about what the dismissals mean for them, and about how the revelations involving the operation of the Department of Justice might affect the operations of their local offices. Rosenberg could offer valuable reassurances on this score, if he actually has no connections to the scandal.

Attorney General Gonzales Needs to Act Soon to Fill the Deputy A.G. Spot

In sum, Attorney General Alberto Gonzales should expeditiously recommend that President Bush nominate Chuck Rosenberg to replace Paul McNulty as Deputy Attorney General.

Rosenberg's wide range of experience and his many fine attributes suggest that he would be an excellent Deputy Attorney General - one who would restore the professionalism, morale, organization and calm that have recently been lacking at the Justice Department.


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

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