The Need for Continuing Congressional Scrutiny of Credible Claims that Bush Administration Hiring and Firing of U.S. Attorneys Has Been Improperly Politically-Based

By CARL TOBIAS

Wednesday, Feb. 14, 2007

On February 6, the U.S. Senate's Judiciary Committee conducted a public hearing titled "Preserving Prosecutorial Independence: Is the Department of Justice Politicizing the Hiring and Firing of U.S. Attorneys?" This hearing evaluated the revelation that the Department of Justice (DOJ) in the Bush Administration has asked numerous U.S. Attorneys -- the chief federal prosecutors for the 94 federal districts in the U.S. -- to resign.

Because the actual reasons for these departures remain unclear, Congress must continue to investigate why they happened and, if the lawyers are exiting for inappropriate reasons, address any improprieties it may find.

The Bush Administration's Requests that U.S. Attorneys Resign: Evidence of Political, Not Performance-Related, Reasons

The change that sparked the controversy was the resignation of Bud Cummins, the U.S. Attorney in Little Rock, Arkansas. A high-ranking DOJ official requested Cummins's resignation in June, suggesting that the Administration wished to afford someone else the opportunity for public service. The Administration replaced Cummins with Timothy Griffin, who had been an aide to Bush political advisor Karl Rove and had served as a spokesperson for the Republican National Committee. Last week, Deputy Attorney General Paul McNulty admitted he was "not aware of anything negative" about Cummins's job performance that would have prompted removal - suggesting that this was simply a political switch.

Last December, DOJ had asked six other U.S. Attorneys to step down: David Bogden of Nevada, Paul Charlton of Arizona, David Iglesias of New Mexico, Carol Lam of San Diego, John McKay of Seattle and Kevin Ryan of San Francisco. McNulty testified that the six were fired for non-specific "performance-related" difficulties.

There is reason, however, to doubt that. Lam and Ryan had led high-profile corruption investigations. Lam oversaw the bribery conviction of former Rep. Randy "Duke" Cunningham (R-Cal.) and the continuing probe of that instance of corruption. Ryan headed the investigations relating to major league baseball players' steroid use and corporate backdating of stock options.

When McNulty testified that the firings were "performance-related," Western District of Washington Chief Judge Robert Lasnik and his colleagues offered a strong, prompt response: "[W]e unanimously agreed that [John McKay] was an absolutely superb U.S. Attorney and by every measure the performance of his office improved during his tenure [and] for the Justice Department to suggest otherwise is unfair." Lasnik elaborated that local prosecutors and sheriffs and the FBI "never had the kind of service" in terms of "cooperation and aggressive handling of cases that they had under McKay's leadership."

McKay then himself disputed McNulty's claim that he'd been fired for performance-related reasons, saying, "[T]hat is unfair." The contention "reflects on my former colleagues in the office and the good work that we did, and I know that's not true," McKay added. McKay also stated that the DOJ official who had ordered him to resign had said nothing about "performance issues [or] management or anything else." Last year, McKay had actually received a glowing performance review from DOJ.

Bogden, the Nevada U.S. Attorney, similarly remarked that DOJ never said there was a problem with him or his office. Finally, Charlton, the Arizona U.S. Attorney, analogously stated he "certainly was given no indication there were performance concerns."

Are U.S. Attorneys' Hirings and Firings Being Based on Political Favoritism?

One major concern here is that U.S. Attorney firing and hiring may have become overly politicized. Closely related is the idea that the changes are not based on merit, but rather on political favoritism, which in turn might compromise U.S. Attorneys' independence. Senator Charles Schumer (D-N.Y.) argued that even our top federal prosecutors' resignation and appointment have been "infused and corrupted with political" considerations.

Top-level DOJ officers vociferously denied, however, that politics motivated the resignations. In January, Attorney General Alberto Gonzales testified that he would never replace a U.S. Attorney for political reasons or to disrupt an ongoing investigation. McNulty echoed these sentiments, claiming that the Administration never "will seek to remove a U.S. Attorney to interfere with an ongoing investigation or in retaliation for a prosecution." He also testified that Senators' claim of DOJ's politicization of the process was "like a knife in my heart [and] completely contrary to my experience" while remarking that the Cunningham bribery prosecution "was a good thing for the American people."

The New Law that Allows the Appointment of Interim U.S. Attorneys -and How Lawmakers Can Respond

This dispute was fueled by authority recently granted the Attorney General to appoint U.S. Attorneys on an interim basis, when a permanent replacement is not been confirmed within 120 days. A little-noticed provision in the 2006 USA Patriot Act amendments shifted this power to the Attorney General (it had previously been exercised by district judges) and allowed DOJ to appoint temporary replacements for an indefinite period of time.

Numerous senators are concerned that such "acting" U.S. Attorneys may ultimately serve until the Bush Administration's end without undergoing any Senate confirmation process. McNulty testified, in response, that this "authority has not and will not be used to circumvent the confirmation process."

One action that senators might take is attempting to ensure that the Administration promptly nominates highly competent replacements who receive expeditious approval. If lawmakers conclude that legislation is necessary, an obvious possibility would be restoring the status quo that existed before last year's USA Patriot Act amendment. Indeed, on Thursday, the Committee approved legislation that would effect this change.

Last month, Gonzales stated that judges should not name U.S. Attorneys because they "tend to appoint friends and others not properly qualified to be prosecutors." McNulty concomitantly registered "strong opposition" in DOJ to this idea, as it permits the judiciary to appoint executive branch officials. This apparent separation of powers concern, however, is not a serious one -- because the Administration can rather felicitously obviate the need for any interim appointments simply by promptly nominating highly-qualified lawyers.

Congress must keep scrutinizing why U.S. Attorneys are departing and, if the lawyers are indeed leaving for improper reasons, should institute action to address the wrongful politicization of the process. Several Committee members prefer this approach; however, they must join forces with other lawmakers first to clarify exactly why the U.S. Attorneys are leaving and then, if the reasons are indeed questionable, to initiate corrective measures.


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

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