The U.S. Attorney purge
    and the quest for tyrannical power

Should the President be able to order the indictment of his political opponents? Now he can.

It’s important not to romanticize U.S. Attorney “independence.” U.S.A.’s are and always have always been patronage appointees of the Senators of the President’s party from their home states, and frequently harbor political ambitions that may lead them to spare the guilty to accumulate favors or (like Rudy Giuliani) indict the innocent to make headlines.

But historically they have been, once appointed, isolated from short-term political pressure. The Senators who chose them couldn’t fire them, and the President who nominally appointed them couldn’t replace them with his own creatures because the Senate would refuse to confirm anyone who didn’t get a “green slip” from the relevant Senator or Senators. That was, and is, a practically important protection against tyranny.

With career prosecutors at Main Justice and semi-independent U.S. Attorneys, a President has, until now, lacked the capacity to order a political opponent indicted or the case against a supporter or contributor quashed. The Bush purge changes that. Any actual conservative would be appalled; the silence from the Right is, therefore, rather deafening.

Those are the real stakes in the Bush Administration’s purge of United States Attorneys. And that’s the context in which we ought to judge the sequence of events, and of explanations.

The White House has now backed off its claim that the U.S. Attorney purge was about “performance.” Given that some of the victims are about to testify, and given their stellar performance appraisals, that position couldn’t be held any longer.

More importantly, it has given up the pretense that the decisions were made in the Justice Department. The firings were “approved by the White House” based in part on complaints from Congressional Republicans. (An earlier report quotes an administration source as saying that the impetus for the firings came from outside DoJ.)

The new cover story is that the purge victims weren’t being tough enough on immigrants. As Kevin Drum says, this story doesn’t deserve credence, especially in light of the previous and inconsistent story. Fortunately, I doubt that the Democrats are in a credulous mood.

Dahlia Lithwick offers a bunch of theories to explain the purge, without ever getting to what seems to me the obvious one:

Carol Lam had nailed one important Congressional Republican and was in the process of indicting the #3 brought into the CIA by Porter Goss as part of a truly ugly scandal that might involve many more Congressional Republicans. Jack Abramoff, who might be able to bring down dozens of GOPers on the Hill and several in the White House, including Karl Rove, is still “cooperating.” It was essential to send a clear message to U.S. Attorneys across the country: “Hands off our guys.”

Firing Lam (and reportedly two others who were running GOP corruption investigations) conveyed that message clearly. Firing Iglesias for not jumping to indict Democrats when a couple of Capitol Hill Republicans said “frog” conveyed the converse message. In sum, U.S. Attorneys are no longer to be semi-independent guardians of prosecutorial integrity, they are to be Bush Administration appointees, expected to be just as partisan (and, when necessary, corrupt) as all other Bush Administration appointees. (The Arkansas switch, as Lithwick notes following Adam Cohen of the New York Times, was just a way to put a Republican oppo research guy in a position to harass Hillary Clinton.)

Lithwick follows a generally sound maxim: never attribute to bad motives what can be explained by incompetence. But in this case I think she’s missed the obvious explanation for an egregious set of facts.

Update The mass media have been pretty quiet on this one, leaving Josh Marshall and his TPM crew to do most of the heavy lifting. But now even the editors of the New York Times seem to have noticed a strong smell of fish.

Second update

A friend learned in the law doesn’t fully share my concern about the institutional power shift represented by the purge of U.S. Attorneys and their replacement by Presidential appointees who need never pass through confirmation hearings in the Senate:

My tentative thinking has been that U.S. Attorney is a political appointment subject to political removal, though there may of course be political checks on that removal, in the form of criticism.

Yes, a U.S. Attorney has always been a political appointee, but not in practice the political appointee of the President. The President could remove him (though that has been done rarely; apparently only three times since 1981 other than at the beginning of an administration), but, until now, not in practice replace him. And the Senators who have the practical power of appointment have not had the power of removal.

When I worked at DoJ, the late Daniel Patrick Moynihan (this was in 1979, when he was still considered a politician, rather than an oracle or a saint) wanted to install as U.S. Attorney for the Western District of New York a lawyer thought, by some, unduly friendly to the Mafia family then powerful in Buffalo. I was one of the conduits by which those concerns were filtered up through the Department. At the end of the day, the Senator was told that his nominee was not acceptable, and that he might choose another.

Query: To what extent has this curious piece of quasi-Constitutional practice found its way into the literature?

Another reader, whose partisan orientation I think you’ll be able to guess, reminds me of the White House talking points on this:

At least it’s not a novel offense; You’ll recall that Clinton did something of the sort when he first took office. Only he disguised it as a mass firing, merely failing to rehire the attorneys he really wanted to be rid of.

Near as I can tell, the only real difference is that Clinton entered office with a full slate of investigations already needing to be quashed, while Bush took a while to accumulate some. But accumulate them he did.

Clinton (like Bush) replaced all the U.S. Attorneys at the beginning of his term, rather than waiting for their terms to expire. But once the new appointees were in place (not, in practice, his choices, but those of the Democratic Senators from each state) he didn’t then fire them. And, had he done so, he couldn’t have replaced them; interim U.S. Attorneys were chosen by the judges of the district, and permanent replacements required Senate confirmation. That’s what changed in the Patriot Act revisions made by subterfuge last fall.

Now Bush has created a situation in which U.S. Attorneys, once appointed, are as much his creatures as regional EPA administrators. That’s a big change.

For those of us who do not venerate St. Bill, the constant repetition of “but Clinton did it” gets extremely boring. That’s especially true in this case, where it’s false.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: