The Right Way to Manage U.S. Attorneys

By Abbe David Lowell
Saturday, March 10, 2007

The recent firings of eight U.S. attorneys and the revelations that politics may have played a role in the dismissals have focused a spotlight on this important and often ignored federal office. On all levels of government, prosecutors wield enormous power. Indeed, more than 60 years ago, Attorney General Robert Jackson, who went on to become a Supreme Court justice, noted that a U.S. attorney "has more control over life, liberty, and reputation than any other person in America."

The dismissals appear to have been politically motivated and carried out heavy-handedly; initially, doublespeak was used to explain what was done and why. The irony is that a president and his or her attorney general should seek a centrally coordinated and cohesive federal prosecution force. Without some attempt to organize the 93 federal judicial districts, each of which has its own U.S. attorney, inefficiency can be common across offices. Prosecutors might lack consistent priorities and vary on treatment of similar cases. With so much potential criminal conduct and too few resources in the form of investigators and prosecutors, an administration's law enforcement efforts can be diluted if goals are not coordinated.

The problem in recent years has been not that Washington is too involved in supervising these offices and their personnel but that it has done too little. Some U.S. attorneys will decide, say, to pursue drug and immigration cases while others pursue business or consumer fraud and still others seek public corruption cases (and the accompanying headlines). Some might adopt one set of policies for plea agreements and what sentences to seek for those cooperating with law enforcement, while others have different rules and practices. Practicing lawyers acknowledge that even though there is only one set of federal criminal statutes, one set of federal rules of criminal procedure and one set of sentencing guidelines, procedures often seem to vary depending on which U.S. attorney's office is involved.

The Bush administration's folly is not that it attempted to choose, supervise and coordinate outstanding attorneys who would adhere to the same priorities and practices but that near the end of its tenure it tried to regulate specific offices in specific investigations. There can be no disagreement about this: Once a U.S. attorney has been appointed, that person's particular investigations and cases must be totally off-limits to questions from the White House or anyone in Congress. There is simply too much room for any such inquiry to be (or to be perceived as) a request that a case be brought, or not brought, to allow any exceptions.

History is replete with "innocent" inquiries from members of Congress to the Justice Department that have sparked controversy and criticism, such as Rep. Joshua Eilberg's inquiry about a Philadelphia corruption case in 1978 and House Speaker Jim Wright's inquiries about Texas savings and loan cases in 1988. There have been too many incidents for that lesson not to have been learned.

Another irony is that U.S. attorneys are usually appointed on the recommendation of the senator or senators from the president's party as one of a new administration's key political plums. So from the outset, politics plays a role in who becomes a U.S. attorney. But preelection political interference, such as that by Sen. Pete Domenici and Rep. Heather Wilson, both New Mexico Republicans, who called their U.S. attorney in October about a public corruption case on which they hoped to see action, has caused some of the recent fury.

The recent blunders hold lessons for future administrations. First, the provision slipped into the extension of the USA Patriot Act last year, giving the president more authority to appoint interim U.S. attorneys without Senate approval, has to be revoked. Attorney General Alberto Gonzales just announced that he will support this. Confirmation hearings are one of the few ways in which this position is reviewed.

Second, the next president and attorney general should make an immediate priority of finding and selecting the best lawyer for each U.S. attorney position, even if it means seeking bipartisan, merit-based recommendations, as President Jimmy Carter and Attorney General Griffin B. Bell did, and forgoing political patronage for the favorite of a particular senator. In this, it is not only appropriate but essential that the president and attorney general find individuals who agree with the new administration's priorities, concepts of procedure (e.g., sentencing guidelines) and use of resources, as well as individuals who agree that the Justice Department has a vital role in supervising the 93 U.S. attorneys once they are confirmed.

Finally, once an attorney is chosen on the merits, screened at confirmation hearings and supervised on general priorities and principles, that U.S. attorney and the specific cases he or she works on must be immune to interference or the perception of interference by anyone in the White House or Congress. Any such inquiry, intentional or not, will always raise the specter of politics and favoritism -- two of the death knells to an independent judiciary.

The writer, a criminal and civil litigator in Washington, served as special assistant to the attorney general in the Carter administration.


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