The Reno Precedent

Thursday, March 15, 2007

THE LATEST they-do-it-too excuse for the undeniably botched and increasingly suspicious firings of U.S. attorneys involves the 1993 episode in which President Clinton's new attorney general, Janet Reno, unceremoniously dismissed the first Bush administration's holdover U.S. attorneys. By comparison with the Reno massacre, we are told, the Bush administration's canning of eight U.S. attorneys was positively restrained; if you suspect political motives in the current controversy, so the argument goes, consider that when he was ousted by Reno, the U.S. attorney in the District, Jay Stephens, was just weeks away from deciding whether to indict House Ways and Means Chairman Daniel Rostenkowski (D-Ill.). Inconveniently for these conspiracy theorists, Mr. Rostenkowski was in fact indicted and convicted -- and, yes, he ultimately was pardoned by President Clinton.

The Reno precedent is a red herring, not a useful comparison. The summary way she announced the move was, indeed, unusual if not unprecedented. But a turnover in the top prosecutorial jobs with a new administration taking power -- especially one of a different party -- was not. As we wrote at the time, "These are political appointees who owed their jobs to the last administration and have expected to be replaced ever since last November's election. It would likely have happened earlier had the Clinton administration not made such an adventure out of the appointment of an attorney general." And so President George W. Bush, properly and unsurprisingly, replaced all but a few U.S. attorneys during his first year in office. Indeed, while it would undoubtedly have been disruptive and unwise, it would not have been illegal or unethical for the president to follow the suggestion of his then-White House counsel, Harriet E. Miers, to replace all the prosecutors again in his second term.

The question, then, is what to make of the president's move to fire several of the prosecutors. This recent group firing, in the midst of a presidential term, is unprecedented; Mr. Bush was simply incorrect yesterday when he described it as "a customary practice by presidents." But unprecedented doesn't equal wrong: U.S. attorneys serve at the pleasure of the president, and he is entitled to have in place prosecutors committed to his law enforcement priorities. (The potential for misusing the newly bestowed interim appointment authority to evade Senate confirmation is a separate, and troubling, concern.)

Internal administration e-mails released Tuesday offer some indications of those sorts of policy-related issues, from references to "woodshedding" the U.S. attorney in San Diego, Carol C. Lam, over immigration cases to complaints about whether Paul K. Charlton in Arizona and Daniel G. Bogden in Nevada were balking at obscenity prosecutions. But there are also ample grounds for suspicion about improper motives, including the involvement of White House political aides and telephone calls from lawmakers to prosecutors about politically sensitive cases. The dishonest conduct of the Justice Department has only served to deepen suspicions, to underscore the importance of figuring out exactly what transpired here and to distinguish this situation from the Reno precedent.

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