BURDEN OF PROOF
It's Up to Gonzales Now
Is political loyalty more important to the Bush Justice Department than prosecutorial independence?
To those of us who have been federal prosecutors, that's the critical question facing Attorney General Alberto R. Gonzales as he testifies before Congress this week on the firing of eight U.S. attorneys. We know what's at stake: a balance of power between the Justice Department and those who handle day-to-day prosecutions that is the bedrock of federal law enforcement.
This balance of power was evident to me even when I worked as a law clerk in the U.S. attorney's office in Chicago in the summer of 1977, between my second and third years of law school. I can still recall my first research assignment.
Following the example of his two predecessors, then-U.S. Attorney Samuel K. Skinner had made pioneering use of the federal mail-fraud statute to break through the endemic corruption of Chicago's Democratic machine. But with Jimmy Carter's election the prior fall, Skinner -- an appointee of President Gerald R. Ford -- was planning to hand in his resignation. This had raised fears in the office that the local Democratic pols would use their pull in Washington to manipulate the appointment process and install a successor who would turn a blind eye to all the fixing and fraud going on. Some of the lawyers wanted me to find out if there was any legal basis for Skinner to hold on to his job.
I had the answer by the end of the day: No. The U.S. attorney, like most other members of the executive branch, serves at the pleasure of the president. Assuming that Carter wanted to make a change -- and the U.S. attorneys always left office when the White House fell into the hands of the opposing party -- Skinner would return to the private sector.
As it happened, things worked out well for everyone. Skinner eventually went on to become secretary of transportation and then briefly chief of staff to President George H.W. Bush, while Thomas P. Sullivan, the U.S. attorney appointed to succeed him, proved to be another independent and fearless prosecutor. Among his many achievements was initiating Operation Greylord, which unearthed a pattern of corruption in the state courts in Chicago.
Sullivan's tenure cemented a tradition of political independence in the day-to-day conduct of the U.S. attorney's office in Chicago, a let-the-chips-fall-where-they-may attitude in the pursuit of evidence and investigations that persists under current U.S. attorney Patrick J. Fitzgerald, who, like Skinner and Sullivan, has indicted and investigated both Republicans and Democrats.
Has that tradition been violated? In defending the administration in the current firing scandal, its supporters have relied on the established law that allows the president to place loyalists in policymaking positions in the Justice Department and in U.S. attorney's offices nationwide, where they can attend to the department's priorities. But that principle is only half of the legal yin and yang that governs the conduct of U.S. attorneys.
The U.S. attorney, in all 93 federal districts, has been a figure of unique autonomy, whose right to pursue individual cases as she or he sees fit, within the broad framework of Washington's policy directives, has been largely unquestioned for generations and is rooted in the office's local responsibilities.
The prosecution of criminal cases is by its nature a local event. The Constitution requires that criminal trials be held in the state where the crime occurred and that offenses be investigated locally through a grand jury, advised by the U.S. attorney. The Federal Rules of Criminal Procedure, established by the Supreme Court and Congress, also provide that no indictment may be returned without the signature of "an attorney for the government." In theory, the attorney general could attest to the thousands of indictments returned every year, but the sheer volume means that in practice it is the U.S. attorney in each district who reviews and signs off on each prosecution. The U.S. attorney also has the power to ask the court to dismiss any indictment he decides not to pursue.
Because U.S. attorneys have such broad legal authority, the Justice Department -- under both political parties -- has recognized that they cannot be micromanaged in their pursuit of individual cases. Notwithstanding the Bush administration's protests about its vested right to dismiss any U.S. attorney, the Justice Department's own mission statement for the office says: "Each United States Attorney is the chief federal law enforcement officer of the United States within his or her particular jurisdiction. . . . Each United States Attorney exercises wide discretion in the use of his/her resources to further the priorities of the local jurisdictions and needs of their communities."
The federal criminal justice system has thus evolved with shared power: Developing national law enforcement policy is the task of the Justice Department, and the responsibility for applying that policy and following individual cases and investigations wherever the evidence leads falls to the U.S. attorney for each federal district. The distinction between policy and case management is frequently blurry and has often led to sparks between the department and the U.S. attorneys, no matter which party is in power.