It's Up to Gonzales Now

Generally speaking, Washington wants to supervise more than U.S. attorneys care to allow. For example, the Justice Department has long required that prosecutions under RICO, the federal racketeering statute, not be initiated without departmental approval from Washington. This is to ensure that the development of RICO law is uniform nationwide. But the authority is somewhat anomalous, because the underlying charges that form the basis of a RICO case can be brought by a prosecutor without Washington's say-so. During my time as an assistant U.S. attorney, we tended to resent Washington's role in RICO cases and often submitted them for approval only at the last minute.

Furthermore, both Justice and the U.S. attorney's offices adhere to an uneasy understanding about the kinds of objections Washington can raise. Justice is within its rights, for example, in saying, "We don't think the incidents alleged in the indictment amount to a pattern of racketeering under the law," but not, "We think the defendant's church activities should militate against prosecution."

This is not to say that Washington does not succeed in changing the way things are done in the U.S. attorney's offices. Under the first President Bush, a broad initiative was begun to crush gangs and drug lords through the Organized Crime Drug Enforcement Task Force (OCDETF), which was supposed to operate in every U.S. attorney's office. The war on guns and drugs had always been seen as the responsibility of local prosecutors, and the news that the federal courts were now going to be the site of street-crime prosecutions was not greeted warmly by all federal prosecutors and federal judges.

In Chicago, the idea of dedicating a significant portion of the U.S. attorney's resources to this pursuit threatened more traditional missions such as public corruption cases, and I recall months of delicate negotiations between U.S. Attorney Dan K. Webb and the department to preserve national and local prerogatives. In the end, Webb worked out an agreement whereby a percentage of many assistants' work time, as opposed to a fixed number of assistants, would be dedicated to OCDETF matters.

In this back and forth between Washington and the field offices, public corruption cases -- generally meaning bribery of local or federal officials -- have always been a special preserve. That is because most state and county prosecutors are elected, while U.S. attorneys are appointed by the president (and approved by the Senate). As such, U.S. attorneys are seen as less vulnerable to local political influences to pursue or not pursue corruption inquiries. That is why the charge that the Bush Justice Department dismissed one or more of the recently fired U.S. attorneys because of the way they handled corruption cases touched a nerve.

For decades, under Republicans and Democrats, the Justice Department has fully supported corruption investigations without regard to their political consequences, as it did recently in the case of lobbyist Jack Abramoff. The direst fear raised by the prosecutor firings is that the Bush administration, recognizing the political damage done by the Abramoff case and the other prosecutions it spawned, decided to shoot across the bows of the U.S. attorneys to prevent similarly harmful prosecutions from taking place before the 2008 elections.

Whether or not that is true, the firings surely represent a newly intrusive attitude in which the administration seems convinced of its right to demand true-believer adherence to policy, as opposed to granting U.S. attorneys their traditional discretion to handle individual cases with an eye to all the attendant facts and circumstances.

We will find out this week how much the attorney general will be able to allay the fears raised by the firings. Whether or not he succeeds in saving his job, he will do the federal law enforcement system and the nation a favor if he endorses the traditional division of responsibility, reserving policy for Washington and case-by-case prosecutorial decision-making for the prosecutors.

scott@scottturow.com

Scott Turow was an assistant

U.S. attorney in Chicago for eight years. His most recent novel is "Limitations."