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It's Up to Gonzales Now

By Scott Turow
Sunday, April 15, 2007

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.

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."

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