By Carrie Johnson
Washington Post Staff Writer
Friday, March 13, 2009
One of the better spoils of winning the presidency is the power to appoint nearly 100 top prosecutors across the country. But filling the plum jobs has become a test of competing priorities for President Obama. While he pledged bipartisanship during his campaign, replacing the cadre of mostly conservative U.S. attorneys would signal a new direction.
When President Bill Clinton took office, he fired all U.S. attorneys at once, provoking intense criticism in the conservative legal community and among career lawyers at the Justice Department.
President George W. Bush took a different approach, slowly releasing several of the prosecutors but keeping in place Mary Jo White, the U.S. attorney for the Southern District of New York, while she pursued terrorism cases and a politically sensitive investigation of Clinton's pardon of fugitive financier Marc Rich.
Obama has not made clear how he will build his own corps of prosecutors, a group that shapes an administration's approach to law enforcement and is critical to its smooth operation. U.S. attorneys' offices handled more than 100,000 criminal cases and recovered $1.3 billion in forfeited cash and property in the past fiscal year, according to a prosecutors' trade group.
The White House is under pressure from several fronts, both to appoint new prosecutors favored by members of Congress and, in other cases, to keep some U.S. attorneys from the Bush administration.
Several Bush holdovers, who were told before the inauguration that they could stay "for the time being," are making it known that they want to remain, citing the high-profile investigations they are pursuing. About 40 of the Bush appointees left of their own accord before the election, but dozens have stayed on.
Mary Beth Buchanan, the U.S. attorney for the Western District of Pennsylvania, who oversaw a recent FBI raid of fundraisers close to Rep. John P. Murtha (D-Pa.), told local reporters after the November election that she did not plan to voluntarily resign.
Buchanan had held top political jobs in the Bush Justice Department, where she directed the office of violence against women and led the unit that oversees the nation's U.S. attorneys. She is a member of the conservative Federalist Society legal group and cultivated close connections to former senator Rick Santorum (R-Pa.), an advocate for antiabortion and Christian groups.
"It doesn't serve justice for all the U.S. attorneys to submit their resignations at one time," Buchanan told the Pittsburgh Post-Gazette last year. "I am open to continuing further service to the United States."
In North Dakota, residents are pursuing a petition drive to keep U.S. Attorney Drew Wrigley, a public relations campaign that was chronicled on the front page of the state's main newspaper. Wrigley's supporters say he needs to be in place to pursue a death sentence against the man convicted nearly three years ago of murdering University of North Dakota student Dru Sjodin in 2003. And in New Orleans, U.S. Attorney Jim Letten has won the endorsement of the state's Democratic senator, Mary Landrieu, who praised him for picking up a heavy caseload after Hurricane Katrina.
Justice Department and White House officials declined to comment on U.S. attorney picks this week.
The appointments this year are, perhaps more than before, weighted with symbolism. The department's inspector general concluded in a report that the Bush administration's hiring of prosecutors and immigration judges was tainted by political considerations, and prosecutor Nora R. Dannehy is conducting a criminal investigation into whether several prosecutors were wrongly fired in 2006 because of politics.
Filling jobs in a new administration has always involved politics, but the U.S. attorney posts have been more of a hybrid, where professional background and experience were also considered essential. Still, lawmakers' views often weigh heavily in decisions about who should get the jobs, which require Senate confirmation. The late senator Strom Thurmond (R-S.C.) once famously chose his 28-year-old son for the post.
Senate Majority Leader Harry M. Reid (D-Nev.) said this week that he had urged the administration to name former U.S. attorney Daniel G. Bogden to a post he held until he was among those fired by the Bush administration. Bogden, a registered independent who spent 20 years as a line prosecutor, should not have been dismissed, Reid said.
Sen. Charles E. Schumer (D-N.Y.) has recommended Preet Bharara, his top legal adviser, to be the U.S. attorney for the Southern District of New York, an office that traditionally handles some of the nation's most important business fraud and terrorism cases. Bharara spent years in the office as a prosecutor before moving to Washington. He has close working relationships with prosecutors who handle securities fraud and national security, one of the reasons Schumer recommended him.
Obama administration officials have confirmed they will bless a proposal by Senate Majority Whip Richard J. Durbin (D-Ill.) that Patrick J. Fitzgerald, a political independent, remain U.S. attorney for the Northern District of Illinois. Fitzgerald is spearheading the criminal investigation of former Illinois governor Rod Blagojevich (D), a public corruption case that spurred government investigators to interview Obama, White House Chief of Staff Rahm Emanuel and adviser Valerie Jarrett in December.
The process in the District is proceeding more slowly, as Del. Eleanor Holmes Norton (D) prepares to have a committee evaluate recommendations for the city's top prosecutor job. Former federal prosecutor DeMaurice Smith, a former aide to Attorney General Eric H. Holder Jr., and D.C. Superior Court Associate Judge Thomas J. Motley are leading candidates, executive branch and congressional sources said.
Advisers to Obama say they have learned from past mistakes, including Clinton's decision to require all U.S. attorneys to submit their resignations.
Critics said that move threw law enforcement efforts into disarray. And Richard Cullen, who was a U.S. attorney for the Eastern District of Virginia under President George H.W. Bush, said that crossed signals during the Clinton transition left some prosecutors on the street unexpectedly.
"We just got a call one day: Resign right away," said Cullen, now chairman of the law firm McGuire Woods. "That was at odds with what the Clinton transition people told the Bush transition people. Some people didn't have jobs to go back to, and had families to feed."
Steve Cook of the National Association of Assistant U.S. Attorneys recently sent a letter to the Obama team urging it to consider continuity rather than firing the remaining Bush appointees as a matter of "political expediency."
"The preferable approach we believe is to permit incumbent U.S. Attorneys to remain in place until the new U.S. Attorney has been nominated and confirmed," wrote Cook, a 22-year federal prosecutor in Tennessee.
Lawyers who have been involved in previous U.S. attorney selections say the pressure to appoint well-connected insiders always has been strong.
"I would caution the Obama administration against making wholesale removals of U.S. attorneys," said Mark Paoletta, who served in George H.W. Bush's Office of Presidential Personnel and in the White House counsel's office. Such a move, he said, "would unfortunately give the appearance of politicizing these law enforcement positions." But Melanie Sloan, a former prosecutor who serves as executive director of the Citizens for Responsibility and Ethics in Washington, said the issue is somewhat fraught for the new team at Justice.
"They can't want all these people," she said. "These are all very, very conservative Republicans. I think it's going to be tricky, because if they do nine of them at once, the Republicans are going to scream exactly like the Democrats did."
Join Carrie Johnson today to discuss this article. She will be chatting about the Obama administration's approach to hiring U.S. attorneys from 10:30 to 10:45 a.m. in the article's comments thread at washingtonpost.com.