The independence of federal prosecutors: a panel discussion at the Federalist Society 2007 National Lawyers Convention.

PANELISTS:

Bob Barr, President and CEO, Liberty Strategies, LLC, and former member of the U.S. House of Representatives, Georgia

Jamie Gorelick, WilmerHale, and former Deputy U.S. Attorney General

Andrew C. McCarthy, The Foundation for the Defense of Democracies

John C. Yoo, University of California, Berkeley, Boalt Hall School of Law

MODERATOR:

Merrick B. Garland, U.S. Court of Appeals, D.C. Circuit

GARLAND:

My name is Merrick Garland. I am a judge on the D.C. Circuit and I will be your moderator. Today we're going to discuss the independence of federal prosecutors, and we're going to do this in three dimensions: the relationship between the White House and the Department of Justice; the relationship between the Department of Justice and U.S. Attorneys' offices; and the relationship between each of those and Congress. It should be noted that the panelists or myself often refer to the Department of Justice at the exclusion of the U.S. Attorneys' offices because of the independence that is at issue in this discussion, despite the fact that the U.S. Attorneys are part of the Department of Justice. We will begin with a panel discussion and save the last thirty minutes or so for questions from the audience.

We have an extremely knowledgeable and interesting panel for you. Professor John Yoo is a professor of law at the University of California at Berkeley. At the time of the 9/11 attacks, he was the Deputy Assistant Attorney General in the Office of Legal Counsel at the Department of Justice. Professor Yoo previously served as General Counsel for the Senate Judiciary Committee under Chairman Orrin Hatch, and he served as a law clerk for my colleague Judge Laurence Silberman of the D.C. Circuit and Justice Clarence Thomas of the Supreme Court.

Ms. Jamie Gorelick is a partner at the Washington law firm WilmerHale. She was a member of the National Commission on Terrorist Attacks on the United States. From 1997 to 2000, she was Vice Chair of Fannie Mae. Ms. Gorelick was Deputy Attorney General in the Clinton Administration and was also General Counsel of the Department of Defense.

Mr. Andrew McCarthy directs the Center for Law and Counterterrorism at the Foundation for the Defense of Democracies. For eighteen years, Andrew served as an Assistant U.S. Attorney in the Southern District of New York, where he led the prosecution of Sheikh Omar Abdel Rahman and eleven others in connection with the 1993 World Trade Center bombing. Following the 9/11 attacks, Mr. McCarthy supervised the office's command post near Ground Zero in New York City.

Bob Barr is the President and CEO of Liberty Strategies, LLC, a public policy consulting firm. Bob also occupies the 2lst Century Liberties Chair for Freedom and Privacy at the American Conservative Union, and he serves on the Libertarian Party's national committee. Bob served as the U.S. Attorney in the Northern District of Georgia from 1986 to 1990. From 1995 to 2003, Bob was a member of the U.S. House of Representatives, where he represented the Seventh District of Georgia. Bob was at that time a senior member of the House Judiciary Committee and Vice Chair of the Government Reform Committee.

This panel on the independence of federal prosecutors is not intended to be a referendum on any particular President, any particular Attorney General, or any particular U.S. Attorney. The issues that we're going to discuss are ones that have been discussed for many years and we expect will be discussed for many more. For that reason, the questions I'm going to ask are either going to be hypothetical or historical, and I'd be grateful if, when taking questions from the audience, the questioners try to put their questions in that form.

So, here is my first hypothetical question, which I hope that most of the members of the panel are hearing for the first time.

Suppose that the President appoints his friend, a former judge and adviser from his home state, as the Attorney General.

Suppose that a public interest group then criticizes the Department of Justice as being "heavily politicized" and claims that the Attorney General has not "sorted out the distinction between being the President's lawyer and the people's lawyer."

Suppose at some time later, a member of Congress from the President's party calls the White House and the Department of Justice to request that a U.S. Attorney in his hometown be removed.

Suppose that the White House eventually tells the member of Congress that it will "expedite" the dismissal of that U.S. Attorney, tells the Department of Justice to do just that, and the Department of Justice then terminates the U.S. Attorney.

And suppose that the U.S. Attorney then calls a press conference and says, "A call from a Congressman clearly expedited my removal."

From that little bit of laughter before, I get the impression that you realize this is not a hypothetical. You're right. It's a real case. So I'm going to ask my questions using the real players' names. In this real case, which took place in 1977, did President Jimmy Carter do anything wrong when he called Attorney General, and former Judge, Griffin Bell and asked him to expedite the dismissal of Philadelphia U.S. Attorney David Marston at the request of Pennsylvania Representative Joshua Eilberg, who was at the time under investigation by Marston?

MCCARTHY:

We must first determine what "wrong" means. If the question is, did he do anything legally wrong, I think the answer to that is clearly no. The President can remove U.S. Attorneys or cause U.S. Attorneys to be removed for any reason or no reason. So, legally there shouldn't be an issue. I take the fact that the description did not suggest that there was an obstruction going on in connection with any particular case that was under litigation--that it was simply the removal of a U.S. Attorney.

Now, "wrong" is not just a legal concept. It's got a lot of other elements to it, and part of it is political. And I think the circumstances that Judge Garland described might be an incredibly stupid way to go about replacing U.S. Attorneys. I would think that an Administration that did that would have to take a political hit for it, which is the way it's supposed to work in our system. The ultimate check is supposed to be the public at the ballot box. So I don't want to be misunderstood as saying that I didn't hear anything that was wrong, but I didn't hear anything that was either a crime or something that I think is legally redressable.

BARR:

I don't think that relying on just the ballot box for the impartial and appropriate administration of justice is the way most of us as Federalist attorneys would like to see the system operate. Some things in our political system, in a very general sense, certainly are appropriately left to the ballot box, but the swift and impartial administration of justice is not one of those factors of our society that ought to be left just to the ballot box.

This is an area that certainly, either hypothetically or in real life, Congress has an appropriate role, a responsibility to inquire as to whether or not there were improper motivations with regard to the request from the White House. Obstruction of justice is a very serious offense. It is one that falls within the appropriate oversight role of Congress, in addition to federal prosecutors. The answer to the question ultimately of whether or not there is something wrong here clearly is yes. As Andy said, whether it is in fact legally wrong, that it is criminal or possibly criminal, ought to be something that all of us, if we were a part of or around at the time that fact pattern occurred, should demand a full and sifting inquiry by Congress and by the Department of Justice.

One would have hoped that the pressure from the White House, as illustrated in the hypothetical, would have been resisted very quickly, very thoroughly, and very consistently by the Attorney General.

GARLAND:

So, you raise two issues, is there an obstruction problem and is there a political problem. Now, before I get to the other two members of the panel, let me add two other things. There was, in fact, the investigation that Bob's referring to. The Office of Professional Responsibility ("OPR") did investigate and determined that President Carter did not know that Representative Eilberg was under investigation by Marston at the time. Does that make any difference to you?

BARR:

That would certainly be relevant to the inquiry. One, I think, would want to go a little bit further than simply leaving it up to OPR to investigate its own. We don't know from the hypothetical whether Congress, or the Judiciary Committee in either house, looked into this as part of its oversight responsibility. We don't know whether or not, in fact, there was any other follow-up with regard to what seems to be a cursory conclusion that the President did not know.

Certainly, to me, knowing that particular White House, knowing the attention to detail by that particular President, the OPR's conclusion would strike me as one that certainly would require a little further investigation.

GARLAND:

Andy, on the political appearances question, does it matter to you that U.S. Attorney Marston was an appointee of President Nixon and that this all took place during the very first year of the new Administration?

MCCARTHY:

No. I don't think that that matters. In the sense that this is, as far as I'm concerned, principally a political problem, it may make a difference. Every fact that goes to the calculus of whether it was good judgment or bad judgment factors in. But in terms of the strict legal question about whether there's a legal problem here or not, I don't think it does. And I hear what Bob is saying about OPR and the Department investigating its own, but there are competing evils here. This is one of these situations where, no matter which way you come out or which way you structure an investigation, there's going to be something undesirable in the...

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