Live and Learn: Depoliticizing the Interim Appointments of U.s. Attorneys

• Publication year: 2007
• Citation: Vol. 31 No. 02

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 31, No. 2WINTER 2008

LIVE AND LEARN: DEPOLITICIZING THE INTERIM APPOINTMENTS OF U.S. ATTORNEYS

Laurie L. Levensori(fn*)

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.(fn1)

I. Introduction

U.S. Attorneys play a special role in our federal criminal justice system. As the representatives of the federal government, they have the responsibility of enforcing federal laws in their respective districts.(fn2) Although U.S. Attorneys serve "at the pleasure of the President,"(fn3) the goal is to have a fair and impartial prosecutor administering the laws.(fn4) The recent firing of eight U.S. Attorneys has called into question attempts to politicize the role of this vital Office. By attempting to give the Attorney General the power to make indefinite interim appointments, the Justice Department has also compromised the independence of U.S. Attorneys and their role as effective and fair federal prosecutors.

In 2006, something happened that jeopardized the role of U.S. Attorneys like never before.(fn5) Alberto Gonzales, then Attorney General of the United States, authorized the midterm firings of eight experienced and well-regarded U.S. Attorneys across the country.(fn6) With little or no notice, these U.S. Attorneys were unceremoniously asked to leave their posts. Interim U.S. Attorneys were appointed who generally lacked the prosecutorial experience or credentials of the seasoned U.S. Attorneys they replaced.(fn7) Shortly thereafter, Congress began investigating allegations of political interference in the sacking of the U.S. Attorneys.(fn8)

Currently, the investigation continues in order to discover who called for the firing of these individuals and why.(fn9) Were they fired because they failed to indict members of the opposing political party?(fn10) Were they fired because they had the audacity to investigate and indict members of the Administration's political party?(fn11) Who decided to put these individuals on the hit list? What was the overall goal of the firings-to give party favorites an opportunity to pad their resumes with the position of U.S. Attorney before the Administration's term came to an end,(fn12) or to fill a true need for new leadership in the U.S. Attorneys' Offices?

The answers to these key questions are still unknown. Congress remains frustrated by what it perceives to be a lack of candor by the former Attorney General(fn13) and his high-level deputies.(fn14) Meanwhile, White House officials have refused to testify, citing executive privilege.(fn15) Still, one thing is known: the method in place at the time of the firings for appointing interim U.S. Attorneys exacerbated the problem.(fn16) Shortly before the firings, Congress reauthorized the Patriot Act,(fn17) which included a provision that shifted the power to make long-term interim appointments from the Chief Judge of a district to the Attorney General.(fn18) This change, which went unnoticed at the time,(fn19) gave the Administration the ability to bypass the Senate confirmation process and to put in place its own political choices for interim U.S. Attorneys. Although the Administration claimed that the change was needed for national security purposes,(fn20) its effect was to add to the increasing politicization of U.S. Attorneys' Offices.(fn21) Both Republicans and Democrats quickly agreed that the new law was a bad choice and sought to amend it.(fn22)

http://www.nctimes.com/articles/2007/03/06/news/top_stories/l_01_443_5_07.txt. Some claim that Lam's dismissal was brought on by her failure to prosecute smugglers of illegal immigrants. See id.

General Alberto Gonzales were 'intentionally false, misleading or inappropriate.'" Philip Shenon, U.S. Watchdog Is Investigating Gonzales, INT'L HERALD Trib., Sept. 1, 2007, at 2. The investigation continues today, and Gonzales has retained private counsel to assist him with the government's probe. See Marisa McQuilken, Gonzales' Man in White, LEGAL TIMES, Oct. 15, 2007, at 3.

It was not by accident that the power to appoint interim U.S. Attorneys was shifted from judges to U.S. Department of Justice (DOJ) officials. In 2001, a trial attorney of the DOJ, Ross E. Wiener, had proposed the change. In his article, Inter-Branch Appointments After the Independent Counsel: Court Appointment of United States Attorneys?(fn23) Wiener proposed that the power to appoint interim U.S. Attorneys shift from the Judicial to the Executive Branch.(fn24) To his credit, he did suggest ways in which Congress could have some oversight in the appointment process.(fn25) None of these, however, were put in place when the Patriot Act was passed.

Following the U.S. Attorney purge of 2006-2007, it is time to reassess the approach used to appoint interim U.S. Attorneys. Recent events have taught us how quickly U.S. Attorneys can become political pawns. Indeed, this scandal has jeopardized the credibility of federal prosecutors, disillusioned career prosecutors in those positions, and called into question the separation between professionalism and politics in the enforcement of our federal laws.(fn26) To restore confidence in U.S. Attorneys' Offices, a reexamination of the interim appointment process is critical so that the mistakes of 2006 are not repeated.

Part II of this Article discusses the important role of U.S. Attorneys and why their function is threatened by a growing politicization of the U.S. Attorney's Office. Part III explains how U.S. Attorneys have traditionally been appointed, and why the shift from the traditional approach to one that affords more power to the Executive Branch was unwarranted and unwise. Finally, Part IV proposes an approach that will better ensure that only qualified individuals serve in the position of U.S. Attorney and will stem the tide toward politicization of the office.

The last two years have been a dark period for federal prosecutors. The Attorney General was accused of being a liar, an incompetent leader, or both;(fn27) the accusations were ultimately enough to force his resignation.(fn28) Dedicated public servants have found their names dragged through the mud as DOJ officials have tried to justify their firings.(fn29) Career prosecutors have been demoralized because the scandal has cast a shadow on the integrity and professionalism of federal prosecutors generally.(fn30) Most importantly, the public has had to wonder whether replacement U.S. Attorneys are bound to serve the public's interests or merely their own. It is bad enough to live through this period; it is even worse if we do not learn from it. The appointment of interim U.S. Attorneys should not be a political game. Rather, it should be a process that recognizes that the first and foremost responsibility for prosecutors is "to do justice."(fn31)

II. The Role of U.S. Attorneys

U.S. Attorneys, through their power to "prosecute for all offenses against the United States,"(fn32) are the chief law enforcement officials of the federal districts. They have the discretion to decide which cases to pursue and how to allocate resources in order to best serve the priorities of their respective jurisdictions.(fn33) Every year, U.S. Attorneys file thousands of cases.(fn34) Some of the more notable cases in the last decade include terrorism cases:(fn35) the prosecutions of Timothy McVeigh,(fn36) Martha Stewart,(fn37) Scooter Libby(fn38) as well as other celebrity cases.(fn39) By both tradition and function, U.S. Attorneys serve as DOJ employees but maintain the independence necessary to serve the needs of their districts.(fn40)

Although U.S. Attorneys' Offices are financially supported by the DOJ and rely on the DOJ for coordination and direction, the Offices are separate from the DOJ.(fn41) Historically, U.S. Attorneys have enjoyed at least some independence with respect to job performance. In fact, the independence of the office is rooted in its very creation. Both the Office of the United States Attorney and the position of United States Attorney General were created by the Judiciary Act of 1789.(fn42) The 1789 Act provided for the appointment in each district of a meet person learned in the law to act as attorney for the United States ... whose duty it shall be to prosecute in each district all delinquents for crimes and offenses, recognizable under the authority of the United States, and all civil actions in which the United States shall be concerned.(fn43)

At the outset, the Attorney General was "more of a general attorney than an officer statutorily empowered to command other governmental attorneys."(fn44) The Attorney General did not have power to appoint U.S. Attorneys and had no control over them.(fn45) It was not until August of 1861 that Congress passed an act giving the Attorney General authority over U.S. Attorneys by delegating powers of "general superintendence and direction duties" to the Attorney General.(fn46) Although the "superintendence" powers were not specified at that time, the Attorney General later received the power to supervise criminal and civil proceedings in any district through the Department of Justice Act of...