The U.s. Attorney Firings of 2006: Main Justice's Centralization Efforts in Historical Context

Publication year2007
CitationVol. 31 No. 02



The U.S. Attorney Firings of 2006: Main Justice's Centralization Efforts in Historical Context

James Eisenstein(fn*)

I. Introduction

The simultaneous firings of seven United States Attorneys on December 7, 2006, provided a fascinating glimpse into the Bush Administration's policies and methods of operation.(fn1) As more of the facts surrounding the firings emerged through the revelation of a series of documents and testimony before congressional committees, media attention focused on the details of who was responsible for the firings, the reasons for them, and the role of the affair in the intense partisan conflict gripping Washington after the Democrats won control of both the House and Senate in November of 2006.

The media, the political establishment, and the federal criminal justice community's focus on the compelling story of the firings is hardly surprising. The details emerged over a period of many months through leaks, internal Department of Justice (DOJ) emails, press releases, interviews, and dramatic congressional testimony. The media's focus on the firings obscured their deeper significance with regard to the nature of the relations between the DOJ and its ninety-three United States Attorneys' Offices (USAOs). This Article addresses this omission by looking at the consequences of these events for the balance struck between central control by Main Justice in Washington and autonomy for U.S. Attorneys in the field. The Article argues that the firings represent a departure from the historic balance of control as part of a broader effort by the DOJ to centralize operations and recapture some of the control Main Justice had lost over the past three decades.(fn2)

Part II of this Article begins by describing the arguments for central control by Main Justice and for field autonomy for USAOs as an aspect of a fundamental clash of values in American politics between the necessity for a strong central government and the value of local autonomy. Part III examines both the shared and conflicting attitudes toward the proper balance between central control and field autonomy that existed in the 1960s and early 1970s, the factors that determined where the balance was struck in a district, and the patterns that resulted. Part III concludes with a summary of the consensus that then existed on when U.S. Attorneys could be fired. Part IV provides an update of the patterns that characterized relations between U.S. Attorneys and Main Justice four decades ago by examining the factors that have since enhanced both field autonomy and headquarters control. Part V describes the "strategy of centralization" pursued by the George W. Bush Administration, made evident by the firings of U.S. Attorneys, as well as its effects on USAOs. The Article concludes in Part VI with some thoughts on the factors that will determine where, in the aftermath of the firings in 2006, the balance between field autonomy and central control will be struck.

II. Competing Perspectives on the Proper Balance Between U.S. Attorney Autonomy and Main Justice Control

The American political system embraces a number of valued principles which cannot be fully realized without creating conflict with other equally revered principles. Much of our political life involves a never-ending struggle over how to adjust the existing balance between such conflicting values. The conflict between the right to a fair trial and freedom of the press provides an important example. The firings of U.S. Attorneys in 2006 illustrate one of the most important, enduring, and difficult value clashes-the desire for an effective central government in Washington, D.C. versus the wish to preserve autonomy at the state and local level.

The problem of where to locate policy-making authority is particularly acute in the criminal justice system.(fn3) Federal criminal law poses an especially prickly and stubborn problem, as good arguments can be made both for central direction of policy from Main Justice and for autonomy for the nation's ninety-three USAOs.(fn4) The justifications for central control will be examined first, followed by the competing rationales for U.S. Attorney autonomy.(fn5)

A. The Case for Central Control of Federal Criminal Justice Prosecution

The principal justification for central control of the USAOs from Washington is that the federal government has an obligation to pursue the same broad law enforcement goals everywhere in the nation. If different U.S. Attorneys emphasized the prosecution of different crimes, it would compromise the principle of equal justice and produce a hodgepodge of enforcement patterns. Similarly, if the ninety-three USAOs adopted starkly different prosecution policies toward, for example, bank robberies, drug possession, or gun crimes, people who committed the same federal crime in different districts would have very different outcomes, further undermining the principle of equal justice. If violators of federal criminal law are to be equally subject to prosecution and receive comparable sentences regardless of where they live, nationwide guidelines for initiating prosecution and for disposing of cases need to be established and uniformly implemented.

Furthermore, a democratically elected administration must decide how much to emphasize a variety of law enforcement goals and policies, such as fighting organized crime syndicates, pursuing the death penalty, reducing gun violence, enforcing immigration laws, prosecuting corporate crime, combating terrorism, or attacking healthcare fraud. Because an administration cannot pursue all goals equally, it must develop its own law enforcement policies based on the values of the President and Attorney General. If U.S. Attorneys do not adhere to these policies, the Administration's goals will not be realized.

Another reason for lodging decisions in the DOJ is that the Administration and the DOJ bear the responsibility of setting policies when new criminal statutes come into force. New criminal laws need to be interpreted and prosecuted uniformly if they are to be applied uniformly. Prosecution of weak cases in one district runs the risk of producing bad precedents that will affect litigation everywhere. Therefore, Main Justice needs to oversee the implementation of new laws closely. Similar arguments justify central control over what cases will be appealed, especially when there is a conflict between circuits. From Main Justice's perspective, although a USAO may feel strongly that a case should be appealed, the DOJ must see the bigger picture and assess how a precedent set by that case might jeopardize the outcome of similar cases everywhere.

Other mechanisms of central control follow from the reasons just described. Main Justice needs to establish procedures and policies, such as those found in the U.S. Attorneys' Manual,(fn6) and to enforce adherence to them.(fn7) Enforcement requires monitoring USAO activities and performance through periodic inspections and mandated reporting systems. Moreover, Main Justice needs an extensive training program to induce its prosecutors to follow policies uniformly.

These arguments underlie the broad agreement that every new administration can select U.S. Attorneys who are committed to its law enforcement goals and who will faithfully implement them. Hardly anyone believes it is illegitimate for a new president to appoint his own U.S. Attorneys, to ask for the resignation of the previous administration's appointees, and to fire those who refuse to resign. Likewise, it stands to reason that an appointee who actively ignores or undermines Main Justice's policies can be asked to resign or, if necessary, be fired. Renegade U.S. Attorneys who pursue radically different policies from other U.S. Attorneys, who engage in questionable personal behavior, or who violate norms of professional integrity can be legitimately removed by the President to defend the integrity and image of the federal justice system.

B. The Case for Local Autonomy for USAOs

The mission statement of the DOJ explicitly recognizes the legitimacy and value of a U.S. Attorney's discretion.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.(fn8)

As chief law enforcement officer for a federal district, typically encompassing numerous local jurisdictions and sometimes an entire state, a U.S. Attorney has an obligation to deal with crime problems that state and local officials either cannot or will not address. Sometimes, local prosecutors and judges lack the competence or motivation to deal with problems such as gun or gang violence. Sometimes, the magnitude of the problem or complexity of a prosecution overwhelms local resources. For example, drug traffickers, whose activities cross state and even international barriers, cannot be successfully dealt with by most local police and prosecutors. Large health care or corporate fraud conspiracies pose nearly insurmountable obstacles to local criminal justice systems. There is little incentive for local prosecutors to pursue cases involving police...

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