The Real Mistake Made in the U.S. Attorney Firings
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by Rachel Alexander | March 20th, 2007

 Republicans should stop claiming that decisions regarding political appointees are made solely based on the "qualifications" of the candidates, denying that any of the selection process is political. It is this denial that gets them into hot water. Clinton's firing of the White House Travel Office was much worse than firing politically appointed U.S. Attorneys. Republicans have allowed Democrats to turn the firings into a scandal by focusing on the distinction between the words "poor performance" and "political reasons." 

Much has been made about the Bush administration's firing of eight U.S. Attorneys last year, and it appears inevitable that Attorney General Alberto Gonzales will resign this week. The complaint is that the eight U.S. Attorneys were fired for "political reasons," not "poor performance," the reason given initially by the Bush administration. Democrats contend that the administration retaliated against the U.S. Attorneys for their failure to prosecute corruption by Democrats and certain other crimes. The problem with these accusations is that it is not against the law for the president to remove appointed U.S. attorneys from their positions – for political reasons or poor performance or both. Political appointees are comparable to at-will employees; they can be removed for almost any reason unless specifically prohibited by law; an example of a prohibited reason would be on the basis of race. U.S. attorneys serve entirely at the pleasure of the president. Under Bush, the Patriot Act was amended to eliminate any requirement that the Senate approve U.S. Attorney appointments.

Democrats have turned the firings into a scandal by focusing on the distinction between the words "poor performance" and "political reasons." It's a red herring argument, though, because not only are the two reasons both acceptable, they're not mutually exclusive. Investigating Republicans for crimes while allowing allegations of crimes by Democrats to sit without serious investigation is both partisan and incompetent. In addition, sources say there are specific examples of incompetence by these attorneys that the White House is currently prohibited from releasing at this time.

Several of the fired U.S. Attorneys assert that they were ranked top performers by the Department of Justice in 2005. However, at that time it was not known yet where they were in the investigations of some of the fraud and corruption cases that had been brought to their attention. Just because eight U.S. Attorneys received good performance reviews one year doesn't mean those eight will necessarily receive good reviews the following year -for eight out of 100 or so attorneys across the country to receive poor reviews is not an odd occurrence.

The White House has received harsh criticism for replacing some of the U.S. Attorneys with friends and allies. Historically, presidents have always chosen their friends and others with similar political beliefs as political appointees. John F. Kennedy appointed his brother Robert – who was by no means qualified – as Attorney General. Bill Clinton was notorious for appointing his friends and FOB's (Democratic contributors he paid back even acquired their own acronym, meaning "Friends of Bill"), and in fact went a step further when he fired the White House travel office staff and replaced them with friends of Hillary. The travel office positions were administrative positions, not even policy positions involving discretion. No high-level Clinton appointees were forced to resign over it.

Clinton fired all 93 U.S. attorneys immediately after taking office. Critics contend that this was somehow different, since it occurred at the beginning of Clinton's presidential administration. However, there is no explanation offered or legal difference. They were all appointees from a prior administration, mainly Reagan appointees. Unlike Clinton, George W. Bush did not fire all of the existing U.S. attorneys when he took office, he left a few in their positions. So in a way it makes sense that he eliminated eight a bit later into his second term. Just because President Clinton didn't do it the way Bush did it doesn't make it wrong. President Clinton doesn't set the standards of behavior for presidents.

A Washington Post article claimed that "legal experts and former prosecutors say the firing of a large number of prosecutors in the middle of a term appears to be unprecedented and threatens the independence of prosecutors." This isn't accurate, because appointed U.S. Attorneys are expected to follow the lead of the administration, and other presidents have fired U.S. Attorneys midterm. According to reports, Karl Rove and Harriet Miers wanted to fire all of the U.S. attorneys at the beginning of Bush's second term. Ironically, firing all of them at once at the beginning of his second term would have been more acceptable by the Democrats and their friends in the media than firing eight U.S. Attorneys two years into the term.

Presidents cannot be prohibited from appointing people they know, because by the time a presidential candidate is elected, he knows thousands of people with political backgrounds; he's able to spot some that would make good leaders and for the rest must rely on the advice of advisors who know them. It would be foolish to try and prohibit presidents from hiring anyone they know or have any connection with, since that could disqualify half of the potential candidates. Presidents know or have connections to more people around the country than practically anyone.

It's no secret that Republican presidents primarily appoint Republicans as U.S. Attorneys, and Democratic Presidents primarily appoint Democrats as U.S. Attorneys. To pretend that these positions aren't partisan is nothing more than smoke and mirrors. Appointed U.S. Attorneys aren't given lifelong tenure like Supreme Court justices. If it would be better policy to appoint U.S. Attorneys to lifelong terms, then the law needs to be changed. Democrats can't just ignore the law for years until a time when it suits their purposes, and then indulge in rhetoric making up things in the law that aren't there. Under current law, U.S. Attorneys can't be "independent" since they answer to the presidential administration they serve under, which changes every four to eight years.

Republicans should stop claiming that political appointments are made solely on the "qualifications" of the candidates, and denying that any of the selection process is political. It is this denial that gets them into hot water. Democrats are exploiting this mincing of words in order to distract focus from the actual firing to the discrepancy in the explanation instead, in order to create a scandal. Just like they did in the Valerie Plame case. Republicans fell into the same trap again. Too much spin can go over the line and backfire; at some point spin reaches the point where it can be successfully attacked by partisans as a lie. Democrats have taken the lead at phrasing the debate, turning the public's focus to the discrepancy in the explanation for the firings. This allows them to ignore the larger problem which is appointed U.S. Attorneys following their own (left wing in this case) agenda.

If U.S. Attorneys are supposed to be "independent," as the mainstream media is clamoring, then why have appointments at all? They could be elected instead, or appointed for life like U.S. Supreme Court justices. The Senate is looking at changes to the law now that would remove sole discretion for appointments from the Executive branch. But this doesn't change the fact that firing the eight U.S. attorneys did not violate the law last year.

The U.S. District Attorney has some discretion over which crimes are prosecuted; more resources can always be spent in certain areas over others. Several, if not all, of these attorneys deliberately ignored or refused to prosecute certain crimes, including drug crimes and allegations of political corruption by Democrats. However, these same attorneys had no problem investigating political corruption by Republicans.

Here in the Southwest, U.S. Attorneys were removed from office for using their offices to promote their own political agendas. Paul Charlton, the U.S. Attorney for the District of Arizona, avoided prosecuting illegal immigration crimes, even though Arizona voters overwhelmingly approved four anti-illegal measures last fall. He also refused to prosecute certain drug crimes and avoided seeking the death penalty. The U.S. Attorney in San Diego avoided prosecuting human smugglers, or "coyotes."

There are complaints that high-level Republican officials put "heavy-handed political pressure" on some of the U.S. Attorneys, asking whether charges had been brought yet against certain Democrats accused of crimes. However, according to former U.S. Attorney Joseph DiGenova, this was normal, Congressmen called him "all the time" asking about cases. U.S. Attorney David C. Iglesias from New Mexico claims that Senator Pete Domenici called him asking if he was going to file indictments for corruption against Democrats involved in a courthouse construction project. Iglesias told the Senator no. If Iglesias thought it was improper to discuss possible indictments, then he shouldn't have answered.

Iglesias was asked in 2004 by Republican officials to investigate voter fraud. Young teenage boys had received voter registration cards in the mail, indicating someone had forged their signatures and birthdates. Iglesias failed to bring criminal charges against the liberal group responsible, Association of Community Associations for Reform Now (ACORN). ACORN has a reputation as the group most responsible today for voter fraud. When Iglesias found a woman working for ACORN who had falsified the applications, he said that she wasn't prosecutable because she had only done it for money, not political reasons. That isn't a valid excuse, and provides an easy way for ACORN to get around voter fraud laws by claiming that its employees were not politically motivated.

Many of the fired U.S. Attorneys claim that they did not have enough resources to prosecute "smaller" crimes such as voter fraud. U.S. Attorney John McKay of Seattle claims he was also ousted for failure to prosecute ACORN for voter fraud. However, this is not a legitimate excuse, because the American people believe voter fraud is important and want it prosecuted. In Arizona, voters were so concerned they passed Proposition 200 in 2004, which requires proof of citizenship in order to register to vote, and proper identification at the polls.

The Republicans who have been the most vocal criticizing the firings are Senators John Sununu, Gordon Smith, and Arlen Specter. It is no coincidence that these Senators are also liberal Republicans – something they have in common with the fired U.S. Attorneys. Smith received scores of 58 and 72 from the American Conservative Union in 2005 and 2006, Specter received 63 and 43, and Sununu received 83 and 88.It's not surprising they think Republican political appointees should be able to follow their own left-leaning agenda against the president they serve under.

The White House needs to own up to the political dimension underlying its decisions to fire the U.S. Attorneys. U.S. Attorneys should be held accountable to the administration, providing checks and balances against the liberal judiciary. The liberal judiciary is out of control and out of touch. The Democrats' proposed bill would transfer discretion over U.S. Attorney appointments to the federal courts. This would be a grave mistake, since the U.S. Attorneys' Offices would become bastions of liberal ideology, targeting Republicans, refusing to seek the death penalty, enforce immigration laws or certain drug laws.

Labels: Politics: General, The Courts, Legal, Criminal Justice, Death Penalty, The Left Wing

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Responses to "The Real Mistake Made in the U.S. Attorney Firings"

  1. There you go again – arguing the issue. The issue is not the issue; hampering the administration at every turn is the issue, and has been since the election of 2000, which the Democrats still aren’t over. Can’t win at the polls? No problem. Keep the administration from pursuing its goals by tying it up with faux scandals.
    When asked about the firings, the initial response should have been, “My prerogative; and if you don’t like it, go fly a kite.” If Gonzales couldn’t see this coming and head it off, perhaps he should lose his job.

    Comment by sedonaman | March 22, 2007

  2. Several points of contention:

    1. I don't see the logic in saying that the Travel Office firings were somehow MUCH worse than the firing of U.S. attorneys. Did the Travel Office firings impact the lives of those people fired, and their families? Perhaps. In the case of U.S. attorneys, as you know these folks wield tremendous power. The have the ability to send people to prison–and even through the simply act of an indictment, they can ruin an innocent person's reputation and financial well-being. This recent political case in the 7th Circuit Court of Appeals in Chicago highlights these issues. http://www.madison.com/wsj/home/local/index.php?ntid=128161

    2. It isn't wrong to say that these firings are unprecedented, because they are. If there was evidence to demonstrate that 8 mid-term firings were par for course, this evidence should have been included in the article. If there is a revision in the works, this would be one area where you could strengthen your argument. The evidence that I have seen suggests that only ten U.S. Attorneys have been fired since 1980. None for blatantly political reasons. That's only TEN in almost 30 years. So yes, there is something different here.

    3. In reference to the administration not being aware of corruption cases, in the case of Carol Lam this is a huge stretch. The MZM, ADCS case in San Diego has already resulted in the conviction of one U.S. representative, and indictments have been brought against the #3 person at the CIA. Other charges may come about in reference to two other representatives. So it seems like a stretch to say that the DOJ wasn't aware of these issues. Perhaps they didn't factor into Lam's firing, but to say that they weren't aware suggests a level of professional incompetence among the political staff at the DOJ that should raise additional concerns.

    4. This article glosses over the removal of the Senate's "advice and consent" role in last year's Patriot Act. This in itself is a very big deal seeing that this maneuver deviates from over 200 years of precedent. If someone professes to be a thinking conservative, I would suspect that they would be aware of Hamilton's Federalist Paper #76 which deals exactly with this issue concerning why it is important to have the Senate's "advice and consent" on these type of appointments. If a person is genuinely concerned about having U.S. Attorneys who are too liberal–this provision serves as a necessary check. A more liberal president than the current one would be able to ramrod the most liberal of liberal U.S. attorneys down the throat of the American public under this revised authority. So it's frankly ludicrous to suggest that this is an issue that can be glossed over. I suspect the 94-2 Senate vote to revoke this new authority underlines this point.

    5. The issue of funding is absolutely essential. Traditionally, when a White House makes something like voter fraud or immigration a priority they signal the priority to U.S. attorney offices through targeted funding. This White House did not, which only raises further questions. Perhaps the White House sent out memos to this effect, but as of yet, they have provided no evidence that they did.

    The bottom line here, is that no one, except for the White House and some at DOJ really knows what went on here. We can dream up explanations for them from now until eternity.

    But it is in the White House interests; that of the Justice Department; and the public generally to receive a full accounting of what exactly went on. The potential for abuse here should be obvious to conservatives of the Constitutionally inclined type.

    It may be that nothing illegal occurred, but given the shifting explanations from the White House, and its lack of forthcoming, it is becoming harder and harder to believe that these firings were done for entirely legitimate, and legal reasons.

    Comment by JR37 | April 6, 2007

  3. JR37:

    “I don't see the logic in saying that the Travel Office firings were somehow MUCH worse than the firing of U.S. attorneys. Did the Travel Office firings impact the lives of those people fired, and their families?”

    They at least as bad because instead of just asking for their resignations, Clinton found it necessary to beat up on some little people by accusing one of them of financial malfeasance. The employee was later exonerated in court, and Clinton’s reaction was, “I wish him well.” What a big heart for someone who claimed to “feel our pain” and to be for the little guy, as Democrats are wont to do. If you were fired and put on trial on a trumped-up criminal charge, would it affect you and your family?

    “The evidence that I have seen suggests that only ten U.S. Attorneys have been fired since 1980. None for blatantly political reasons.”

    Clinton fired all 93 when he took office in 1993. No politician, especially the Clintons, ever do anything without a political reason, blatant or otherwise, so the implied idea that we have to get politics out of politics is ludicrous.

    “This article glosses over the removal of the Senate's ‘advice and consent’ role in last year's Patriot Act.”

    What do you mean? The Senate got to vote on renewal of the Patriot Act last year.
    “. . .they [the White House] signal the priority to U.S. attorney offices through targeted funding. This White House did not, which only raises further questions. Perhaps the White House sent out memos to this effect, but as of yet, they have provided no evidence that they did.”
    I don’t understand this statement. Where’s your evidence they did not target funding. Besides, I spent many years in government, and all that is necessary is for the president to give verbal direction in a staff meeting.

    As I see the whole affair, the president gave one reason for the firing, and the attorney general gave a different one. The Manichaean media jumped on the story as an apparent contradiction [ergo, Bush lied] when the reasons were probably BOTH true; that is, they weren’t working on what the president wanted (performance), so he exercised his option of firing them (political). So what ??!!

    As far as the “advise (not ‘advice’) and consent of the Senate,” have you not noticed that it has become “campaign and hurling invectives of the Senate”? There certainly has been a gross lack of advising and consenting coming out of that chamber in the last six years, all because Gore lost; and, as a result, the minority Democrats aren’t getting the nominees they want. Well, what does one expect of a Republican president, liberal nominees (as though we get conservative ones from Democrat presidents)?

    Comment by sedonaman | April 7, 2007

  4. Sedonaman,

    Thanks for sharing the thoughts.

    1. If you have a reference on this I'll be glad to take a look at it. I agree that's not good if a person from the Travel Office was taken to court. However, if you have a problem with that incident, then you should have problems with that power multiplied several times over. To say that you are troubled by the one instance, but to say that that instance multiplied several times over is not troubling, just doesn't make sense to me. These mid-term firings on political grounds are a terrible precedent to set. It doesn't matter what the President's party affiliation is. That's a consistent principle.

    2. I don't disagree that politics enter into the selection process. Politically connected prosecutors get selected because local politicians–and especially Senators recommend these people. It behooves the president to head the "advice and consent" provision of the Constitution, because it helps with the nomination/confirmation process. Once these people are in their jobs though they are not supposed to administer justice with an eye towards a person's party affiliation. The facts remain in dispute in this instance, but there are reasonable grounds for asking to see all of the available evidence. There is a reason that presidentS have never exercised this authority as liberally as George W. Bush did. We are talking about a 200 year deviation from historical practices.

    3. Correction: 2005 renewal of the Patriot Act. Do a Google search under "Brett Tolman Patriot Act" and I suspect you'll find some articles. He was the staffer on Sen. Specter's staff who inserted this revised provision into the law (and later appears to have been rewarded with a U.S. attorney post in Utah). Even the author above cites this fact in her article. So it's not a fact that is in dispute.

    4. The president hasn't really given any reason other than to say that the firings weren't illegal. That's all well and good, but show me the emails and the notes that led up to this process. What was the standard that the administration applied; when did they apply it; and how was involved? It is in the administration's interests, and that of our nation long-term to resolve this matter ASAP. This won't happen without full disclosure of the processes involved.

    5. The Manichean media was actually pretty slow to jump. This story first broke in local papers a few months back in early January. A one-time journalist and blogger noticed this information coming out in small town papers and wondered what was going on. If you understand the issues at stake here (we are dealing with serious Constitutional questions over the president's use of the Justice department), then you understand what's at stake here. If a person doesn't, they reduce this whole episode to some facile explanation like 93 and 8, which has no relevance, or "these guys serve at the President's pleasure so we shouldn't ask any questions even in circumstance that are a deviation from over 200 years of tradition and practice," which strikes me as a pretty perverse way to treat an employee (our elected officials are after all our employees, and this is our country too).

    6. "Advice and Consent" is what is in the Constitution. People refer to "advise and consent" because that usage is more accurate grammatical. I don't see any real distinction between the two terms, the refer to the same Constitutional procedure.

    7. Gore lost, so what.

    8. Even Alexander Hamilton stated in Federalist #76 under the Nomination process the President will not always get the person that he wants "in the first degree". Well, if you exploit a loop hole in the Constitution you apparently can. When it's expedient the President wants an "up or down" vote. When it's not expedient, he completely reverses himself and searches for loop holes. When a person applies one standard in one situation and another in standard in a parallel situation later, they are general considered to be hypocrites. What was the guiding principle? Well, apparently expediency. That's a pretty low standard in my view.

    The issue with the recent Bush nominees wasn't that they weren't "liberal enough" but that in many cases they were simply unqualified. In what kind of through the looking glass universe is the person who administers product safety a trade lobbyist for a manufacturing association? In what kind of through the looking glass universe do we replace experienced prosecutors with decades of experience with kids who are only a few years out of law school, and in some cases without ANY prosecutorial experience? How is that ensuring that the laws are "faithfully executed"? (Rhetorical question: there is no good answer).

    Comment by JR37 | April 9, 2007

  5. JR37:
    Here is what CNN (not a Bush supporter) said about the travel office firings:
    “Few have disputed the administration's prerogative to replace the travel staff. But Republicans charged the White House misused the FBI to manufacture false criminal charges against former travel director Billy Dale and his six colleagues, who later were quickly acquitted in court.” http://www.cnn.com/ALLPOLITICS/1996/news/9609/18/travelgate/index.shtml
    Ignoring the Republican charges, the point here is the Clintons (most likely Hillary) found it insufficient to ask for their resignations or fire them outright but sought to justify beating up some little people by “manufacturing false criminal charges” in order just to replace them with their own. It doesn’t look good for the “I-feel-your-pain” self-appointed champion of the common working stiff to deprive him of a job. I do not question his prerogative to replace them, but the charging them with a crime. The fact they were charged and acquitted quickly indicates two things: 1) they were tried in court, and 2) the charges were manufactured because they were “quickly acquitted.”
    “The facts remain in dispute in this instance (Bush’s firings), but there are reasonable grounds for asking to see all of the available evidence.”
    What reasonable grounds? Bush Derangement Syndrome? The fact that “evidence” is demanded implies a crime has been committed.
    “Gore lost, so what(?)”
    There is more reason here to suspect continued sour grapes at Gore’s losing than any “evidence” of wrong-doing on Bush’s part. “Gore lost, so by golly, we’ve got to keep Bush from succeeding.” However, I will agree with Krauthammer that if Gonzales couldn’t head off this witch hunt, he probably should resign.
    “The issue with the recent Bush nominees wasn't that they weren't ‘liberal enough’ but that in many cases they were simply unqualified.”
    Give me a break. Who would send up a nominee who was obviously unqualified and open himself to embarrassment? I suspect this charge is more accurately described as, “Unqualified because they won’t give us the liberal decisions we want.” Questions like, “Do you feel your strong personal beliefs will interfere with your ability to interpret the law?” reveal the fact that liberals want liberal decisions. I don’t begrudge them that; I want conservative decisions. What irritates me is the faux altruism.
    Perhaps you’re too young to remember, but I noticed that “qualified” was not a concern when President Kennedy appointed his younger brother Bobby to be attorney general “so he could get some legal experience” (Kennedy’s words, not mine). Where was the “looking glass” then? “Unqualified” is a question liberal nominees never have to answer, but became a concern only when conservatives like Reagan tried to re-introduce some balance in response to liberals who had clearly (to conservatives) gotten excessive. Democrats had to rely on their old tactic of personal destruction, as in the cases of Bork, Thomas, Roberts, Alito, and the travel office workers. By contrast, there is no such thing as being “Ginsberged”. You’ve got to ask yourself why.

    Comment by sedonaman | April 9, 2007

  6. First, in reference to the Gore theory, it's possible that some people have this baggage.

    Where I come from that would be considered a "through the looking glass" decision,
    I say "so what" because I didn't vote for Gore in 2000–I had no attachment to his candidacy. I actually voted for McCain in the primary, because I thought he would be the best candidate. During the general election I focused my attention on local candidates and local federal races.

    I think Gore would have been an average president at best. As far as the Supreme Court decision goes, I think the decision was based mostly on expedience. However, I respect that the Constitutional path was adhered too, and respect the outcome. This isn't an issue for me.

    These are all nice theories, but the facts are that a number of people in the legal community of both political persuasions are disturbed by the overt politicization of the Justice department under George W. Bush–especially among former U.S. attorneys and former Assistant U.S. attorneys of both political persuasions. I am comfortable saying that I don't like a president's political adviser and young political appointees judging the merits of U.S. Attorneys, because I don't want any president to exercise power in this way–regardless of political affiliation. If a person is comfortable allowing a Democratic president to selectively fire U.S. Attorneys mid-term for ostensibly political reasons, and then refuse to fully disclose the decision making process that was undertaken, so be it. But I think there are reasons to understand why this new precedent would be a terrible one to set for future presidents. Do you really want a Democratic president to exercise these authorities in the same way that Bush has? These firings ARE unprecedented.

    That's an interesting question about the nominees. Why would someone send up obviously unqualified nominee and risk embarrassment of having the nominees shot down? Well, Bush actually must have been worried about the embarrassment, because he withdrew the nominations in the 11th hour to avoid a vote of no-confidence, and pushed these through during the short-recess. I realize that other presidents have done this in recent years–including Clinton, George H.W. Bush, and Reagan–and this is once again an area of the law that I think is being abused.

    Traditionally presidents used the recess appointments during the long Senate recess in order to make sure that the Executive branch would be able to continue to function. Once the recess was over they would then submit the nominees to the Senate for confirmation. If you read the Framers writings it is clear that the recess appointments were not designed as a back door to avoid the Senate confirmation process. I would be perfectly comfortable with an amendment holding ALL presidents to this standard . . . .

    The through the looking glass is the idea that people with little to no prosecutorial experience will make better U.S. attorneys than professionals with years of experience as Assistant U.S. attorneys. Traditionally U.S. attorneys have also been drawn from local districts, so that they have familiarity with the communities in which they serve. Presidents have leaned on local political parties and Senators for finding qualified candidates. George W. Bush has departed from this precedent in ways that are out of step with previous presidents.

    This is a little bit like saying you would rather have heart surgery performed by a high school biology student, than by someone who has a medical degree from a top university, and who has decades of experience performing successful heart surgeries. . If you want to have open heart surgery performed by a high school biology student; or our Federal prosecutors drawn from the ranks of recent law school graduates. So be it. I think this idea is absolutely crazy personally.

    As far as Bush Derangement Syndrome goes, this BDS cuts both ways. If a person thinks that a man is above the law and should be able to do whatever he wants, as many Bush apologists seem to argue, then they are saying that they would be comfortable with a term limited dictator who can do whatever he or she wants. Once again, I see this as a serious deviation from precedent, and something that is not in keeping faith with our Constitutional system. If you are comfortable letting the Bush precedents stand, so be it–so long as you are willing to apply that standard consistently in the future–even for Democratic presidents. Once again, I would say look before leaping.

    Finally, in reference to the travel office firings. You are aware that Ken Starr investigated this and found no wrongdoing on the part of the Clinton's? If you want to sit down with the independent counsel's report and get some background here it is: http://icreport.access.gpo.gov/watkins.html

    Comment by JR37 | April 9, 2007

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