TCS Daily


Newsflash: Politics Do Exist in Federal Prosecutions

By Michael M. Rosen and Mark Edelman - April 5, 2007 12:00 AM

It seems as though congressional Democrats and their allies in the media are having a Claude Rains moment: like Casablanca's immortal Captain Renault, they purport to be "shocked - shocked!" to discover that our federal justice system contains an element of - gasp! - politics.

But amidst the toxic whirlwind currently encircling the White House and Attorney General Alberto Gonzales over the recent firing of eight United States Attorneys, the administration's harshest critics seem to have forgotten two key principles to which they seemed to adhere as recently as the middle of last year.

First, the Constitution vests in the President the power and responsibility to "take care that the laws be faithfully executed." U.S. attorneys are extensions of the President and his Attorney General, empowered to implement the law enforcement strategy of the President within their jurisdictions. They are political appointees who serve at the pleasure of the President and can be dismissed at any time for cause or by whim.

Second, although there has been much teeth-gnashing over the threat to the "independence" of federal prosecutors posed by these firings, U.S. attorneys are not, and have never been, independent. And that is not a bad thing. After all, "independent" is often a euphemism for "unaccountable." Congressional Democrats seem to suffer from amnesia when it comes to the consequences of "independent" prosecutors. Does Ken Starr's name ring any bells?

The political descendants of Andrew Jackson, who made political removal from office almost a fetish, have in the past stoutly adhered to the principles of presidential responsibility and control.

Consider:

* In the 1930's, a senator from Missouri named Harry Truman vigorously opposed the anti-corruption investigation carried out by Maurice Milligan, the U.S. Attorney in his home state. The inquiry focused on the infamous Pendergast political machine and so infuriated Senator Truman that he (unsuccessfully) mounted a filibuster against Milligan's Senate reconfirmation. When Truman became president, one of his first acts was to fire Milligan, along with the Attorney General who protested the firing.

* Less than 50 years later, President Clinton - acting through Attorney General Janet Reno - dismissed all 93 U.S. Attorneys, at the time telling reporters "all those people are routinely replaced, and I have not done anything differently." (In fact, his predecessors had held over numerous top prosecutors from previous administrations in order to ensure continuity.) But at the time, few journalists and fewer Democrats questioned the White House's prerogative to appoint U.S. Attorneys that would further the goals of the newly populated Justice Department.

Of course, now that a Republican president has done more or less the same thing, howls of disapproval emanate from every corner. Senator Hillary Clinton, whose husband summarily dismissed all of his regional top cops, has called for Gonzales's resignation for injecting politics into the justice system.

To be sure, the Bush administration itself bears a great deal of blame for this debacle by allowing inaccurate information to trickle out and for its insufficiently vigorous defense of the President's prerogative. By insisting early and often that the decisions to replace the eight U.S. attorneys stemmed exclusively from their performance, the administration frittered away its credibility, and created the impression of wrongdoing. If only the White House had defended the legitimate role of politics in federal prosecutions as effectively as Democrats now denounce it (their previous predilections notwithstanding), this whole mess might have been avoided.

Just last year, California's own Senator Dianne Feinstein wrote a scathing letter to the Justice Department, complaining about the paucity of border crime prosecutions by one of the removed attorneys, Carol Lam of San Diego. Feinstein complained that "the U.S. Attorney's Office for the Southern District of California may have some of the most restrictive prosecutorial guidelines nationwide for immigration cases" and urged Attorney General Gonzales to ensure that Lam engaged in "vigorously prosecuting" border crimes.

Now Feinstein suggests that Lam's removal resulted from her successful corruption prosecution of former GOP Congressman Randy "Duke" Cunningham. Feinstein even speculates that Deborah Yang, formerly the U.S. attorney in Los Angeles but not one of the eight, may have been forced out for pursuing a politically-inconvenient corruption investigation.

Although such hypocrisy is disappointing, we, unlike Captain Renault, are not shocked to learn that congressional scandalmongers are motivated by politics.

Michael M. Rosen, TCS Daily's intellectual property columnist, and Mark Edelman, who formerly served in the Justice Department, are both attorneys in San Diego.



2 Comments

No one seems to disagree...
Or even to agree with any vigor. And this TCS crowd is opinionated. Therefore, it seems to me that this is, indeed, a "tempest in a teapot" brewed up by a political crowd and that it is being kept alive by the media. Whereas, no one else thinks very much about it.

My read is that any political energy devoted to the Attorney General draws strength away from real issues.

This is important as the President tries to get Iraq simmered down enough to pass it off to the Shiites so that he can both take credit for bringing an end to the civil war and then he can blame Muqtada al-Sadr for starting it back up again after we are no longer on the streets.

For their part the Democrats need to distract attention away from their candidates for the next few months. The primaries are too far away and every time they say someting out loud they say something questionable.

The longer that Alberto Gonzales can hold onto his seat the better. Thank goodness he is not a mean old white man. And that he has a nice smile.

Politics should be fun, boys and girls. We pay good money for this theatre we call government. We should be entertained.

blaming Sadr
We can already blame Sadr. It was know right away what he really was, and it was recommended at the time(not only by me)that he be taken out.

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