“Loyalty to Bush and Gonzales,” blared Wednesday’s ominous headline in the New York Times, “Was Factor in Prosecutors’ Firings[.]”
One would hope so.
Of all the Bush-administration controversies, the tempest over the termination of eight United States attorneys, the top federal prosecutors in their jurisdictions, may ultimately rank as the most damaging. And not because it was the most serious, but because it was the most revealing: about the administration’s ineptitude and Washington’s hypocrisy.
As it does peerlessly, the Times has crafted the template for mainstream-media coverage of this saga. Loyalty to Bush and Gonzales — could anything be more sinister? That’s why, we’re told in yet another breathless dispatch, “Congressional Democrats … are investigating whether the White House was meddling in Justice Department affairs for political reasons.”
The storyline makes great theater. It is also absurd. You might as well ask whether Congress is proposing legislation for political reasons, or whether loyalty to the party leaders might have had a teensy-weensy bit to do with what bills got voted.
PROSECUTION AND POLITICS
Our system is political. It is intended to be. A White House meddling with the Justice Department for political reasons? The Justice Department, including the attorney general and all 93 U.S. attorneys, are high-ranking officers in one of our two political branches. The head of that branch, the executive branch, is the president. Under our Constitution, he is vested with all of the executive power, including the police power. That power is not divided among several players; it is singularly reposed in him. The president chooses all the U.S. attorneys, and, after Senate confirmation, they, like all executive-branch officers, serve at his pleasure. He doesn’t need a reason to fire any of them — he can ax them because he thinks it’s time for a change, or because it’s Thursday and his horoscope says the stars are aligned for pink slips.
What could be more political than that? Politics is a dirty word in our lexicon, but this is politics in the classic sense of accountability to voters. As it should be.
Writ large, prosecution is inherently a political undertaking. However obvious that should be to people of good will, it is necessary to elaborate because not everyone is of good will — they are apt to gasp, “Politics!” (bad), when they spot politics (good).
So let’s be clear. The prosecution of individual cases proceeds in accordance with constitutional and statutory protections for the individual. It is inherently a legal, not a political, process. Politics ought never intrude on it. But the same is decidedly not true of prosecution in the macro sense of setting enforcement priorities.
There are hundreds upon hundreds of potential offenses. But resources are sparse. Choices have to be made. Contrary to some legal systems which purport, impossibly, that the authorities should file charges any time they become aware of a crime, our system has always been based on prosecutorial discretion. We rely on the judgment of the government’s lawyer to decide what is worth pursuing and what isn’t.
That authority, though, doesn’t belong to the government’s lawyer. The U.S. attorney in any federal district exercises it as a delegate. The power belongs to the president.
For these purposes, the president’s chief aide is the attorney general. The president, with the attorney general’s assistance, sets priorities that determine how the nation’s prosecutorial resources will be targeted. When we speak of a U.S. attorney’s “loyalty” to the president and the attorney general, we are talking about fealty to those priorities.
Establishing them is a quintessentially political determination. It happens in every administration, Republican or Democrat. President Clinton and Attorney General Reno, for example, put their stamp on health-care fraud — aggressively prosecuting it and successfully lobbying congress to permit investigators to issue administrative subpoenas without judicial supervision (the same sort of thing now causing press paroxysms over the FBI’s issuance of national security letters — though separation-of-powers didn’t seem to concern the media much in the 1990s). Under Attorney General Alberto Gonzales, the Bush administration raised eyebrows when it announced in 2005 that a top enforcement objective would be pornography — not just the exploitation of children but smut of consenting adults, by consenting adults, and for consenting adults.
These are political judgments. They reflect what an administration thinks is important and will resonate with the voters who put it in power. They are precisely the type of judgment for which an administration ought to be accountable. Should we be devoting investigative assets to pornography in the middle of a terrorist war? Are we getting the most bang for our federal-enforcement buck if agents who might be tackling violent crime or drug trafficking are instead pouncing on doctors who bill for phony lab tests?
U.S. ATTORNEYS AND LOYALTY
Often, the administration’s judgments are bad. Or, at least, they miss the point that all crime, like all politics, is local. New York City’s backyard features Wall Street — the securities markets will always be a concern there regardless of how much significance Washington places on corporate fraud. The southwest is plagued by metastasizing illegal immigration even if the administration is not, shall we say, focused like a laser on border enforcement. And on it goes. From Washington, broad guidelines can be set, but a U.S. attorney has to be responsive to unique conditions in the jurisdiction. Inevitably, this invites tension between the U.S. attorney and Central Command.
Moreover, while Washington sets policy, the top prosecutor in a district has to worry about proof. The president may have been elected promising, for example, to enforce the death penalty vigorously. His Justice Department may consequently be predisposed to order capital prosecutions. But the U.S. attorney has to try the cases. He will embarrass his office, infuriate the district bench, and compromise his overall effectiveness by seeking death sentences on weak evidence. Programs are fine, but reality is reality.
And then there is political corruption. We have a two-party system. When corruption is alleged, of necessity, the U.S. attorney must investigate a member of either the president’s own party (which, of course, is generally the U.S. attorney’s party) or the president’s opposition. The pat story lines are whitewash or witch-hunt. Too lax, the U.S. attorney is accused of conflict of interest; too aggressive and politics is being criminalized. And all the while, ethics and politics chafe side by side: demanding that the U.S. attorney go wherever the evidence takes him; dictating that the White House assume a pose of hyper-restraint — amid the popular Washington gotcha-game where administration officials are asked a million times a day to comment on the case and condemned if they are foolish enough to oblige.
There are countless points of tension in the dynamic between the president and the U.S. attorneys he chooses. And that is even before we get to ordinary management considerations — the question whether an individual U.S. attorney is a leader who inspires subordinates, earns the respect of the court and the defense bar, and serves the public interest by moving cases efficiently.
It bears repeating that the authority at stake is the president’s. When a high-profile terrorism prosecution in Detroit disintegrates, the president and the Justice Department take the biggest hit. When a decision is made in Texas to indict not only fraudulent accountants but an entire corporation — putting it out of business and its innocent employees out of work — it is the administration that bears the heat. This is entirely appropriate. Nevertheless, it also illuminates what is always implicit: The buck stops with the president, and he must be able to remove those who act in his name for any reason or for no reason.
JUDGMENT VERSUS LEGITIMACY
It is here that the point is missed by actors on both sides of our political divides — partisan between Republicans and Democrats, and constitutional between the executive and legislative branches. Being an act of political discretion, the removal of eight U.S. attorneys can and should be critiqued as wise or unwise. That goes strictly to whether it’s good judgment, and in making that assessment, it’s equally appropriate to ask whether the critics are acting in good faith or opportunistically changing the rules in mid-game. To be legitimate, however, the removal requires no explanation.
Alas, everyone is in politics but no one, it seems, can admit to acting politically. So the Gonzales Justice Department has committed Washington’s worst sin: It has acted like its reasons were noble when in fact they were political, it has misled Congress about that fact, and, when called on it, it has caved … as if the act itself — rather than the dissembling about the act — was illegitimate. In fact, the act, though not the dissembling, was well within the administration’s rights: Its real-world political rights, not some metaphysical calling to do all that is good and just.
Why pretend there needed to be something high-minded about these removals? Why pretend that the White House had nothing to do with what is a presidential decision? That was guaranteed to turn a non-story into a controversy when, inevitably, it proved to be untrue. Why insist that the decision was performance-based? That was guaranteed to enrage the removed U.S. attorneys, which in turn was certain to galvanize their political sponsors and titillate a media on 24/7 scandal-mode. And if it turned out that there wasn’t clear evidence of poor performance, it was sure to feed the impression that something rotten was afoot.
As it happens, that doesn’t appear to be the case. To the extent ousted U.S. attorneys might have been pressured in the handling of particular investigations, that would have been improper, but the only such pressure seems to have come from Capitol Hill, not the White House. By contrast, to the extent ousted U.S. attorneys might have been pressured to be aggressive in moving the administration’s enforcement agenda, that would have been absolutely proper, but the White House and the attorney general don’t seem to have done much in that regard. President Bush evidently groused at some point about neglected voter-fraud investigations, but the attorney general doesn’t seem to remember the conversation and, in any event, there’s no indication that the removals were spurred by recalcitrance in the pursuit of election chicanery or any other administration bugaboo.
Meanwhile, Attorney General Gonzales’s “when do I run out of feet to shoot myself in?” performance has been more than matched by congressional hypocrisy, especially from Democrats. Most jaw-dropping, but hardly unique, is Senator Hillary Rodham Clinton. Seeking the presidency, she is pandering to her Bush-hating base about the firings. But, when her husband took office in 1993, he terminated virtually all of the sitting U.S. attorneys.
It was an act of sheer political muscle and naked political patronage. It mattered not the slightest bit to the media that many very fine U.S. attorneys — some presiding over very sensitive, politically charged cases (including one in Arkansas involving the Clintons) — lost their jobs. Clinton had the power to do it and he wanted his own people in. Period. And you know what? He was entitled. If a Bush-41 appointee had botched a major case, that would have redounded to Clinton’s detriment. If the administration wanted to focus on health-care fraud or other Democrat enforcement priorities, the president wanted to be sure each U.S. attorney would be, yes, loyal to those objectives. Loyalty — not skill, not ethics — was the difference between staying on or being fired.
So we have classic Washington farce. The politicians on Capitol Hill theatrically castigate the politicians in the administration for making political decisions about political appointees based on political considerations. The politicians in the administration reply, “That would never happen,” before conceding that it precisely happened … without their knowledge, of course. And the political press is aghast.