Bench Memos

Hill Hysteria?

I don’t claim to have been following closely the controversy over the recent dismissal of seven (or is it eight?) U.S. attorneys, but I have reviewed the internal Administration documents posted on the House Judiciary Committee’s website.  Based on what these documents show, the reaction to these dismissals seems curiously overwrought.  This Washington Post story from today, for example, seems to strain to characterize the documents in the most one-sided manner possible. 

 

Let me explain my understanding.  (As always, I invite correction if I misstate anything.)

 

1.  U.S. attorneys are executive-branch officials who serve at the pleasure of the President.  On the one hand, the President has plenary power to dismiss them for any reason—including failure to adhere to Administration priorities on law enforcement—or for no reason at all.  On the other, it is widely accepted (and, I certainly believe, sound) that decisions regarding prosecutions should not be politicized.  For that reason, it is generally highly imprudent for the White House to intervene in, or to offer advice or direction with regard to, a specific pending matter involving, say, prosecution of elected officials or candidates for elective office.  It would follow as well that, absent malfeasance, U.S. attorneys shouldn’t be fired because of dissatisfaction with their handling of an ongoing matter of that nature.

 

2.  The Post story asserts that decisions to dismiss the eight U.S. attorneys “were heavily influenced by assessments of the prosecutors’ political loyalty.”  This assertion evidently rests on a March 2, 2005, e-mail from Kyle Sampson (Attorney General Gonzales’s Chief of Staff) to White House counsel Harriet Miers that groups U.S. attorneys in three categories:  those whom DOJ recommends be retained, those it recommends be removed, and those as to whom it makes no recommendation.  Those in the “to be retained” category are said to be “strong U.S. Attorneys who have produced, managed well, and exhibited loyalty to the President and Attorney General.”  By contrast, those in the “to be removed” category are “weak U.S. Attorneys who have been ineffectual managers and prosecutors, chafed against Administration initiatives, etc.”  In context, it seems clear that Sampson and DOJ are not assessing “political loyalty” broadly understood but rather fidelity to “Administration initiatives”.  That is an entirely proper standard for assessing the performance of U.S. attorneys.

 

3.  As to several of the seven or eight removed U.S. attorneys, the documents that have been made available provide specific affirmative evidence that the decisions to remove were not made on improper grounds.  For example:

 

a.  A September 20, 2006, e-mail from a DOJ attorney, Brent Ward, to Sampson is titled “Obscenity cases” and complains:  “We have two U.S. Attorneys who are unwilling to take good cases we have presented to them.  They are Paul Charlton in Phoenix (this is urgent) and Dan Bogden in Las Vegas.”  The e-mail further indicates that the Attorney General had told folks to “kick butt and take names”.

 

b.  A May 31, 2006, e-mail from Sampson to Bill Mercer in the Office of the Deputy Attorney General (“ODAG”) asks:  “ Has ODAG ever called Carol Lam and woodshedded her re immigration enforcement?  Has anyone?”  (Lam was U.S. attorney for the Southern District of California.)

 

4.  That the White House wanted Tim Griffin to become U.S. attorney in Arkansas does not suggest any nefarious reason for the removal of U.S. attorney Bud Cummins.  No one (especially no one on the Hill) should be surprised, much less scandalized, that political favorites get political appointments.  That’s true in every Administration.  That fact in no way suggests that the White House wanted Griffin to run the U.S. attorney’s office in a politicized way—or that it was punishing Cummins for not having done so.

 

5.  The very fact that the decisionmaking process on the dismissals took so long—nearly two years—is powerful evidence that the dismissals were not a general effort to push folks out in a hurry in order to affect the handling of pending cases.

 

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