What's really wrong with the Bush Justice Department.
Our system of government tries to limit the sway of partisan politics over the law by giving life tenure to federal judges. But it doesn't do the same for the attorney general or the lawyers who work for him. They serve at the pleasure of the president, to whom we grant the legal authority to fire anyone from his team for any reason.
The straightforwardness of this rule helps explain why the Bush administration's firing of seven U.S. attorneys at the beginning of December, plus an eighth last summer, didn't immediately ignite into controversy. But what's come out since then makes clear that this targeted removal of prosecutors was different in kind as well as degree from political dramas at the Department of Justice in prior administrations. In the context of other Bush administration assaults on DOJ lawyers, the U.S. attorney scandal confirms the administration's disdain for the nonpolitical tradition of federal law enforcement.
Interfering with the independence of the US Legal System
The attorney general and the lawyers who work for him represent the administration that picks them. But their client is the United States, and the oath they swear is to uphold the nation's laws and the Constitution. The country's 93 U.S. attorneys transform from political appointees into public servants when they join the Justice Department. Once in place, they gain a significant measure of independence. For most crimes, they have the power to indict without approval from "Main Justice," the Washington, D.C. headquarters. This independence is "vital to ensuring the fair and impartial administration of justice," in the words of Mary Jo White, a former U.S. attorney who worked in the Justice Department for both Republican and Democratic attorneys general.It's not unusual for a political litmus test to be applied before an appointment but the fact that the litmus test was applied after an appointment is unique and dangerous.
The White House and DoJ are now under fire because, in disrespecting the post of U.S. attorney, they appeared to interfere with the independence of that office in a way that's unprecedented. In the previous quarter-century, according to the Congressional Research Service, no more than five and perhaps only two U.S. attorneys, out of 486 appointed by a president and confirmed by the Senate, have been similarly forced out—in the middle of a presidential term for reasons not related to misconduct. "It would be unprecedented for the Department of Justice or the president to ask for the resignations of United States attorneys during an administration, except in rare instances of misconduct or for other significant cause," White said when she testified in February about the Bush firings before much was known about them. Previous midterm removals include those of a Reagan U.S. attorney fired and convicted for leaking confidential information and a Clinton appointee who resigned under pressure after he lost a major drug case and allegedly went to an adult club and bit a topless dancer on the arm. This time, the stories are quite different.
Three of the fired U.S. attorneys—David Iglesias of New Mexico, Carol Lam of the southern district of California, and John McKay of the western district of Washington—were lauded by the Justice Department before they were fired. Bud Cummins, former U.S. attorney of Arkansas's eastern district, was told that the only reason he was being pushed out was to make way for J. Timothy Griffin, a protégé of Karl Rove and a one-time Republican National Committee staffer known for his skill at opposition research, not his legal acumen. According to an e-mail from Kyle Sampson, the DoJ official who resigned this week over his role in the firings, getting Griffin appointed "was important to Harriet, Karl, etc."—Harriet Miers, then-White House counsel, and Karl Rove, the president's top political adviser. Given Griffin's thin qualifications for the job, the position of U.S. attorney was reduced to nothing more than a patronage perk.If Bloggers had not kept the story alive and if the Democrats had not taken control of congress the actions of the criminal enterprise known as the Bush administration would have once again gone unreported.
Home-state politicians and White House officials clearly had a hand in other firings. Allen Weh, chairman of the New Mexico Republican Party, told McClatchy newspapers that in 2005, he urged Karl Rove to have Iglesias fired because he failed to indict some Democrats for voter fraud. Iglesias testified that Sen. Pete Domenici and Rep. Heather Wilson, both Republicans from New Mexico, "leaned on" him for the same reason. In each instance, there was direct and, to Iglesias, sickening political interference. The facts add up to retaliation for a decision not to prosecute, which stabs at the heart of prosecutorial discretion.
As for Lam, she successfully prosecuted and convicted on corruption charges former Republican and San Diego Rep. Randy "Duke" Cunningham. Yesterday on the Senate floor, Arlen Specter, the Republican from Pennsylvania, asked whether she was dismissed because she was "about to investigate other people who were politically powerful." And former U.S. Attorney John McKay felt that he was under pressure from the office of Doc Hastings, a Republican congressman from Washington.