U.S. Attorney Update

Say, have you heard that the Administration's handling of U.S. attorneys has been in the news lately?

A few of today's headlines (with some words of two of the fired U.S. attorneys):

• McKay went from hero to zero with Justice Department, Seattle Times, 3/21/07.
• Fired McKay being treated unfairly, Reichert says, S. Times, 3/21/07.
• Timeline | John McKay's fall from favor, S. Times, 3/21/07.
• Bush fires back, stands by Gonzales, S. Times, 3/21/07.
• Justice Dept. saw McKay as 'effective' -- yet bristled at his 'insubordination', Seattle P-I, 3/21/07.
• McKay cites a 'grievous error', Seattle P-I (from N.Y. Times), 3/21/07:

  "What's hard to fathom," [McKay] said, "is that people sworn to support and defend the Constitution of the United States, who are Justice Department officials, didn't tell political people to go pound sand, which is what they should have done and which I expected them to do and which I know all my colleagues expected them to do."

• House Panel Authorizes Subpoenas for Top Bush Aides, New York Times, 3/21/07.
• David C. Iglesias [former U.S. Attorney for the District of New Mexico], Why I Was Fired, N.Y. Times, 3/21/07.

  United States attorneys have a long history of being insulated from politics. Although we receive our appointments through the political process (I am a Republican who was recommended by Senator Pete Domenici), we are expected to be apolitical once we are in office. I will never forget John Ashcroft, then the attorney general, telling me during the summer of 2001 that politics should play no role during my tenure. I took that message to heart. Little did I know that I could be fired for not being political.
  
  * * *
  
  As this story has unfolded these last few weeks, much has been made of my decision to not prosecute alleged voter fraud in New Mexico. Without the benefit of reviewing evidence gleaned from F.B.I. investigative reports, party officials in my state have said that I should have begun a prosecution. What the critics, who don’t have any experience as prosecutors, have asserted is reprehensible — namely that I should have proceeded without having proof beyond a reasonable doubt. The public has a right to believe that prosecution decisions are made on legal, not political, grounds.
  
  What’s more, their narrative has largely ignored that I was one of just two United States attorneys in the country to create a voter-fraud task force in 2004. Mine was bipartisan, and it included state and local law enforcement and election officials.
  
  After reviewing more than 100 complaints of voter fraud, I felt there was one possible case that should be prosecuted federally. I worked with the F.B.I. and the Justice Department’s public integrity section. As much as I wanted to prosecute the case, I could not overcome evidentiary problems. The Justice Department and the F.B.I. did not disagree with my decision in the end not to prosecute.

And one article from Sunday's Week in Review section: Adam Liptak, For Federal Prosecutors, Politics Is Ever-Present, N.Y. Times, 3/18/07.

“U.S. attorneys are the branch offices of the Department of Justice,” said Douglas W. Kmiec, a former Justice Department official in the administrations of Presidents Ronald Reagan and George H. W. Bush. “It’s an employer-employee relationship.”

As a legal matter, at least, that means the Justice Department was within its rights in the recent dismissals, said Rory Little, a former Justice Department official in the Clinton administration who is on an American Bar Association task force on prosecutorial ethics.

“It has always been a patronage position,” Mr. Little said. “Can the president fire a U.S. attorney for any reason at all? The answer is yes.”

At the same time, United States attorneys are by custom insulated from politics and have, except when administrations change, great job security. They are meant to make individual prosecutorial decisions based only on the facts of the cases before them, without regard to political consequences.

The Washington Post has a page linking to a couple of dozen of its stories about the U.S. attorney firings, if you've gotten behind on the controversy.