What's really wrong with the Bush Justice Department.
In the Bush years, by contrast, senior political appointees have applied a political litmus test to the work of career lawyers and punished them for failing it. William Yeomans, a lawyer in the department's Civil Rights Division from 1981 until 2005, told part of this story in Legal Affairs, the magazine I edited. Many leading career attorneys—they number in the dozens—have been forced out, removed, or transferred. In a concerted effort by the Bush administration to remake the career staff, Yeomans says, these veterans were replaced by the hirees of political appointees, chosen with no input from the longtime career staff.
Yeomans also recounted the division's retreat from defending traditional civil rights. Of many examples, the most dramatic involve lack of enforcement of the Voting Rights Act because the beneficiaries would likely support Democratic candidates. For Yeomans and others, working in the Bush administration was very different from their experience in previous Republican and Democratic administrations. Most profound was the halting of conversation between political appointees and career lawyers that had guided law enforcement in the division and elsewhere in the department—"government by discussion," former Attorney General Edward Levi called it. In this administration, political appointees no longer want career attorneys even to make recommendations about how a case should proceed, for fear that ignoring their suggestions could make the politicos look bad.
The dismissal of the U.S. attorneys is a more visible example of the same purgelike practices. 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.
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.
Were Iglesias and McKay fired for not indicting enough Democrats? Lam for threatening to bring down too many Republicans? We don't know for sure. But the lesson of some of the firings could be: Woe to the U.S. attorney who didn't enforce the law as political hacks in the Bush administration dictated. Political directives like this flout the tradition of nonpolitical law enforcement that's essential because of the awesome power of prosecutors. The uproar over the firings seems to have taken the administration by surprise, and it's possible they resulted from incompetence as much as cunning. But an administration's use of law enforcement for political ends has rarely seemed more brazen.
Lincoln Caplan writes about the Supreme Court for the New York Times editorial board and is the author of The Tenth Justice: The Solicitor General and the Rule of Law.
Photograph of former U.S. attorneys by Chip Somodevilla/Getty Images.