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.
To be sure, the past practices that embodied this tradition weren't codified. Nor are they legally binding. They're the kind of custom recorded by anthropologists more than legal scholars, and they include many exceptions. Yet they have long governed how federal law-enforcement decisions were made. And they have been sturdy enough to keep in check the president's authority to remove lawyers at will for a generation before the current administration.
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.
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.
Why should U.S. attorneys be insulated from presidential politics? White quoted from a 1940 speech to U.S. attorneys by Robert Jackson, then attorney general and later Supreme Court justice: "The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous." The power of law enforcement to tarnish reputations, end people's liberty, and ruin lives, in other words, is so great that it has to be exercised judiciously and, above all, nonpolitically. That's one basic element of the rule of law. U.S. attorneys and other Justice Department lawyers have lived by the declaration of evenhandedness carved into the rotunda of the attorney general's office: "The United States wins its point whenever justice is done its citizens in the courts."
A previous low point for the Justice Department came almost two decades ago, during the Reagan years, when the switchboard sometimes answered, "Ninth Street Disillusionment Center" and the graffiti "Resign," "Leave," and "Sleaze" were scrawled on walls near the office of Attorney General Ed Meese. In 1988, six prominent Republicans resigned. Led by William Weld, then-head of DoJ's criminal division and later the governor of Massachusetts, they said they believed that the Justice Department was too impaired to enforce the law. These political appointees left behind a dispirited bureaucracy. But Meese didn't really tamper with the ranks of career attorneys, who don't normally come and go with the president, or with the department's basic apparatus for enforcement, including the U.S. attorneys' offices.
The early Clinton years brought woes of their own, with two tanked nominees for attorney general before the confirmation of Janet Reno, and the widespread perception that friendship and political loyalty were high on the list of qualifications for senior appointment. But the departure of Associate Attorney General Webb Hubbell, Hillary Clinton's former law partner and the department's crony-in-chief, and the arrival of the Whitewater scandal loosened the department's political leash. And again, the troubles in the senior political ranks didn't infect the U.S. attorneys' offices or the career lawyers.
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.