The purge of U.S. attorneys (partially) explained.

The law, lawyers, and the court.
March 2 2007 6:08 PM

Royal Flush

The purge of U.S. attorneys (partially) explained.

Deputy Attorney General Paul McNulty. Click image to expand.
Deputy Attorney General Paul McNulty 

The more we learn about the purge of at least eight U.S. attorneys around the country, the bigger the mystery becomes. Not so much the "how" of it all: It's clear that GOP staffers slipped unnoticed language into the about-to-be-reauthorized Patriot Act to allow the Justice Department to fiddle with the nation's U.S. attorneys. The new language doesn't expand the attorney general's authority to fire these folks—they have always served at the president's pleasure and could always be sacked at will. But the new provision does ensure that the attorney general appoints their new "interim" replacements—and that the replacements don't have to be confirmed after 120 days by the Senate, as they used to be. Nor do federal judges get to name new U.S. attorneys should the Senate fail to confirm interim candidates, as used to happen. In short, both the Senate and the judges are out.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

So the "how" of it is pretty straightforward: The DOJ figured out a way to slip party loyalists into high office without having to answer for it, and they proceeded to do so with gusto, canning eight apparently competent U.S. attorneys—six in a single day!—and replacing them with folks more willing to dance to the White House pipes. Certainly the scandal has its delicious aspects: All of those ousted evidently had positive job reviews, despite Deputy Attorney General Paul McNulty's testimony that they were fired for "performance" reasons. Carol Lam was let go in San Diego, allegedly because she was successfully bringing down Republicans, including former Rep. Randy "Duke" Cunningham, in a bribery scandal. David Iglesias of New Mexico claims he was fired after he refused to succumb to pressure from two GOP members of Congress to rush the indictments in a Democratic political corruption case, before last November's election.

The cherry on top was replacement of Arkansas' H.E. "Bud" Cummins with Tim Griffin, whose chief qualification as the state's new federal prosecutor is his loyal service as opposition research director for Karl Rove and the RNC. Even Deputy Attorney General McNulty has conceded that Griffin got Cummins' old job, "not connected to … the performance of the incumbent, but more related to the opportunity to provide a fresh start with a new person in that position."

This kind of purge is legal but unprecedented. A recent report by the nonpartisan Congressional Research Service revealed that since 1981, no more than three U.S. attorneys had ever been forced out under similar circumstances. And now we have six in a day? What's going on?

What sort of colossal error in judgment led the DOJ to can a bunch of perfectly loyal and capable prosecutors, name permanent "interim" replacements under a sleazy legal loophole, then publicly impugn those who'd departed with the claim that they'd been fired for "performance-related" reasons? Did they really think nobody would notice? That nobody would care? Does some incredibly cunning long-term objective justify the short-term fallout? Or was this simply a case of bumbling incompetence?

A little digging on the subject leads me to conclude that it's a bit of both.

Last weekend, the New York Times' Adam Cohen made a start at analyzing why all this happened. He suggests that these were rational replacements motivated by cynical administration politics. Cohen offers three reasons for the purge:

1) Cronyism (Carol Lam was let go for hurting the GOP; her replacement is a card-carrying member of the Federalist Society *.)

2) Candidate grooming (The Bush administration is grooming Republican lawyers for higher office with sweet stepping-stone jobs.)

3) Presidential politics (an opposition researcher gets a prosecutor's gig in Arkansas right before Hillary Clinton's run for president. Sneaky.)

To Cohen's list of Creepy Bush Administration Endgames I'd add a few more:

1) It's a very short hop from a U.S. attorney gig to the federal bench. I wouldn't be surprised if Rove and Co.—who truly live to makeover the federal bench—were willing to suffer a little short-term political embarrassment in order to better situate some loyalists for future judgeships.

2) This administration really does see loyalty to the White House as inseparable from loyalty to the law. Historically, the frequent disputes between the DOJ and renegade U.S. attorneys were resolved through compromise. This president doesn't compromise with insubordinate subordinates. He fires them.

3) The conspiracy theorist in me cannot leave unmentioned the possibility that someone at the Bush White House—let's call him "David Addington"—does nothing all day but mark up legislation to diminish congressional and judicial oversight while increasing executive branch authority. Someone at the White House figured out that with a little Wite-Out and the distractions of the Christmas season, the president could remove both the federal judiciary and the Congress from the U.S. attorney appointments process.

Mark Follman, writing this week in Salon, posits that having lost control of Congress in November, the White House is clinging even more desperately to the few levers of power it still holds. Regardless of the specific rationale, it seems to be a truism among editorial writers that the firing of independent-minded federal prosecutors was part of a deliberate and cunning power grab by the White House.

But there's one other theory worth putting out there—one I have heard from folks on the Hill who are following this battle quite closely. This was merely a monumental screw-up. The DOJ never expected these firings to turn into a scandal. Indeed, many folks there still can't quite figure out what they have done wrong.

A few data points:

1) The DOJ is currently staffed by its C team, all of its best members having left long ago for better-paid jobs in the private sector. And C teams, particularly C teams with little political experience, make mistakes.

2) This scandal may not have gone anywhere had McNulty not testified that the U.S. attorneys were canned—with the exception of Cummins—for subpar "performance." This misstep forced Lam, Iglesias, and other very loyal Republicans to come forward and defend themselves. Had McNulty not publicly questioned their effectiveness, most would probably have packed up and left without a word.

3) The White House is unaccustomed to real oversight. It's been virtually bulletproof for so long that it has almost forgotten how to account for its blatant ideological acts of jiggery-pokery. It wasn't until control of Congress changed over in November that anyone even began to look askance at executive overreaching. As a result, this administration simply misjudged the amount of likely blowback from these firings.

The U.S. attorney purge probably exploded into a scandal as a result of a perfect storm that the White House never anticipated: Players at the highest levels were making strategic, ideological decisions to consolidate executive power and reward party loyalists while folks on the ground at the Justice Department bungled the firings with inflammatory comments and false ("performance-related") statements. Incumbent U.S. attorneys surprised the White House by punching back, just as a Congress under new Democratic control decided to exercise meaningful oversight.

Perhaps the most important lesson to be drawn from the purge isn't that the Bush administration puts ideology above the rule of law. That isn't exactly news. The real point may be that between inexperienced fumblers at Justice, energized Democrats in Congress, and a public that seems finally to have awoken from its slumber, it's just become harder for the administration to get away with it.

Correction, March 3: The article mistakenly suggested that Lam's replacement was a member of the Federalist Party. (Return to the corrected sentence.)

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