U.S. Attorney Redux

As the U.S. Attorney scandal deepens, I've been asked if I stand by my previous post on the subject. The answer is yes, but perhaps it's time for some more detail.

As I said previously, the position of U.S. Attorney is a political position. U.S. Attorneys get their jobs by being well-connected (in addition to having the necessary legal talent), and if after a few years in office they get pushed aside to make room for someone who's even better connected, that's just life in the world of politics. Not the best management practice, perhaps; not something that's likely to inspire people to want to work for you; but not a scandal either.

It's also legitimate for the President to remove a U.S. Attorney who isn't on board with the administration's enforcement priorities. The notion that each U.S. Attorney should have full autonomy over prosecution policy in his or her district is untenable. Enforcement resources are scarce and it's up to the President and the Attorney General to set national priorities. Some administrations want to invest heavily in going after pornographers and drug traffickers; others want to focus on corporate malfeasance and polluters. The President can't effectively implement his law enforcement priorities if 90 different U.S. Attorneys each have their own right to set priorities in individual districts. So removing a U.S. Attorney who refuses to carry out the President's legitimate enforcement priority decisions is appropriate.

But the key word here is legitimate. The President can have legitimate enforcement priorities, but he, like an individual prosecutor, shouldn't be abusing his authority. U.S. Attorneys should be making individual prosecutorial decisions based on the evidence in each case, not on the basis of which political party the potential defendant supports. The President can decide that enforcement resources should be directed to stamping out voter fraud, but telling a U.S. Attorney to make trouble for Democratic candidates whether they are engaging in fraud or not would cross the line. It would be the duty of a U.S. Attorney to resist such a request, and firing a U.S. Attorney for such resistance would be a scandal.

So it all depends on what was really going on. Evidence that U.S. Attorneys were pressured in a political, partisan way (as by phone calls from politicians, to ask if they were going to bring charges against Democrats prior to the 2004 elections) is disturbing.

And of course, lying about why U.S. Attorneys were fired is wrong too. The administration keeps changing its story about what happened; it should gather the facts and then tell the truth.

My old classmate Jack Goldsmith has a good article on the whole thing in Slate with Dahlia Lithwick. Adam Liptak's piece in the Times is good too.