Centerfield

As I understand it, it's just the lead person in each office who is a political appointee; the rest are Civil Service. Not too unlike having the Attorney General be a political appointee, but the folks who do the work at Justice being Civil Service. It's a way to get priorities aligned for each administration.

So I'm thinking that rather than change that, what might be more useful is to establish some way for the rest of the attorneys to have some way to raise a red flag when political (as opposed to prioritization) directives are coming at them. To Congress, of course, but also some effective way to get the word out when we have a situation like the past 6 years.

Posted by: wj at March 19, 2007 10:40 AM

Dahlia Lithwick has this piece explaining why not.

Posted by: Simon at March 19, 2007 12:31 PM

U.S. Attorneys should be appointed by the Presdient and fired by the President. Appointment is the ultimate term limit, except for the Supreme Court. Could you imagine the power these people would have if they were appointed for life.

A decade-and-a-half ago the hot topic issue was "term limits" for Congress. What about term limits for federal bureaucrats? That is where the real power exist. Everyone in government should serve no more than 10 years, no exception. Bush politicized the role of US Attorneys, which is very dangerous - political hachett people!

Danny l. McDaniel
Lafayette, Indiana

Posted by: DannyLMcDaniel at March 19, 2007 02:38 PM

Of course they should not be "professionalized." One, look at the CIA right now. Full of "professionals" all with their own axes to grind... but it's all done on the secret, so they seem like unbiased non-partisans.

Prosecution is inherently a political job. Prosecutors are intended to in part reflect the current public mood toward crime. Are we more worried about violent crime or economic crime? Are we feeling particularly tough on crime, or do we want to try some new approaches? In each of our own little communities, what priorities do we want limited resources focused upon?

Those are all political issues, which must and should be answered by people involved with politics. It's messy, but functional, and far better than any alternative, to my mind.

It's judges which need to be utterly non-biased. Prosecutors, they're supposed to be partly political. Now, that doesn't mean that they should go on partisan witch-hunts, and so far there's no real evidence that the White House and the DoJ made these firings other than to promote the president's new policies (such as being more aggressive on immigration violations) which the replaced prosecutors weren't always supporting.

Even if the President's team decided to replace these prosecutors for purely partisan reasons because they had lost support of local officials, there's nothing wrong with that. So long as they don't intentionally prosecute people they know to be innocent, or intentionally ignore people they know to be guilty, then the President can appropriately fire them just because he doesn't like them very much.

Posted by: Pat at March 19, 2007 03:05 PM

I mean, for goodness sake, look at the abomination which used to be the independent counsel law. It was so bad that both parties agreed to end it.

Posted by: Pat at March 19, 2007 03:06 PM

Ohhh, Pat, Pat, my friend, you haven't seen the emails, have you? Scary stuff in there. Even the WH now says they "hope" Gonzales survives. I don't know as much about politics as Tully, but when the WH says they "hope you survive", it usually means you won't.

Want to speculate on who's going to replace Gonzales?

Posted by: Blue Jean at March 19, 2007 11:34 PM

I do understand that even professionalized US Attorneys would have a political bent of some sort, just less likely to prosecute virtually all Republicans or virtually all Democrats.

Simon, how much did you trust the Clinton DoJ and its US Attorneys?

Mostly, I'm interested in questions of competence. As I said, the current qualification is working in the victor's campaign. Is that enough?

How much time do US Attorneys spend coming up to speed on investigations and practices? How many US Attorneys let the assistants do all the work except to interfere occasionally?

Note, I'm not suggesting special insulation for attorneys, that Presidents shouldn't be able to fire attorneys, or life terms, just that the relationship be like with most other senior govt employees.

Posted by: Jon Kay at March 20, 2007 12:32 AM

Jean,
I have seen the emails - could you elaborate on what we're looking for in them that's persuasive to the point at hand?

Speculation on who's going to replace Gonzales: Larry Thompson is my guess.

Jon,
If I didn't trust the Clinton DoJ and its US Attorneys, that's a great reason why I should vote against them. But I don't see how it's an argument -- at all, let alone a persuasive one -- for a major change (and very likely an unconstitutional one) in the way the executive branch is structured.

Posted by: Simon at March 20, 2007 08:25 AM

Also, on the issue of competence - if that's your major concern, Jon, couldn't that be addressed within the existing framework? The Senate could insist on stricter qualifications for candidates, and telegraph it'll reject obvious cronies.

Posted by: Simon at March 20, 2007 08:31 AM

Jon, do you have any real evidence to support your suggestion that the DOJ under President Bush has prosecuted "virtually all" Democrats? Even the idiot professors who did the "study" of "political profiling" say that data about investigations at the state and national level show about a 50-50 split.

All of the Assistant U.S. Attorneys are career government bureaucrats... civil service employees. And having worked with some of them, I can tell you that that causes real problems of competence itself. For actual corruption to occur, the one political appointee in the office would have to give some pretty specific orders to these civil servants, and then they'd all have to carry it out without filing several memos to file and letters to superiors (the career civil service lawyers in the Justice Dept.) to cover their own asses.

Prosecution is not a very pro-active game. In fact, it's extremely reactive. Somebody comes to you with a report of a crime, you investigate it. That's the process in the vast majority of cases. Yes, some bias could arise by not devoting many resources to some particular investigation, and more to others, but that's about it. And, as Tully keeps pointing out, the worst that happens even if every outlandish "political profiling" allegation were true (which they most certainly are not), then only one side's bad guys go to jail, and the bad guys on the other side skate until the next administration. That's it. No innocents going to jail, nothing like that.

As for the Clinton-era prosecutors? Yeah, I had some concerns about them. And I occasionally would raise them... but as part of putting political pressure on them and their bosses. I never once wanted to change the system, or thought that any "bias" was evidence of a deeply flawed system.

Posted by: PatHMV at March 20, 2007 10:02 AM

Also, on the issue of competence - if that's your major concern, Jon, couldn't that be addressed within the existing framework? The Senate could insist on stricter qualifications for candidates, and telegraph it'll reject obvious cronies.

That'd work for me.

Posted by: Jon Kay at March 20, 2007 03:52 PM

The pain comes under the old rules the Senate is trying to reinstate. If the Senate simply sits on a nominee for 120 days, instead of rejecting them outright, then an appointed judge gets to install a new US Attorney.

Uh uh. They should set the rules so that if the Senate fails to reject, the nominee is considered confirmed. Lend a little speed to the process, and let auto-rejecters pay a political price.

Posted by: Tully at March 20, 2007 05:58 PM

Jon, do you have any real evidence to support your suggestion that the DOJ under President Bush has prosecuted "virtually all" Democrats?

No evidence at all, since I made no such suggestion.

Posted by: Jon Kay at March 20, 2007 06:34 PM

I do understand that even professionalized US Attorneys would have a political bent of some sort, just less likely to prosecute virtually all Republicans or virtually all Democrats.

Sounds an awful lot like a blanket suggestion to me. Examples of it actually occuring?

Posted by: Tully at March 20, 2007 08:10 PM

...but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments... --USC Art II Sec 2

The way I read that, an argument can be made that the statute is already defective. The power to appoint USA's currently resides with the Attorney General (not the President) and the statute automatically "splits" the appointment power off to the judiciary if the Senate fails to confirm or reject within the 120 days. The statute reads "or," not "and," and as the statute stands the power is (woud be--the statute pre-existed from 1966 before modified under the Patriot Act) divided by law. But the Constitution doesn't provide for splitting the authority, just lists the three places where it can reside.

None of those three places provides for "professionalizing" the office. It's either the power of the President, the AGUS, or the courts. And in ALL cases, the President can fire ALL officers in federal service at will. (And can also make reserve appointments to any vacancies during a recess, which is supposed to be the "pressure" on the Senate to not leave vacancies.)

So what the Senate wants is the power to shift the power of appointment from the department head (AGUS) to the court of that district by simply failing to confirm or reject. Since the power to dismiss is already settled law (Myers v. US) in a contentious political atmosphere this could result in the appointees being continually "timed out," the office filled by the court, then the court appointee being fired. Lather, rinse, repeat.

Posted by: Tully at March 21, 2007 09:54 AM

Uh uh. They should set the rules so that if the Senate fails to reject, the nominee is considered confirmed. Lend a little speed to the process, and let auto-rejecters pay a political price.

That the Senate has discretion to set such a rule - advice and consent is given by default unless acted on to the contrary within X days - is one of the points I made a coupleof years baclk when we were talking about the nuclear option. The Constitution doesn't, in my view, regular the internal procedures for giving advice and consent any more than it regulates the internal procedures for considering impeachments, see Nixon v. United States, 506 U.S. 224 (1993). That said, I'm not sure it's a good idea to have such a default rule. Posted by: Simon at March 21, 2007 12:46 PM

Oh, the US Const sez "as they think proper," I'm simply arguing for "proper" not being "any way we can manipulate the process while dodging all responsibility." BY use of a senatorial pocket veto they can devolve the choice to the judiciary.

As is now they can choose by not choosing, and the only recourse is to keep firing, appointing, and submitting until someone flinches. I call that weaseldom.

Posted by: Tully at March 21, 2007 03:10 PM