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The real mistake made in the U.S. attorney firings

By Rachel Alexander
web posted March 26, 2007

Much has been made about the Bush administration's firing of eight U.S. Attorneys last year, and it appears inevitable that Attorney General Alberto Gonzales will resign this week. The complaint is that the eight U.S. Attorneys were fired for "political reasons," not "poor performance," the reason given initially by the Bush administration. Democrats contend that the administration retaliated against the U.S. Attorneys for their failure to prosecute corruption by Democrats and certain other crimes. The problem with these accusations is that it is not against the law for the president to remove appointed U.S. attorneys from their positions - for political reasons or poor performance or both. Political appointees are comparable to at-will employees; they can be removed for almost any reason unless specifically prohibited by law; an example of a prohibited reason would be on the basis of race. U.S. attorneys serve entirely at the pleasure of the president. Under Bush, the Patriot Act was amended to eliminate any requirement that the Senate approve U.S. Attorney appointments.

Democrats have turned the firings into a scandal by focusing on the distinction between the words "poor performance" and "political reasons." It's a red herring argument, though, because not only are the two reasons both acceptable, they're not mutually exclusive. Investigating Republicans for crimes while allowing allegations of crimes by Democrats to sit without serious investigation is both partisan and incompetent. In addition, sources say there are specific examples of incompetence by these attorneys that the White House is currently prohibited from releasing at this time.

Several of the fired U.S. Attorneys assert that they were ranked top performers by the Department of Justice in 2005. However, at that time it was not known yet where they were in the investigations of some of the fraud and corruption cases that had been brought to their attention. Just because eight U.S. Attorneys received good performance reviews one year doesn't mean those eight will necessarily receive good reviews the following year -for eight out of 100 or so attorneys across the country to receive poor reviews is not an odd occurrence.

The White House has received harsh criticism for replacing some of the U.S. Attorneys with friends and allies. Historically, presidents have always chosen their friends and others with similar political beliefs as political appointees. John F. Kennedy appointed his brother Robert - who was by no means qualified - as Attorney General. Bill Clinton was notorious for appointing his friends and FOB's (Democratic contributors he paid back even acquired their own acronym, meaning "Friends of Bill"), and in fact went a step further when he fired the White House travel office staff and replaced them with friends of Hillary. The travel office positions were administrative positions, not even policy positions involving discretion. No high-level Clinton appointees were forced to resign over it.

Clinton fired all 93 U.S. attorneys immediately after taking office. Critics contend that this was somehow different, since it occurred at the beginning of Clinton's presidential administration. However, there is no explanation offered or legal difference. They were all appointees from a prior administration, mainly Reagan appointees. Unlike Clinton, George W. Bush did not fire all of the existing U.S. attorneys when he took office, he left a few in their positions. So in a way it makes sense that he eliminated eight a bit later into his second term. Just because President Clinton didn't do it the way Bush did it doesn't make it wrong. President Clinton doesn't set the standards of behavior for presidents.

A Washington Post article claimed that "legal experts and former prosecutors say the firing of a large number of prosecutors in the middle of a term appears to be unprecedented and threatens the independence of prosecutors." This isn't accurate, because appointed U.S. Attorneys are expected to follow the lead of the administration, and other presidents have fired U.S. Attorneys midterm. According to reports, Karl Rove and Harriet Miers wanted to fire all of the U.S. attorneys at the beginning of Bush's second term. Ironically, firing all of them at once at the beginning of his second term would have been more acceptable by the Democrats and their friends in the media than firing eight U.S. Attorneys two years into the term.

Presidents cannot be prohibited from appointing people they know, because by the time a presidential candidate is elected, he knows thousands of people with political backgrounds; he's able to spot some that would make good leaders and for the rest must rely on the advice of advisors who know them. It would be foolish to try and prohibit presidents from hiring anyone they know or have any connection with, since that could disqualify half of the potential candidates. Presidents know or have connections to more people around the country than practically anyone.

It's no secret that Republican presidents primarily appoint Republicans as U.S. Attorneys, and Democratic Presidents primarily appoint Democrats as U.S. Attorneys. To pretend that these positions aren't partisan is nothing more than smoke and mirrors. Appointed U.S. Attorneys aren't given lifelong tenure like Supreme Court justices. If it would be better policy to appoint U.S. Attorneys to lifelong terms, then the law needs to be changed. Democrats can't just ignore the law for years until a time when it suits their purposes, and then indulge in rhetoric making up things in the law that aren't there. Under current law, U.S. Attorneys can't be "independent" since they answer to the presidential administration they serve under, which changes every four to eight years.

Republicans should stop claiming that political appointments are made solely on the "qualifications" of the candidates, and denying that any of the selection process is political. It is this denial that gets them into hot water. Democrats are exploiting this mincing of words in order to distract focus from the actual firing to the discrepancy in the explanation instead, in order to create a scandal. Just like they did in the Valerie Plame case. Republicans fell into the same trap again. Too much spin can go over the line and backfire; at some point spin reaches the point where it can be successfully attacked by partisans as a lie. Democrats have taken the lead at phrasing the debate, turning the public's focus to the discrepancy in the explanation for the firings. This allows them to ignore the larger problem which is appointed U.S. Attorneys following their own (left wing in this case) agenda.

If U.S. Attorneys are supposed to be "independent," as the mainstream media is clamoring, then why have appointments at all? They could be elected instead, or appointed for life like U.S. Supreme Court justices. The Senate is looking at changes to the law now that would remove sole discretion for appointments from the Executive branch. But this doesn't change the fact that firing the eight U.S. attorneys did not violate the law last year.

The U.S. District Attorney has some discretion over which crimes are prosecuted; more resources can always be spent in certain areas over others. Several, if not all, of these attorneys deliberately ignored or refused to prosecute certain crimes, including drug crimes and allegations of political corruption by Democrats. However, these same attorneys had no problem investigating political corruption by Republicans.

Here in the Southwest, U.S. Attorneys were removed from office for using their offices to promote their own political agendas. Paul Charlton, the U.S. Attorney for the District of Arizona, avoided prosecuting illegal immigration crimes, even though Arizona voters overwhelmingly approved four anti-illegal measures last fall. He also refused to prosecute certain drug crimes and avoided seeking the death penalty. The U.S. Attorney in San Diego avoided prosecuting human smugglers, or "coyotes."

There are complaints that high-level Republican officials put "heavy-handed political pressure" on some of the U.S. Attorneys, asking whether charges had been brought yet against certain Democrats accused of crimes. However, according to former U.S. Attorney Joseph DiGenova, this was normal, Congressmen called him "all the time" asking about cases. U.S. Attorney David C. Iglesias from New Mexico claims that Senator Pete Domenici called him asking if he was going to file indictments for corruption against Democrats involved in a courthouse construction project. Iglesias told the Senator no. If Iglesias thought it was improper to discuss possible indictments, then he shouldn't have answered.

Iglesias was asked in 2004 by Republican officials to investigate voter fraud. Young teenage boys had received voter registration cards in the mail, indicating someone had forged their signatures and birthdates. Iglesias failed to bring criminal charges against the liberal group responsible, Association of Community Associations for Reform Now (ACORN). ACORN has a reputation as the group most responsible today for voter fraud. When Iglesias found a woman working for ACORN who had falsified the applications, he said that she wasn't prosecutable because she had only done it for money, not political reasons. That isn't a valid excuse, and provides an easy way for ACORN to get around voter fraud laws by claiming that its employees were not politically motivated.

Many of the fired U.S. Attorneys claim that they did not have enough resources to prosecute "smaller" crimes such as voter fraud. U.S. Attorney John McKay of Seattle claims he was also ousted for failure to prosecute ACORN for voter fraud. However, this is not a legitimate excuse, because the American people believe voter fraud is important and want it prosecuted. In Arizona, voters were so concerned they passed Proposition 200 in 2004, which requires proof of citizenship in order to register to vote, and proper identification at the polls.

The Republicans who have been the most vocal criticizing the firings are Senators John Sununu, Gordon Smith, and Arlen Specter. It is no coincidence that these Senators are also liberal Republicans - something they have in common with the fired U.S. Attorneys. Smith received scores of 58 and 72 from the American Conservative Union in 2005 and 2006, Specter received 63 and 43, and Sununu received 83 and 88.It's not surprising they think Republican political appointees should be able to follow their own left-leaning agenda against the president they serve under.

The White House needs to own up to the political dimension underlying its decisions to fire the U.S. Attorneys. U.S. Attorneys should be held accountable to the administration, providing checks and balances against the liberal judiciary. The liberal judiciary is out of control and out of touch. The Democrats' proposed bill would transfer discretion over U.S. Attorney appointments to the federal courts. This would be a grave mistake, since the U.S. Attorneys' Offices would become bastions of liberal ideology, targeting Republicans, refusing to seek the death penalty, enforce immigration laws or certain drug laws. ESR

Rachel Alexander is the founder of the wildly popular Intellectual Conservative.

 

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