US Attorneys: It's Not The Politics But The Lack Of Limits
THE ASSUMPTION that the appointment and character of US Attorneys are traditionally free of politics - like, say,
federal judges - is a nice one but can find little encouragement in American history.
In fact, both US Attorney and federal judges are patronage appointments. This patronage power is limited by a number of
factors such as, in the case of judges, a lifetime appointment, the need for Senate confirmation and the ratings of the
American Bar Association.
For U.S. attorneys the control has traditionally been confirmation by the Senate, a limited term (four years but
typically the life of an administration), and the need for approval by any US Senator of the president's party in the
state where the US Attorney will be assigned.
Neither of these systems has worked as well as the establishment would have us believe, sometimes for reasons unrelated
to national politics. For example, one study found that the cities in which US Attorney enforced drugs laws the least
were Las Vegas and Nashville. Obviously, local politics plays a role.
In the case of the Bush firings, the problem was not that the decisions were political but that they were made in the
middle of a term after confirmation protection was surreptitiously excised by the Patriot Act.
Part of the reason the US Attorney system has worked as well as it has is because once power has been assigned, the
exercise of that power has been largely devolved to the US Attorney's office with a few notable exceptions in both
Republican and Democratic administrations. As with other matters of patronage, a partial cure - the best that can be
hoped for - is not in grand principles but in the checks that are applied. What the Bush regime did was to dump these
checks with predicable results.
Much as it offends purists, one partial solution is to revive the power that US Senators once had over the US Attorney
appointments. Such patronage power at the very least spreads the potential for evil around rather than, as Bush would
prefer, leaving it all up to him.
Another, more radical approach, would be the suggestion that Ernie Fitzgerald and I made some time back: the election of
the U.S. Attorney General - and than granting the AG some role in the naming of U.S. Attorneys. Strange as this may
seem, the election of a reform-minded local district attorney has been one of the most effective approaches in dealing
with urban corruption and might well have the same effect on the national level. Instead of having one highly ambitious
politician in the White House you would have two such politicians in Washington, with one always worried about what the
other would find looking through the files
ELECTING AN ATTORNEY GENERAL
LA TIMES - Senators have traditionally played the key role in selecting U.S. attorneys for their states, especially
when their party controls the White House. The practice is much the same for federal district judges. Senators recommend
candidates to serve as the U.S. attorney or a judge, and the president usually accepts those suggestions.
Upon taking office, most presidents choose a new slate of U.S. attorneys. However, U.S. attorneys may stay on for a time
if they are in the midst of a major investigation or prosecution. . .
Most lawyers draw a sharp distinction between policies and partisan politics. The White House or the Justice Department
could tell U.S. attorneys to bring more prosecutions for drugs, pornography or immigration violations without raising
eyebrows. However, they say it would be disturbing for a Republican president or his advisors to press a U.S. attorney
to bring charges against a Democratic official, or vice versa.
TRI-CITY HERALD, WA - Replacements for the ousted attorneys won't have to face potentially grueling confirmation
hearings before the Senate unless the Bush administration agrees to it. Count it as another unintended consequence of
the war on terror.
As Taylor reported, Democrats now in control of the Senate have only recently discovered that "Attorney General Alberto
Gonzales could use a little-noticed change in the Patriot Act to fill vacancies with interim U.S. attorneys for
indefinite terms without Senate approval."
HOW IT USED TO WORK
NY TIMES, FEB 10 1988 - Senator Alfonse M. D'Amato said today that he had given the United States Attorney in Manhattan,
Rudolph W. Giuliani, the right to approve his own successor. Senator Alfonse M. D'Amato said today that he had given the
United States Attorney in Manhattan, Rudolph W. Giuliani, the right to approve his own successor.
Mr. D'Amato's statement contradicted Mr. Giuliani, who said Monday that he had decided not to resign and run against
Senator Daniel Patrick Moynihan this year because he wanted to assure "an orderly transition" and that Mr. D'Amato, a
New York Republican, had virtually excluded him from the selection of a successor. If he left office now, Mr. Giuliani
said, his departure might "adversely affect some very sensitive matters still in progress."
Mr. D'Amato, meanwhile, has contended that it was his prerogative to nominate a new United States Attorney, and he
complained to friends about pressure from Mr. Giuliani, saying it had put him in an "untenable position.". . .
By tradition in New York, the Senator from the President's party nominates a United States Attorney following
recommendations from a screening committee.
MR LINCOLN AND FRIENDS - Henry C. Whitney recalled being in Washington in the summer of 1861 with several other
Illinois politicians seeking appointments. "I merely said to Lincoln one day - Everything is drifting into the war & I guess you will have to put me in the army.' He said 'I'm making Generals now & in a few days I will be making Quartermasters & I'll then fix you.' - That was all that was ever said between Lincoln & me or anyone else on that subject.
[Robert L.]Wilson went to Lincoln and frankly said 'Lincoln I have come on to secure the office of Paymaster in the
Army: you know it's in the line of business as Clerk and my son is excellent at accounts & I wish to make him my clerk.' - Lincoln made no reply but cast his eyes down to the floor as if in the greatest mental
distress & was silent for about 2 minutes. Wilson told me he was almost on the point of leaving the room & going home: but Lincoln turned the conversation on other matters & made no reply at all."
On August 6, Whitney learned from the New York Herald that he and several others from Illinois had been appointed. He
wrote Herndon: "Think of this. Two of the appointees were utterly worthless & I could just as well have been given & satisfied with a lesser place."
Journalist Henry Villard reported that in early March 1861, Mr. Lincoln talked about the increased patronage pressures
he experienced when he arrived in Washington: "Yes, it was bad enough in Springfield, but it was child's play compared
with this tussle here. I hardly have a chance to eat or sleep. I am fair game for everybody of that hungry lot."
Historian David Donald wrote that "a great many of Lincoln's friends looked on his election as an opening of the door to
the public treasury. Surely a President of the United States would reward his old and faithful Illinois friends. Lincoln
did appoint many, but the federal patronage was not large enough to give everyone a job. There was considerable wailing
and gnashing of teeth among the disappointed."
There were many conflicts - as suggested by difficulties over the appointment of a Treasury Department assessor in the
12th Congressional District of Illinois. Philip B. Fouke wrote President Abraham Lincoln, October 26, 1862 to protest
the dismissal of Frederick Grammar from the job: "For five days I have tried in vain to obtain an interview with you
upon the subject. Mr. Grammer was appointed at my suggestion, I felt grateful to you, and thanked you cordially, on
behalf of the gentlemen, who urged me to recommend him." The new assessor, John Scheil, was a relative by marriage of
former Illinois Lieutenant Governor Gustave Koerner. . .
FROM THE PROGRESSIVE REVIEW
EDITED BY SAM SMITH
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