Trust-busting the prosecutors

US attorneys are political appointees, but they can lose public trust if they appear to favor one party.

from the March 23, 2007 edition

A winter snow squall over the firing of eight US attorneys has turned into a spring blizzard. A constitutional crisis is brewing. The attorney general is being buried by criticism. In these white-out conditions, it's helpful to focus on what started it all.

This clash began when questions were asked about whether the US prosecutors were fired for cause, as the administration says, or for political gain, as Democrats and some of the prosecutors suspect.

Whether the suspicions are true is an important question. They relate to fair application of law. Fairness breeds trust – without which a legal system can't operate in a democracy.

This week, President Bush emphatically denied politics as the motivation in the firings. But he also reminded people that US prosecutors – the attorneys who go after those who break federal laws – are political appointees who serve at the pleasure of the president.

It may strike many as odd that a US prosecutor is a political appointee. At the state level, voters mostly elect prosecutors. But voters still have a say at the federal level – it's just very indirect.

Federal crime is a big, wide world, and voters select their enforcement priorities in electing a president. A president may decide, for instance, to focus on civil rights enforcement (historically a Democratic issue) or, as with this president, immigration and drug laws. Under Mr. Bush, immigration prosecutions more than doubled during his first term, soaring above those of the Clinton era. And Bush put less emphasis on white-collar crime during that time, and those prosecutions declined compared with those in the Clinton years.

While prosecutors receive their job through the political process, they're expected to be "apolitical" when investigating elected politicians or elections. It's that trust factor again. Grand juries help keep them in check, but so does their Senate confirmation. Rightly, the Senate voted this week to fully restore that oversight, which had been weakened by the USA Patriot Act.

Thousands of internal documents released by the Justice Department haven't fully cleared up the motivation behind the firings. Cause seems well established, for instance, in the case of the US attorney in San Diego, who didn't prosecute as many illegal alien smuggling or firearms cases as the administration wanted.

On the other hand, the fired prosecutor in New Mexico was praised in the documents. It's troubling that he was put on the termination list after complaints from two GOP lawmakers who phoned him before last year's midterm elections about his corruption investigation of Democrats. The prosecutor interpreted the calls as pressure to bring charges. Some of the fired prosecutors were also investigating corruption by GOP officials.

Technically, the president is correct that he can fire whomever he wants, and presidents routinely replace the previous regime's attorneys. But they must be mindful of the appearance of excessive politicization. Some of the appearances here – including inaccurate testimony by Justice officials before Congress – will erode trust in federal law enforcement if they are not cleared up. Congress and the administration must find a way to remove these doubts.