Professor Charles Fried is a former solicitor general in the Reagan administration and a former justice on the Massachusetts Supreme Judicial Court. Professor Philip Heymann is a former deputy attorney general in the Clinton administration. Here, these two experts in constitutional and criminal law respond to the following question:
Some say the recent dismissal of eight U.S. attorneys was mostly a public relations blunder, and that these lawyers were political appointees who served at the pleasure of the president. Others argue that pressuring U.S. attorneys to prosecute cases for partisan political reasons – and then firing them if they don’t – is highly unethical and improper. Where do you stand?
Professor Charles Fried
United States attorneys are not judicial officers, nor are they civil service employees. They are presidential appointees, named by the president and confirmed by the Senate, as are cabinet officers, the attorney general and the assistant attorneys general. The president appoints them to carry out his policies. If the appointee does not agree with those policies he should state his disagreement to his superiors (U.S. attorneys do have superiors) and if the administration insists on policies that the appointee cannot in conscience carry out, he should resign.
This administration may have policies about seeking the death penalty or charging crimes at the highest available level. These policies may be mistaken or wrong-headed or even cruel, but it is not up to the appointee to decide which she will or will not carry out. This administration is concerned about voter fraud and believes in vigorous investigation and prosecution of voter fraud cases; other administrations may be concerned more about voter access and the intimidation some believe is a concomitant of voter fraud investigations. Those are political choices and elections should decide such things.
Even particular prosecutions (or non-prosecutions) may involve questions of political judgment that a U.S. attorney’s superiors are entitled to weigh in on. In my opinion only the misguided Independent Counsel law allowed the decision to turn an embarrassing sexual escapade into only the second impeachment of a president in the history of our nation. Review by a responsible superior authority might have prevented that travesty.
The question speaks of partisan political reasons. It is a hard line to draw between a partisan political reason – say to target for investigation and prosecution persons on something like Nixon’s “enemies list” – and the prosecution of persons involved in activities that it is the administration’s policy vigorously to deter and punish, activities better tolerated by the opposing party. At the extreme, systematic harassment of political enemies or deliberate sabotaging of prosecutions of political friends may constitute obstruction of justice. An administration should be held politically accountable for its decisions all across this spectrum.
The current episode is yet another illustration of this administration’s failure to explain itself clearly, candidly and convincingly. And of course there is no greater blunder than accusing the men and women you are replacing of incompetence, instead of praising their accomplishments and saying that the administration wishes to give others a chance to mark similar accomplishments or at worst saying that “You will, I know, realize, that I do not feel that your mind and my mind go along together on either … policies or administration . . .,” which is what FDR wrote to Federal Trade Commissioner William Humphrey, when he dismissed him. By impugning their performance, the administration forced the departing U.S. attorneys to defend themselves and thus to say things that would put the administration in the worst possible light.
Professor Philip Heymann
A president can and should tell U.S. attorneys how he would like them to allocate their resources in terms of types of crime, although local concerns and beliefs are very important, too. The attorney general does this by announcing priorities. There are, however, a number of things that neither an attorney general nor a president should do, and others that he cannot do because they are impossible. Let me list the latter first, addressing what is impossible for the attorney general to do – a category important in assessing the reality of the explanations that have been put forward for firing the U.S. attorneys. He cannot affect priorities in resource allocation unless he announces his wishes to the U.S. attorneys. The priorities that Attorney General Gonzalez announced for the relevant year, 2006, did not, for example, include voter fraud; so that was not a priority category.
He cannot expect the message to get across promptly or fairly unless he warns a U.S. attorney that he or she is not taking their priorities seriously enough. Nobody came close to doing this. To the contrary, a number of the fired U.S. attorneys were commended for their excellent work.
He cannot send a moderately clear message about priorities by firing if he doesn’t take steps to disassociate it from political concerns of members of Congress or White House staff that are plainly operating at the same time. Senator Domenici, for example, had called a U.S. attorney to press for early, pre-election charges against Democrats.
He cannot expect U.S. attorneys to prosecute more of any type of case unless the investigative agencies are bringing them triable cases. The relevant investigative agencies commended the work of several of the U.S. attorneys in the area in which the U.S. attorneys are said to have failed. Now to what the attorney general should not do. He may not differentiate between Republicans and Democrats, or supporters and opponents of the party in office, in the cases he brings. The result of that would be an awesome breakdown in the trust needed to obtain information, witnesses, cooperation and much more that a criminal justice system depends upon.
He may not direct or encourage a U.S. attorney to bring any case where the level of proof—the likelihood of conviction—is less than the generally accepted standard. That means that he must know that investigative files adequate for conviction are being brought to a U.S. attorney before he can discipline the U.S. attorney for failure to bring more cases in that category. The legitimacy of his power, as a superior, to direct that a case be brought or not be brought thus depends not only on his willingness to forbear political considerations in exercising discretion, but also on his taking the time to have the available evidence reviewed for its adequacy. There is no sign that this happened in any of the cases.
He may not allow White House political operatives to take part in decisions to punish a U.S. attorney for the cases he has brought or not brought because that violates both requirements: that politics be excluded from prosecution decisions and that no U.S. attorney be held responsible or be encouraged to bring or refrain from bringing cases that would fail to meet normal standards. U.S. attorneys are political appointees, as are federal judges, but once in office they have an overriding responsibility to justice in individual cases and to pursue justice without fear of retribution from political operatives of any administration.