The U.S. Attorney Firings: Presidential Prerogative or Partisan Purge?


The Berkman Center for Internet and Society and the Heyman Fellowship Program co-sponsored a panel on March 14 about recent revelations regarding the firing of eight U.S. Attorneys entitled “The U.S. Attorney Firings: Presidential Prerogative or Partisan Purge?” Professor James Flug moderated the panel as “a total neutral,” he said, to laughter from the gathered students. Professor David Barron, who worked in the White House’s Office of Legal Counsel under the Clinton administration, joined as a panelist too, while four others, including fired U.S. Attorney Bud Cummins of Arkansas, joined by conference call.

Flug started the panel by thanking the Attorney General, quipping “We were worried when we scheduled this that it might not be fresh news anymore, and here we are today.” The panel began with a discussion about the nature and the extent of the scandal. NPR reporter Ari Shapiro noted that Attorney General Alberto Gonzales had been, as a result of this, looking more harried than at any other time, even though the torture memo scandals might have been bigger. He postulated this is because the Bush administration is no longer dealing with a “rubber stamp Congress,” but with a Democratic one that is willing to lead inquiries into the firings.

Professor Barron, on the other hand, argued that the furor over this issue “has a little less to do with how the U.S. Attorneys were treated … and much more to do with” rule of law concerns. With the torture memos, he stated, “there was a sense that these were not Nixon-like scandals;” the government had taken substantive positions “that you may have thought were odious,” but not partisan. This, however, is the first scandal he can remember where the Justice Department is accused of playing politics in “the lowest form.”

The effect of these firings on the Justice Department’s reputation and credibility was a recurring theme. In response to a comment that Bush’s administration had been accused of politically motivated employment decisions and firings in the Environmental section and at HHS , Cummins noted that this showed that once people see politics injected into one decision they see it in all decisions. Similarly, Barron worried that scandals like this had the potential to eventually denigrate the status of the U.S. Attorney’s office in the eyes of the public. He compared it to appointments of ambassadors, which are seen as rewards for political loyalty or campaign contributions.

Asked about the directions U.S. Attorneys were given regarding politics, Cummins recounted that before the final stage of his appointment as a U.S. Attorney, then-Attorney General Ashcroft and then-Deputy Attorney General Larry Thompson required him (and every U.S. Attorney) to come to Washington for an individual meeting with both of them. Probably half of that meeting, he said, was devoted to Ashcroft’s analysis that “every time the department had allowed politics into” its workings it had lost credibility. While a lot of U.S. Attorneys had come to the job politically, it was made “abundantly clear to every one [of them] that [they] had to leave politics at the door to do this particular job.”

Cummins declined to comment specifically on whether that focus had declined in recent years, but did say that while that theme was always present under Ashcroft, he was not sure it had been reinforced by the current administration.

No non-political explanation for the recent firings has been proffered, and several panelists commented that the explanations given so far seem unconvincing. David Iglesias of New Mexico, for instance, showed up on the “hit list” only after it seemed that he hadn’t prosecuted Democratic officials to the extent desired, said Elliot Mincberg, the Chief Counsel for Oversight and Investigations at the House Judiciary Committee. Cummins added that the substantive reason given for Iglesias’s departure was that he was out of town too much, leaving the office in the hands of his deputy, despite the fact that as a Commander in the United States Navy Iglesias was required to be gone 40 days a year, a fact known to the Bush Administration at the time of his confirmation.

Conversely, Cummins said, the U.S. Attorney for the State of Montana is in a management position at the Department of Justice and is almost never in Montana, to the continual frustration of the Chief Judge of that District, yet he has remained in his position. Cummins and Flug both stated that accusations of failure to prosecute voting fraud, levied against U.S. Attorney John McKay from Seattle, seemed similarly implausible, particularly given the high level of oversight the Justice Department exercises over voting fraud cases.

While the panel was held mostly by conference call, Berkman Center Clinical Fellow Matt Lovell called up documents and websites relating to the scandal on the screen behind Barron and Flug, including several of the e-mails that the Justice Department had released.

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