Heymann and Fried on the U.S. Attorney Controversy

BY SEAN MCDONNELL

While it remains to be seen whether Attorney General Alberto Gonzalez’s testimony before the Senate Judiciary Committee can serve to blunt the firestorm surrounding the Bush administration over the firing of eight U.S. Attorneys, earlier this week many at Harvard Law School were not waiting to reserve judgment.

The growing investigation surrounding the U.S. Attorneys, who have alleged they were improperly dismissed for political reasons, has garnered significant attention at Harvard. The most serious charges allege political pressure on federal prosecutors to pursue cases against Democrats and abandon cases against Republicans.

Professors Philip Heymann and Charles Fried wrote competing assessments of the dismissals which appeared on Harvard’s website earlier this month. In a lecture sponsored by the HLS Democrats on April 8, Heymann told the roughly 50 students in attendance at Pound Hall that Gonzalez had much to answer for.

“There’s no excuse for anybody bringing a case unless they think they are going to get a conviction,” Heymann said. “It’s not like a shootout. It’s not the Wild West. That means that it’s impossible for the Attorney General to complain about individual cases that weren’t brought unless the Attorney General looked at the facts and concluded that the evidence was there.”

Heymann served as Assistant Attorney General, the second-highest ranking official in the Justice Department, during the Clinton administration.

“Since 1976 attorney generals have announced priorities,” Heymann said. “Neither immigration crimes nor voter fraud (which prosecutors were pressured to pursue against Democrats) were among the six announced by the Attorney General. That will make it a little embarrassing for Attorney General Gonzalez when he says that the U.S. Attorneys were fired for ignoring the President’s priorities. He never announced his priorities.”

The dismissals and allegations raised many questions about how political or independent U.S. Attorneys, who are appointed by the President, should be. The line between acceptable agenda setting and improper political pressure is often nebulous.

“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,” Fried, who served as Solicitor General during the Reagan administration, wrote. “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.”

The fired U.S. Attorneys have described several instances of pressure to pursue prosecutions of members of the political opposition. Some such allegations have been levied at the highest levels of government, including the White House.

Senator Pete Domenici (R-NM) allegedly personally telephoned then-U.S. Attorney David Iglesias to inquire about an investigation involving a prominent New Mexico Democrat. Iglesias claims to have told Domenici that the office had no plans to prosecute. According to the Albuquerque Journal, Domenici then made personal appeals to Gonzalez, senior White House advisor Karl Rove, and the President. Iglesias’s termination was announced on Dec. 7, 2006.

“I don’t think that there is any crime for urging a U.S. Attorney to bring a case,” Heymann said. “That being said, urging him not to bring a case could easily become obstruction of justice.”

Heymann stressed that even if the law has not been violated, public confidence in the justice system has been severely shaken.

“What’s behind all of this is that it is very important to maintain the confidence of the American people that the justice system is not political. When you take the job of a U.S. Attorney you swear an oath that you will no longer be political.”

With Democrats in control of the Senate Judiciary Committee, which oversees the Justice Department, congressional interest in the motivation behind the firings is unlikely to wane in the near future. Heymann said he has urged Chairman Patrick Leahy to ask current U.S. Attorneys to report political pressure.

“The separate question is how much was done by other U.S. Attorneys, who were not fired, in response to political requests,” Heymann said.

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