Scott Lilly: Attorney Scandal Without Precedent

Defenders of the Bush administration's decision to fire eight U.S. Attorneys in December have argued that the move was not out of the ordinary since those appointed to that position are presidential appointees and thus serve at the leisure of the president.

The argument is that if the president wants to weed out those who have been less than satisfactory by whatever subjective standard the president or his staff may wish to apply, then there is no reason that he cannot take away what he has given. Critics of the move agree that the president may have the power to appoint U.S. Attorneys, but argue that these positions should not be manipulated as if they were pieces in a game of political chess.

One question that has remained unresolved is the extent to which the view put forth by the Bush administration matches that of previous administrations. Is the White House and Justice Department today practicing business as usual? Or is this a complete break from past practice and an unprecedented move?

That question appears to be largely resolved by a Congressional Research Service report on the issue released yesterday. CRS examined the tenure of all U.S. Attorneys who were confirmed by the Senates between the years 1981 and 2006 to determine how many had served-and of those how many had been forced to resign for reasons other than a change in administration.

The answer is that of the 468 confirmations made by the Senate over the 25-year period, only 10 left office involuntarily for reasons other than a change in administration prior to the firings that took place in December, according to the available evidence gathered by CRS. The average incidence of such involuntary departures was one out of every two-and-a-half years; the largest number of such departures prior to this administration was a total of four departures during the Clinton administration.

But the December firings by the Bush administration stand in even more stark contrast with the firings that took place in previous administrations when the grounds for the departures are examined. In virtually all instances prior to the December firings, including two previous departures during this administration, serious issues of personal or professional conduct appeared to be the driving issue.

Prior to December, for example, only two U.S. Attorneys were outright fired. The first was William Kennedy, U.S. Attorney for the Southern District of California. The Christian Science Monitor on Apr. 26, 1982 explained that he was dismissed "for charging that the Justice Department, at the request of the Central Intelligence Agency, was blocking his attempt to prosecute Mr. [Miguel] Nassar [Haro], because he had been a key CIA informant on Mexican and Central American affairs."

The second, J. William Petro, U.S. Attorney for the Northern District of Ohio, was dismissed (according to the Oct. 3, 1984 edition of The New York Times) because the Department of Justice was "investigating allegations that Mr. Petro disclosed information about an indictment pending from an undercover operation and that the information reached a subject of the investigation." Petro was later convicted of the charges.

The CRS report identifies six other U.S. Attorneys who resigned during the 25-year period who were implicated in news reports of "questionable conduct." These included:

• Frank L. McNamara, Jr., U.S. Attorney for the District of Massachusetts who resigned because "he was the target of an internal probe," into "whether he had lied to federal officials," according to a Jan. 31, 1989 report in The Boston Globe.

• Larry Colleton, the U.S. Attorney for the Middle District of Florida resigned in Jul. 1994 after he was "videotaped grabbing Jacksonville television reporter Richard Rose by the throat," according to local press reports.

• Kendall Coffey, U.S. Attorney for the Southern District of Florida, resigned on May 12, 1996, according to news reports, "amid accusations that he bit a topless dancer on the arm during a visit to an adult club."

• Michael Troop, U.S. Attorney for the Western District of Kentucky, who resigned to become State Police Commissioner. Later reports indicated that he was under investigation at the time by the Justice Department for sexual harassment.

• Karl Kasey, U.S. Attorney for the Southern District of West Virginia, who according to news reports "abruptly left office after the Justice Department began investigating e-mails in which offered to secretly assist a GOP candidate."

In two other cases, there were no apparent issues of personal or professional misconduct. Michael Yamaguchi, U.S. Attorney for the Northern District of California, appears to have been a victim of disapproving federal judges. The CRS report sites news reports in 1998 stating that he was "apparently squeezed out by the local federal bench and his bosses in the U.S. Justice Department."

The only instance other than the recent firings in which there was no apparent explanation for a forced resignation also occurred during the Bush administration. Thomas DiBiagio, U.S. Attorney for the District of Maryland resigned in 2005. Recent news reports indicate that he "was forced from office," but there has been no explanation as to why.

It is clear that of the four administrations that controlled the executive branch of government during the past quarter-century, only the current administration has held the view that U.S. Attorney can or should be removed absent serious cause. In no instance is there any indication of a removal because a U.S. attorney failed to meet certain political criteria, such as prosecuting cases that were considered too sensitive to partisan issues or failing to prosecute cases that would be helpful from a partisan perspective.

The innovative philosophy of the current Bush administration with respect to the service of U.S. Attorneys is worthy of the attention it is now receiving. Those eight forced resignations threaten the very basis of our justice system-to quote the words written above the pillars on the west front of the Supreme Court, "Equal Justice Under Law."

Scott Lilly is a Senior Fellow at the Center for American Progress. His columns can be found on the Open Government page of the Center's website.

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