Archive for Wednesday, March 21, 2007

Independence tops loyalty for prosecutors

March 21, 2007


In that intriguing corner of the world known as New Jersey, where I had the honor of pursuing news in the 1970s, little kids learn a civics lesson right about the same time they come to know the story of how Christopher Columbus whipped the Hessians and saved Atlantic City for Miss America. It's handed down from parent to child as an article of faith: Everything will be OK, so long as the U.S. attorney belongs to the other party than those bums running things in Trenton. Or at City Hall.

Darned if it didn't seem to be the case. If anyone was to lower the boom on the corruption that too often sullied the Garden State's good name, the job usually fell to the federal prosecutor. Two who stood out in that regard were Republicans Frederick Lacey and Herbert Stern, who put the fear of the federal pen into a collection of crooked, mobbed-up Democratic pols, and some Republicans as well.

Both of those gentlemen went on to serve with distinction as U.S. district judges. Their successors in the prosecutor's post - New Jersey, with about the same population as North Carolina, has one U.S. attorney, compared with three in North Carolina, so it is a powerful post indeed - have included Samuel Alito Jr., who sits on the Supreme Court, and Michael Chertoff, now secretary of homeland security.

Good Republicans all, recognized and rewarded as such. When it comes to U.S. attorneys and their accustomed role in the scheme of things, politics is an inescapable part of the equation. So where does that leave us with respect to the current Washington hullabaloo?

The suspicion is that when President Bush's Department of Justice canned several U.S. attorneys, it was getting rid of prosecutors who had proved politically inconvenient - either because they had targeted wrongdoing by other Republicans or because they had not been sufficiently aggressive toward Democrats.

Well, U.S. attorneys aren't like federal judges, with lifetime appointments upon good behavior. They serve four-year terms and are presidential creatures through and through, even if the Senate has to sign off on their appointment. Shouldn't they have to answer to someone in the presidential orbit for the quality of their performance?

Fair enough. But a U.S. attorney's performance shouldn't be gauged using a political yardstick. To do so is to create an expectation that the force of the federal justice system will be brought to bear in the service of self-serving partisan motives.

It ought to be blood-curdling for Americans to imagine FBI agents trolling for dirt on the political opponents of whoever occupies the White House, or of the president's Capitol Hill allies. That, though, is the sort of specter bound to arise if a U.S. attorney functions as a political operative following White House marching orders.

The other big problem when U.S. attorneys are politicized is that it subverts the independence of the Justice Department itself. Yes, the department is headed by an attorney general who often is politically close to the president. But the closer that tie, the greater the A.G.'s duty to keep his department from being turned into a cog in the White House political machine.

That is a duty to which our incumbent, Alberto Gonzales, seems basically oblivious. The ripples can spread as far as someplace like Raleigh, where Republican prosecutors have just nailed up a Democratic speaker of the state House. As it happens they were following the lead of private sector watchdogs such as The Raleigh News & Observer, and no evidence of partisanship has surfaced. Still, it doesn't help their credibility to be typecast as members of a posse gunning for Democrats.

Eight U.S. attorneys were told to hit the bricks. Some were ranked as "ineffectual" types who "chafed against administration initiatives." Others initially had been given good marks. But the White House also was hearing complaints from Republican figures irked at the pace and thrust of various prosecutions, and the possibility of dismissals had drawn interest early on from Karl Rove, Bush's top political adviser.

When an inquiry from Rove went to Justice in early 2005, Gonzales' chief of staff, Kyle Sampson, replied that the thinking at that point was to get rid of 15 percent or 20 percent of the 93 U.S. attorneys, all holdovers from Bush's first term. They would be the "underperforming" ones, he wrote in an e-mail reported in Friday's New York Times.

Sampson added: "The vast majority of U.S. attorneys, 80-85 percent, I would guess, are doing a great job, are loyal Bushies, etc." It's no great leap to conclude that the loyalists could get away with less than stellar performance in other respects and still be sitting pretty.

A conscientious federal prosecutor simply has to enforce the law in straight-up fashion, playing no favorites. Having one party keep an eye on the other is fine, but it can't be allowed to degrade into manipulation of the justice system. On that score the "Bushies" appear to have been caught in the act.

- Steve Ford is the editorial page editor of the Raleigh (N.C.) News & Observer. His e-mail address is


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