How U.S. Attorneys Get Appointed

With all the cries of "foul" over the U.S. attorney firings, I think it might be helpful for readers to know just how U.S. attorneys are selected.

The job has always been a political plum. The U.S. Attorney is nominated by the President, based on recommendations from the Senators in the particular District. Almost without exception, the appointee is from the President’s political party. When a new President is elected, we get new U.S. Attorneys.

The Assistant U.S. Attorneys get to stay, under civil service rules. They can't be ousted because of political reasons.

The travesty of the current U.S. Attorney firing scandal is not that U.S. Attorneys are being replaced. That is expected after an election, such as the one in 2004. It's that it's happening in 2007.


The Administration should have decided in 2004, following Bush's re-election, which U.S. Attorneys it wanted to replace. In 2005, all U.S. Attorneys were subject to replacement. In fact, all of them are expected to submit their letters of resignation and either be retained or have their resignation letters accepted.

In 2007, there should be no replacements, except for any U.S. Attorneys who proved to be unqualified. The fact that the Bush Administration is trashing the reputations of U.S. Attorneys it once endorsed for the job, in a non-election year raises considerable questions.

U.S. Attorneys serve at the pleasure of the President. There is no reason to replace them in a non-election year, except for malfeasance. If it turns out that the fired U.S. Attorneys did nothing wrong, but were replaced anyway in a non-election year, then the Bush Administration has overstepped its bounds.

I'm no fan of Republican U.S. Attorneys who got their job because they carried water for Bush in 2004 and had the blessing of their District's Senators. That's the way the job is assigned.

But, firing them because they didn't bring the cases the Administration wanted them to bring, or because they brought cases against Republicans or didn't bring cases against Democrats is beyond the pale.

Once appointed, the U.S. Attorney is not supposed to be a political hack. He or she, like every prosecutor, is supposed to make decisions to ensure that justice is done. If you're skeptical the U.S. Attorney can switch horses so fast, you have a right to be.

In a way, for people to now complain that Alberto Gonzales is a political hack isn't right. Blame the Senators who voted for his confirmation. We all knew who he was when he was nominated to be Number One at the Justice Department. Of course, he's carrying Bush's water. That's his job.

Just as the fired U.S. Attorneys knew they were political appointees when they took the job. They were expected to follow the lead of the Bush- appointed Attorney General If he decided pornography was his top mission, they were expected to go after pornographers. If he decided gun offenses had top priority, they were expected to follow suit.

They knew this in accepting the job. The problem is, that once in the job, they are obligated to to be fair. If the Bush Administration says political corruption is a top target, they can't differentiate by party.

Yet, it appears, that the fired U.S. Attorneys are saying they tried to follow their mandates from the Attorney General, who likewise is a political appointee of the President, but sometimes it was Republican officials who had done wrong. Are they to blame if that's how the facts developed?

U.S. Attorneys don't make decisions in a vacuum. They make them based on how the agents of the divisions responsible for investigating allegations of wrongdoing report their conclusions.

Each of the fired U.S. Attorneys disputing Administration claims they didn't adequately perform their jobs is entitled to a independent and non-partisan review of their charging decisions.

It may be that the Administration bought a pig in the poke in picking U.S. Attorneys based on senatorial recommendations. And that after a period of time, the Administration became dissatisfied with some of its choices.

But let's not pretend this is something different than past administrations. The U.S. Attorney's job is a plum, a reward for party loyalty, sacrifice made or money raised during the Presidential campaign. It's not about a prosecutor who was so skilled at prosecuting, he or she had a great record. Many U.S. Attorneys have no recent prosecutorial skills. In Colorado, for example, after Tom Strickland, a partner in a huge politically influential law firm, lost his bid for Senator, President Clinton made him U.S. Attorney, based on the recommendations of Colorado's Senators. The U.S. Attorney we have now was a crony of former Governor Bill Owens. The U.S. Attorney's wife was made a state Supreme Court justice. Others will argue they were qualified for their respective positions. Baloney, in my opinion. It's politics as usual. If John Kerry had won in 2004, we'd have a different U.S. Attorney. The one who got the job would have done so based on a sacrifice or contribution made to Kerry's election.

I have only so much sympathy for the fired prosecutors. They knew what the job was when they accepted it. Kudos to those who refused to continue to carry the Administration water once installed in their posts. But lets not turn them into heroes. They knew what the gig was when they took the job.

I was in federal court today. There were three Assistant U.S. Attorneys in the courtroom, each with their respective cases. There was zero politics involved. One case was bankruptcy fraud, one involved a felon in possession of a firearm and one was someone with a prior conviction for an aggravated felony now charged with illegal entry after deportation. They are following the mandates of the Attorney General: go after gun, pornography crimes and immigration offenses.

This all reminds me of a story I like to tell juries in opening argument in snitch cases. There was a Rocky Mountain farmer. He loved all God's creatures. One time, as he was out clearing the snow from his long driveway he found a mostly frozen snake. He brought him inside and put him in front of the fireplace so he'd thaw out. He and the snake developed a relationship. A few nights later, he bent down in front of the fireplace to stick another log on the fire. As he bent down, the snake jumped up and bit him in the as*. The farmer, knowing he was going to die, was crushed and said to the snake, "How could you do that to me, after all I've done for you?" To which the snake responded, "You knew what I was when you brought me in here."

So have whatever sympathy for these U.S. Attorneys that you deem appropriate. Just remember that when appointed, it wasn't because they were non-partisan champions of justice. It was because they were political friends of Bush or the Republican party.

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  • Display: Sort:
    Gre4at and necessary post (5.00 / 1) (#1)
    by Big Tent Democrat on Tue Mar 13, 2007 at 02:07:58 AM EST

    Jeralyn, there's a new factor in play (5.00 / 1) (#7)
    by rdandrea on Tue Mar 13, 2007 at 08:09:53 AM EST
    Changes in the Patriot Act reauthorization bill allow the new U.S. attorneys to serve for the remainder of the President's term without legislative confirmation.

    It's not that the replacements are political hacks--you're right that they all are, by definition--it's that we're likely to get much worse because of changes to the confirmation process.

    The President could have dumped them all after the 2004 election, but he chose to wait until after the 2005 legislation so he wouldn't have to have the new ones confirmed.

    Your comment is key to this fiasco (none / 0) (#12)
    by annefrank on Tue Mar 13, 2007 at 11:15:34 AM EST
    The President could have dumped them all after the 2004 election, but he chose to wait until after the 2005 legislation so he wouldn't have to have the new ones confirmed.

    Problem:using judiciary to influence elections (5.00 / 1) (#9)
    by erichwwk on Tue Mar 13, 2007 at 08:24:08 AM EST
    "firing them because they didn't bring the cases the Administration wanted them to bring, or because they brought cases against Republicans or didn't bring cases against Democrats is beyond the pale."

    THAT is the issue. We all know that the dollar amount of corruption revealed by federal prosecutors was higher for republicans than it was for democrats. What was not so well known is that this was DESPITE the fact that 79% of the cases were filed against democrats.

    If it is permissible to use federal prosecutors to initiate cases based on ensuring the incumbent party remains in control, the ability for the PUBLIC to have its druthers reflecting in a voting process is severely diminished.

    Well, my belief ... (none / 0) (#11)
    by Deconstructionist on Tue Mar 13, 2007 at 09:09:16 AM EST
      is that there is likely enough political corruption in both parties to keep any prosecutor pretty busy.

      At the most basic level, I'd love to see more emphasis on that as opposed to chasing down street level drug-dealers and slapping them with sentences that often far exceed those imposed on thoise who commit serious breaches of the public trust.



    Gonzales' chief of staff has resigned (none / 0) (#2)
    by annefrank on Tue Mar 13, 2007 at 02:08:10 AM EST
    because he didn't tell DOJ officials the extent of the White House's involvement in firing the USAs, resulting in DOJ officials providing incorrect info to Congress. So- this story just gets more involved.

    Is he the "Libby" in this case? (5.00 / 2) (#5)
    by Rick B on Tue Mar 13, 2007 at 07:58:15 AM EST
    Did he really not tell the DoJ bigwigs the extent of the White House's involvment in the firing, or is he the "Libby" to the Top DoJ officers? Is he the cut-out providing "plausible deniality" or preventing the gathering of evidence that inplicates Alberto?

    I'll bet he lands really softly, and has no financial problems for the foreseeable future. Gonzales is really close to Bush, and will be protected to the end.


    annefrank (1.00 / 0) (#6)
    by jimakaPPJ on Tue Mar 13, 2007 at 07:58:48 AM EST
    U.S. Attorneys serve at the pleasure of the President.

    It is not complicated at all. See above.


    More complicated than that (5.00 / 1) (#8)
    by Big Tent Democrat on Tue Mar 13, 2007 at 08:16:29 AM EST
    Read Jeralyn's post.

    I have no problem with the timing (none / 0) (#4)
    by Deconstructionist on Tue Mar 13, 2007 at 07:03:19 AM EST
      I don't think the issue is that a President replaces his own appointees in the middle of the term.  I don't even have a problem with a U.S.Attorney being replaced for political or personal reasons as opposed to "objective" performance related issues.

      I think portraying it that way misstates the case. It's a problem if someone is ousted for: retaliation for pursuing a meritorious investigation or prosecution opposed by the Administration (or politicians with pull with the Adminisstration); retaliation for not pursuing a case believed to be without merit that is desired the Administration; or refusing to "tailor" an investigation/prosecution to be timed to create political advantage.

      Moreover, while that's a "problem" and something Congress should investigate carefully within its oversight duties. I still think the President should have the prerogative; he just has to take the heat for doing it.

      I think the real concern here is the replacements, both their identity in some case and the nature of their appointments under the amended statute which does not require submission to he Senate for consent. This does in the eyes of many establish good reason to "fix" the statute which is within the power of congress.

      That it's NOT the firing of these folks now that is the real issue  can be illustrated by asking what the reaction here would be if a President appointed a U.S. Attorney  then terminated him in the middle of a term because of numerous complaints from the defense bar that despite being a competent lawyer and manager he had established policies that were too harsh and  inflexible and were resulkting in what the defense bar considered to be injustice. If a President agreed with that and replaced the appointee with someone more open to our concerns, would we not applaud that?


    first of all (none / 0) (#10)
    by Deconstructionist on Tue Mar 13, 2007 at 08:42:25 AM EST
     United States Attorneys are DOJ employees. DOJ is in the Executive Branch.

       Justices and judges in the federal system are political appointees but the higher level judicial officers (district court and above) get lifetime appointments. On the one hand this certainly insulates them from transient political pressure if they choose not to be influenced. On the other, it means the judiciary is less responsive and accountable. In other words not only  a "bad" judge is all but intouchable unless he commits a crime or impeachable offense, but systemically the judiciary can be dominated by people with views that are contrary to the prevailing political will. (Remember Roosevelt's battles with the Supreme Court in his first term when it repeatedly voided New Deal legislation as unconstituional using substantive due process theories and the like)

      Roosevelt only ultimately prevailed precisely because of politics.  He didn't succeed with his "Court packing" plan (Legislation that would have allowed him to appoint a new justice whenever a current one reached 70 and did not retire), but the "nine old men" eventually caved because they realized continued resistance to  progressive legislation that enjoyed broad support likely would have eventually resulted in the Court losing some of its power.

       That saga was a clear example  of a president using politics to influence the judiciary. Most of us probably support it though because we prefer the progressive legislation to the pro-business bent of the Court prior to that.

      The point is we must remember to take the broader and longer approach and view things in structural and systemic terms and not merely in terms of who wins or loses now in a "snapshot" view.


    Exactly (none / 0) (#13)
    by sarcastic unnamed one on Tue Mar 13, 2007 at 01:16:38 PM EST
    It's politics as usual.

    politics (none / 0) (#14)
    by Steevo on Tue Mar 13, 2007 at 04:00:17 PM EST
    I think more accurately put, its a fraction of politics as usual. President Clinton fired 93 attorneys (almost all Republicans) at the beginning of his first term. No other President had done this.

    Of course its a "scandal" for President Bush exercising his constitutional rights according to ABC. They had no problem with Clinton.


    I call BS (none / 0) (#15)
    by Sailor on Tue Mar 13, 2007 at 05:27:40 PM EST
    No other President had done this.
    Please provide links.

    Please support this assertion (none / 0) (#18)
    by Aquaria on Fri Apr 20, 2007 at 11:18:17 PM EST
    Because it would come as a huge surprise to the many USAs replaced when Reagan replaced Carter. Or the Clinton USAs that Bush 43 replaced.

    You might want to read this article. It gives a pretty good rundown of how USA replacement really works, so this idiotic talking point can be buried, once and for all.


    U.S. Attorneys (none / 0) (#16)
    by Stajack on Tue Mar 13, 2007 at 05:38:31 PM EST
    "Serve at the pleasure of the President".  Is there some embedded code in this phrase?  Some  hidden mantra that changes the interpretation to "at the pleasure of the opposing party, the media and/or the latest hotshot blogsite"?  Just curious.

    Depends on your interpretation (none / 0) (#17)
    by Aquaria on Fri Apr 20, 2007 at 11:12:07 PM EST
    One definition is that you serve at the Pleasure of the President, but that doesn't mean you have to please the President. Or pleasure him. It doesn't mean that the President can do with them anything he wants; he's expected to follow reasonable standards of retention of appointees.

    According to James Madison, it means that appointees stay as long as they do a good job while that President is in office, and he will retain them as long as they are meeting his standards. He can remove them for doing a poor job (as per his standards), but not for petty, ridiculous reasons (certainly not nakedly partisan, political reasons). It doesn't mean the President can fire them arbitrarily. It certainly doesn't mean that, say, a President can sexually harass a US Attorney, then fire her because she wouldn't sleep with him. That sort of thing.