Thomas M. Boyd

The US attorney mess

By Thomas M. Boyd
March 20, 2007
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AS WASHINGTON scandals go, the latest contretemps over the firing of eight US attorneys in December is minor league. Or, rather, it was. In a presidential election cycle in which the mere prospect of irregular conduct within the Bush administration is enough to send opportunistic Democrats rushing to the microphones calling for investigative hearings, subpoenas and the appointment of special prosecutors, one would think that the White House and Justice Department would have anticipated the inevitable. They didn't and have only themselves to blame.

There are 93 US attorneys in the country, one in each federal judicial district, and they are appointed by the president, with the advice and consent of the Senate. They serve "at the pleasure of the president," which means that they can be removed at any time and for any reason.

And over time they have been, by presidents from both parties, including Ronald Reagan and Bill Clinton. Both removed all 93 at the beginning of their terms, as well as others later.

So what's new here? Though it's common to replace incumbent US attorneys, it's unusual to do it so selectively, especially in the middle of a president's second term. It is more unusual to base the terminations so publicly on alleged poor performance in office. US attorneys are proud and ambitious people, and questioning their competence is tantamount to throwing down the gantlet.

The eight US attorneys in question immediately bristled at the suggestion, and that provided fodder for administration opponents. In particular, US Attorney David C. Iglesias of New Mexico complained that both Senator Pete Domenici and Representative Heather Wilson, New Mexico Republicans, called him to ask about an ongoing public corruption investigation involving a Democratic lawmaker.

Both members have denied that they ever intended to pressure Iglesias, and there is no evidence to the contrary, but the making of the call is enough to raise questions that now have to be answered.

When I was in the department, during the second Reagan term and the term of George H.W. Bush, I periodically received calls from members of Congress, usually of the other party, asking about ongoing investigations, urging us to initiate one, and sometimes demanding to know the timing -- and likely content -- of indictments. I routinely deflected the calls, most effectively when I delicately warned the caller that, notwithstanding the neutrality of the inquiry, his or her intent could still be misinterpreted if word were ever to get out that such questions had even been asked. Here, "word got out," and the purpose of those calls is now at issue.

Last week, a bipartisan Senate Judiciary Committee authorized the use of subpoenas to compel the appearance of five senior Justice Department officials, and pressure is mounting to expand that inquiry to White House staff, including senior political adviser Karl Rove, whom e-mails now link to the removal of US Attorney Bud Cummings, of Little Rock, Ark. , possibly in favor of his protégé. Those same e-mails have also brought into question the candor of the department's early explanations.

On Monday night, the department delivered 3,000 pages of new documents to the House and Senate Judiciary Committees, and the time left to resolve this mess is fleeting.

On its face, this effort was neither improper or unprecedented, but in Washington, it's a given that the handling of the aftermath is often more troublesome than the initial transgression. And this appears to have been mismanaged from the start.

Obviously, if the removal of any of the eight US attorneys is tied to an effort to affect the outcome of ongoing investigations, or if it becomes apparent that senior officials deliberately misled Congress, then this becomes a different story. As President Bush said on March 14, "Mistakes were made . . . the fact that both Republicans and Democrats feel like there was not straightforward communication troubles me."

It ought to.

Thomas M. Boyd, a partner in the Washington office of Alston & Bird, is a former assistant attorney general.

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