President can hire -- and fire
The controversy over the Justice Department’s dismissal of eight U.S. attorneys has turned the spotlight on the normally quiet process by which the federal government selects its top prosecutors. Here are some questions and answers on that process:
Who are the U.S. attorneys?
They are the chief federal law enforcement officers in 93 districts nationwide. They are responsible for leading investigations and prosecuting violations of federal law.
How are they chosen?
The president has the legal authority to hire and fire them. The U.S. Code says the president “shall appoint, by and with the advice and consent of the Senate, a United States attorney for each judicial district ... for a term of four years.”
At the end of this term, the U.S. attorney “shall continue to perform the duties of his office” until a successor is appointed. “Each United States attorney is subject to removal by the president.”
Senators have traditionally played the key role in selecting U.S. attorneys for their states, especially when their party controls the White House. The practice is much the same for federal district judges. Senators recommend candidates to serve as the U.S. attorney or a judge, and the president usually accepts those suggestions.
Are U.S. attorneys removed when a new president takes office?
Yes. Upon taking office, most presidents choose a new slate of U.S. attorneys. However, U.S. attorneys may stay on for a time if they are in the midst of a major investigation or prosecution.
Are U.S. attorneys always removed after four years in office?
No, not if the president who appointed them is reelected. When Presidents Reagan and Clinton were reelected, their U.S. attorneys stayed in office for a second four-year term.
That tradition was well-known to the Bush administration. In a memo sent to the White House last year, D. Kyle Sampson, Atty. Gen. Alberto R. Gonzales’ aide who quit this week, said the customary practice was to have U.S. attorneys “serve for four years and then holdover indefinately (sic), at the pleasure of the president, of course.”
Are U.S. attorneys regularly removed from office at the direction of the White House?
No. Officials of past Republican and Democratic administrations say they were unaware of an instance when a large group of U.S. attorneys was dismissed at once.
Do U.S. attorneys carry out the political wishes of the White House?
Most lawyers draw a sharp distinction between policies and partisan politics. The White House or the Justice Department could tell U.S. attorneys to bring more prosecutions for drugs, pornography or immigration violations without raising eyebrows. However, they say it would be disturbing for a Republican president or his advisors to press a U.S. attorney to bring charges against a Democratic official, or vice versa.
“They take seriously their oath of office that forbids political partisanship,” said Harvard law professor Philip B. Heymann, a deputy attorney general in the Clinton administration. “It would be destructive for our system if U.S. attorneys saw themselves as owing their first loyalty to the party that appointed them.”