Prosecutors and politics

During the uproar over the firing of nine U.S. attorneys by the Bush administration, an ordinary citizen could be excused for thinking that Democrats opposed any role for partisan politics in the operation of the Justice Department. That naive notion has been dispelled as President Obama moves to install his own appointees as chief federal prosecutors.

It doesn’t follow that Obama and Atty. Gen. Eric H. Holder Jr. will countenance the abuses that occurred in the Bush Justice Department, some of which are under criminal investigation. But it demonstrates that, regardless of which party is in power, U.S. attorneys will not be chosen by merit alone.

The 2006 firing of the U.S. attorneys played a key role in the resignation of hapless (and spineless) Atty. Gen. Alberto R. Gonzales. Subsequent investigations depicted a chaotic situation in which nameless political functionaries conspired to cashier the president’s own appointees because they weren’t “loyal Bushies.”

The Justice Department’s inspector general and Office of Professional Responsibility failed to substantiate some of the most serious suspicions about the firings, such as the idea that Carol Lam, the U.S. attorney in San Diego, was dismissed because she targeted former Rep. Randy “Duke” Cunningham, who eventually pleaded guilty in a bribery scandal. But their report recommended a criminal investigation into the firings, especially that of David C. Iglesias, who had alienated then-Sen. Pete V. Domenici (R-N.M.) by not concluding a corruption investigation of a Democrat before the 2006 election. The watchdog agencies also found that the Bush Justice Department was employing a partisan litmus test in the hiring of what were supposed to be career employees.

Now Democrats control the White House as well as Congress, and, as Sarah Palin might say, partisan politics is again rearing its head. As in the Bush administration, home-state senators of the president’s party are recommending candidates for U.S. attorney. While retaining fireproof U.S. Atty. Patrick Fitzgerald, Obama has moved to replace other Bush appointees with accomplished lawyers who, like Holder, also have Democratic connections. Take Obama’s choice for perhaps the most prestigious U.S. attorney’s office, the Southern District of New York. Preet Bharara is a former assistant U.S. attorney in that office, but also served as chief counsel for Sen. Charles E. Schumer (D-N.Y.).

Home-state senators traditionally have a say in the appointment of U.S. attorneys, even if they rely on advisory panels to screen candidates. What matters is that the administration puts both U.S. attorneys and their senatorial sponsors on notice, by word and example, that the politics stops when the prosecutor is sworn in.