Slate’s Leon Neyfakh asked a really good question, following the bizarre dance of the feelz around the firing of SDNY United States Attorney Preet Bharara. Two very strong, very sincere lines of thought were developing:
- United States Attorneys serve at the pleasure of the president
- United States Attorneys are independent, apolitical prosecutors
How does that work, Leon asked? There was little doubt that a new incoming president had the unfettered authority to replace, en masse, the appointed United States Attorneys, even if this president did so with this typically inappropriateness. Certainly, others had fired their predecessor’s appointees, so that part of it raised no serious questions.
[T]he underlying idea behind the move—that a president and his attorney general should bring in their own federal prosecutors—is widely accepted in Washington as standard operating procedure.
That doesn’t mean it makes sense. As every U.S. attorney will tell you, the job of enforcing the law is supposed to be apolitical. In theory at least, the key decisions a federal prosecutor makes—namely, who to charge and with what—must not be informed by ideology or partisanship. Why, then, are we supposed to shrug when the president dismisses an entire group of prosecutors just because they were appointed by the opposing party?
A really good question, and frankly, one that no one, as far as I can recall, had asked. Until Leon asked.
My initial reply was that primary prosecutorial policies were made at Main Justice, by the Attorney General and his surrogates. There have been numerous memos over the years, from the Thornburgh Memo informing United States Attorneys that their prosecutors were absolved of state attorney disciplinary rules, to the Cole Memo, directing them not to act against marijuana sellers in states where it was legalized. And, of course, the Lynch Memos, making it a putative violation of Titles VII and IX not to compel a put the panoply of transgender interests ahead of anyone else’s, and continuing the use of fraudulent junk science.
With these in hand, the United States Attorneys for each district was then left to his or her own devices to prosecutor “without fear or favor.”
To accept this as normal and necessary is to accept the premise that prosecutors aren’t independent at all, and that their bosses at the White House and the DOJ fully expect them to behave in a partisan manner. If they didn’t believe their prosecutors would behave like partisans, then the president and the attorney general wouldn’t feel the need to install their “own” people in those jobs, and they certainly wouldn’t push the last guy’s appointees out the door with no warning.
It would be one thing of the individuals serving as United States Attorneys were incomprtent hacks, political payoffs, the runny-nosed ne’er-do-well of a campaign contributor in desperate need of a job, and the new president doled out the posts like ambassadorships to show a little appreciation to those who gave him green hugs and supported his candidacy. But that’s not true.
Much as I may not have shown much empathy toward Poor Preet, it can’t be said that he didn’t do his job as United States Attorney well, in some respect, and apolitically as reflected in his taking down of some of New York’s most powerful politicians from both parties. So was he a poor choice all along? Hardly. Was he apolitical? Pretty much. And was he fired for political reasons? Definitely.
As Leon says, this “doesn’t make any sense.” Leon also posed the questions to some newly unemployed United States Attorneys. Did they have a better answer?
John Vaudreuil, who served as U.S. attorney for the Western District of Wisconsin until Friday, said he attended the same meeting and that he took Obama’s remarks to heart. While he knew he’d be clearing out his desk after Trump won the presidency, Vaudreuil had a hard time explaining the rationale behind his dismissal. The unavoidable implication, he agreed, was that the new administration didn’t trust him to make unbiased decisions because he was an Obama appointee. “It’s offensive,” Vaudreuil said. “We make decisions every day based on the facts, without fear of anybody, without favor to anybody.” After 37 years working as a federal prosecutor and holding himself to that standard, he said, it makes little sense “to then have somebody say, ‘Well, I gotta tell you something, since you’re a political appointee, we think you’re gonna [put your thumb on] the scale.’ ”
Vaudreuil’s beef is fair, but does little to answer the question of how he got appointed by President Obama (who didn’t carry over President Bush’s choice), and yet can wrap himself in apolitical clothing. It’s not to suggest that he made prosecutorial decisions for political reasons, but that he didn’t refuse the job when the incoming president gave him the poke. Did he respond to the phone call, “well, Mr. President, the current US Attorney is a wonderful prosecutor, and you should keep him on and not give me the job”?
And then there were the instructions from on high:
[Former Middle District of Louisiana United States Attorny, Walt] Green, like the other newly unemployed U.S. attorneys I spoke to, acknowledged that different administrations have different enforcement priorities and that those priorities will inevitably be informed by political beliefs. Eric Holder was certainly informed by his liberal worldview when he wrote a memo in 2013 instructing federal prosecutors to avoid certain mandatory minimums when making charging decisions. So, too, was John Ashcroft informed by his conservatism in writing a memo 10 years earlier urging his prosecutors to charge the most serious provable offense.
While individual US Attorneys may well be comfortable clinging to their apolitical claims, there is nothing apolitical about the policies imposed by the Attorneys General, and carried out by them and their minions. So while extolling their stance as apolitical and independent, the United States Attorneys remain beholden not just to a political administration, but it’s very political policies.
And yet, there’s an extreme dissonance between what that practice implies—that for all their lofty claims of independence, politically appointed prosecutors are always going to be political—and the standard of “independence” law enforcement officials are supposed to observe. Maybe it’s naïve to dwell on this dissonance and to act surprised at the charade it exposes. Insisting on the charade of prosecutorial independence, while treating the ritual firing of “independent” prosecutors as perfectly proper and logical, seems worse.
The law has no shortage of myths, dirty little secrets it persists in perpetrating with its maxims and mantras, repeated with sufficient frequency that most of us don’t bother to give it a second thought. Leon Neyfakh asked the question that few have bothered to ask before. It’s a damn good question. The answer is deeply unsatisfying.