The Apolitical Prosecutor Problem

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:

  1. United States Attorneys serve at the pleasure of the president
  2. 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.

16 thoughts on “The Apolitical Prosecutor Problem

  1. Nick Selby

    I agree. The only thing confusing me is your statement of conservatism in the concept that one always pursue the most serious provable offense. That’s pretty fundamental, and I think apolitical: if we didn’t, we’d be hitting murderers with parking summonses because they are easier cases to bring and win.

    1. SHG Post author

      First, that’s not my statement, but AG Ashcroft’s memo. Second, I don’t think you appreciate the implications of the Ashcroft Memo, that a mother with starving children drug mule carrying a key is hit with 10,000 kilos as part of a conspiracy, carrying the mandatory minimums and Guideline of life plus cancer, and the US Attorney can’t exercise charging discretion to prevent it.

  2. delurking

    Most people who will read either this or Neyfakh know that interpretation of laws is a non-trivial exercise, and that methods and philosophies of such interpretations are reasonably well-correlated with political party affiliation. Since a president cannot review the decisions of every US Attorney, it is reasonable that he would want the executive branch to be staffed with people whose methods and philosophies match as closely as possible his own (not that I attribute such reasoning to the current president, but as a general support for the status quo it holds).

    Similarly, some laws are enforced more diligently than others, despite them all being nominally of equal importance. While Attorneys of neither party are likely to prosecute someone for throwing away that junk mail with the previous homeowner’s name on it, there are likely to be party differences in their rank ordering of the importance of prosecuting, say, marijuana vs. financial crimes. It is reasonable for a president to want Attorneys whose priorities are likely to match his own.

    1. SHG Post author

      Most US Attorneys come from the ranks of DoJ, not from political outsiders. These are career prosecutors, and while there may be differences in perspective, they’re so minor as to be largely discernible. What you believe you see is an illusion held by clueless outsiders. There is little, if any, change.

      1. delurking

        Interesting. Maybe, then, most of the replacements are for show and cause little practical difference, but it would look strange to replace only a few high-profile people (or perhaps more accurately the people in a few high-profile districts)? Were Preet Bharara and Michael Garcia pretty similar?

        1. SHG Post author

          Have you ever considered asking an open-ended question rather than begging the question? You might actually get a useful response that way.

  3. Denverdog

    US Atty appointments may not be a reward for third tier campaign hacks in the SDNY, but history shows that out here in ‘flyover country’ they very often are. Although they don’t cost as much as a plum ambassador appointment does, the principle is the same, as you do allude to. And often, in practice this means that the US Atty has no clue about the job and hence relies on the career professionals who as a result end up actually running things.. The main element of the job turns out to be making pronouncements at press conferences. Which leads to another question – since the offices take their instructions from DC, why do we need a local US Atty in the first place?

    1. SHG Post author

      The rank and file assistants remain the same. Only the spokesmodel changes. The office goes on with business as usual. I don’t think the question is whether we need a local US Atty, but whether the holder of that office should matter as more than a mid-level manager of an ongoing enterprise.

      1. Charles

        It’s certainly an “ongoing enterprise,” but I wouldn’t exactly call them “mid-level managers” due to the sheer size of the “enterprise”.

        Wouldn’t a better analogue be “managing partners” of individual offices in a BigLaw firm with offices in every mid- to large-sized U.S. city?

    2. phv3773

      Traditionally, patronage jobs were all about employment, not about policy. If you win, your guys get hired. I don’t imagine US Attorneys are selected from the ranks of the unemployed, but the appointment does come as a huge stamp of approval and with a public forum, both of which are rewarding to the ego and a great boost for political aspirations for those so inclined.

  4. Humming Idiot Wind

    It is axiomatic that with elections come consequences so elections either have consequences or they are a farce. So why shouldn’t replacing US Attorneys be part of the consequence of a presidential election? Scott’s position appears to be that the reason why US Attorneys shouldn’t be replaced is because there is no actual consequences to be had by replacing them. Any legal consequence is “illusory” held by people who are “outsiders” because the US Attorney is a “spokesperson” while presumably the career attorneys do all the work and make all the decisions.

    So if Scott’s description of reality is true then the problem is that the professionalization of the legal profession has undermined democratic accountability because it has eliminated any opportunity for meaningful change. When elected attorneys lose their jobs things should change; indeed they MUST change because if they do not change then the election is a farce, a show, a passing scene. In short Scott has to chose: he can have apolitical neutrality or he can have democratic accountability but he can’t have both.

    1. SHG Post author

      Cool first ever SJ comment, but if you’re going to tell me what my position “appears to be,” please try not to be a blithering idiot and totally fuck it up. Thank you.

  5. Frank Miceli

    Like prosecutors, judges are said to be independent and apolitical. Yet empirical studies show that judicial behavior often follows the political leanings of judges as well as other legally irrelevant characteristics such as race and sex. Hence, their political views as well as race and sex often figure in their appointments. Granted, judges, unlike prosecutors, serve for life (“during good behavior”), but why should we see the way prosecutors are appointed as a problem, while accepting the appointment practices for judges? Looks like we’re dealing with a difference in degree but not in kind, with both practices troublesome. But then–what’s the alternative?

  6. Kirk Taylor

    The other side is evil. Everything they do, they do with dishonesty and a desire to cheat the system to the benefit of their partisans. For this reason, none of their political appointees can be trusted not to abuse their power to undermine the new administration’s policies. OUR administration HAD to replace these suspect persons with people of integrity and honor.
    The fact that this administration has taken the above to an absurd level does not mean that every other administration hasn’t thought the same.

Comments are closed.