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Congress Wary of Justice Department Firings

February 26, 2007 at 6:40 PM EDT
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RAY SUAREZ: Margaret Chiara, the U.S. attorney for Western Michigan, suddenly announced her resignation on Friday after five years in the post. Although Chiara herself wouldn’t comment, several news accounts report she was forced out by Justice Department officials over differences of views on capital punishment, among other things.

Chiara is the eighth U.S. attorney to resign since December at the government’s request. The others: Bud Cummins, from Arkansas; Paul Charlton, of Arizona; Daniel Bogden, Nevada; David Iglesias, New Mexico; John McKay, Seattle; Kevin Ryan, San Francisco; and Carol Lam in San Diego.

Lam recently had won praise for indicting the number-three official at the CIA on corruption charges and for successfully prosecuting former Congressman Randy “Duke” Cunningham, who took $2 million in bribes from defense contractors.

In fact, in recent years, all had received positive job evaluations. However, Attorney General Alberto Gonzales has insisted that the prosecutors were replaced because they performed inadequately.

At a Senate hearing last month, California Democrat Dianne Feinstein took issue with that assertion. She’s pushing to repeal the law allowing the attorney general to replace sitting U.S. attorneys with temporary replacements indefinitely and without Senate approval.

SEN. DIANNE FEINSTEIN (D), California: I’m very concerned. I’ve had two of them asked to resign in my state, from major jurisdictions, with major cases ongoing, with substantially good records as prosecutors.

ALBERTO GONZALES, U.S. Attorney General: I would never, ever make a change in a United States attorney position for political reasons or if it would in any way jeopardize an ongoing serious investigation. I just would not do it.

RAY SUAREZ: But in the case of Bud Cummins in Arkansas, the Justice Department did admit he was removed to make way for a former aide to White House political adviser Karl Rove.

Questions raised by the firings

Stuart Gerson
Former Acting Attorney General
Is there any impedance of ongoing investigations or other initiatives so that the public isn't getting effective law enforcement? And I don't see any evidence of that being the case.

RAY SUAREZ: For more, we're joined by Stuart Gerson. He served as assistant attorney general during the first Bush administration and as acting attorney general under President Clinton. He's now in private practice in Washington.

And Laurie Levenson, she spent eight years as an assistant U.S. attorney in Los Angeles. She's now a professor of criminal law at Loyola Law School in Los Angeles. Both guests testified on this issue before the Senate Judiciary Committee earlier this month.

And, Prof. Levenson, there are more than 90 federal districts around the country served by U.S. attorneys. Why should the firing of eight attract so much attention?

LAURIE LEVENSON, Loyola Law School: Because it's quite unusual. Although it's not unusual to have the president put in his own appointees, at this stage of the game, midterm, with interims going in, in their place, that is not business as usual, especially when, all of a sudden, we're hearing it's performance-related, and yet the documentation indicates that it may not be.

Big red flags are going on as to whether they're politicizing these U.S. attorneys' offices or trying to centralize power back in Washington. It's just a question mark, because it's so different from what's been done before.

RAY SUAREZ: Mr. Gerson, not business as usual?

STUART GERSON, Former Acting Attorney General: Well, it's unusual, but I think the starting point needs to be, when you're looking at a process that's inherently political, and you're looking at individuals who all of whom have served more than four years, the real question that you need to be asking is: Is there any impedance of ongoing investigations or other initiatives so that the public isn't getting effective law enforcement? And I don't see any evidence of that being the case.

The impact of the firings

Laurie Levenson
Loyola Law School
[I]f this isn't political, why is it happening now? Why is it happening after the new Patriot Act that allowed the Justice Department to put in interim appointments without having to go through the regular confirmation process?

RAY SUAREZ: In several cases, Mr. Gerson, these people were told they were doing a good job in the way that political appointees are told, by performance reviews. And the first time they heard anything negative was when they read it in the newspapers as an explanation for their being forced out.

STUART GERSON: Well, I don't doubt that that's the way that this news was transmitted. And if that's so, perhaps the process was clumsier than it needed to be.

But in the case of at least one of those individuals, who clearly got a favorable report, at least 19 members of Congress felt otherwise, with respect to the level of enforcement of the immigration laws. Now, one can discuss that, but clearly some of the critics of the administration, including Sen. Feinstein, wrote letters to the department, which apparently had influence.

I just don't see any evidence that any case, any investigative initiative has been impaired in any way. Moreover, as I visit U.S. attorneys' offices around the country -- and I do it in connection with my work, sometimes they're my adversaries -- I really don't see any great falloff.

Of course, there are probably some people in some places who are concerned. That's understandable. It's almost always the case. But generally it's business as usual.

The career people who run 95-plus percent of what's going on are working assiduously at what they do. They're not avoiding corruption cases; they're not avoiding the hard cases. They're doing their job. The public is being well-served.

RAY SUAREZ: Prof. Levenson, what's your concern then?

LAURIE LEVENSON: Well, my concern is, frankly, that the offices aren't taking it this way; that is, there is a significant morale issue that's going on here.

Because for the troops -- and they are apolitical, for the most part, who are trying to do the right job -- they have big question marks. Why are their leaders being dismissed?

Likewise, for the judges in those districts, especially, for example, up in Seattle where John McKay was dismissed, they don't understand at all why somebody who has an office that's working well with the courts, is being very successful, is all of a sudden being dismissed.

So I think there is the question about, if there are these new priorities that all of a sudden the Justice Department has to put in, what are they? Are they going to be compatible with what the district needs are?

And, frankly, if this isn't political, why is it happening now? Why is it happening after the new Patriot Act that allowed the Justice Department to put in interim appointments without having to go through the regular confirmation process?

The new Patriot Act provisions

Stuart Gerson
Former Acting Attorney General
The administration has pledged itself to seek the advice and consent of the Senate on every single permanent appointment and to consult with the senators of that state. We'll see if that happens, but that's the pledge.

RAY SUAREZ: Why is it happening now? And has the change in the way replacements are appointed sort of brought attention to these firings?

STUART GERSON: Well, clearly it's brought attention to it, and it's had an affect. The administration has pledged that there will be no permanent appointment that takes place without consultation with the home state senators. That is the usual process.

This Patriot Act change that Prof. Levenson cites is clearly something that members on both sides of the aisle didn't pay sufficient attention to, but the initial reaction of the Feinstein proposal to take this away from the Justice Department and have it reside completely in the judiciary -- a bad idea, it's constitutionally inconsistent with the judicial function -- is now a bill that's been withdrawn, and we're going to return to the old system that worked well enough.

RAY SUAREZ: But let's be clear on what the Patriot Act amendment said. This little change in the reauthorization allows the attorney general to appoint replacements without Senate review, correct?

STUART GERSON: Well, indeed, that has always been the case, originally for 120 days. Now, it was argued that the administration was somehow trying to get around Congress and appoint interim people who would stay there forever.

Well, I think you need to put that in perspective. First, we're dealing with relatively few United States attorneys. It's no more than eight out of 93, so we begin with that. There's no massive effort.

Nor is any of these in a place where there's some critical matter going on that somehow is going to be interrupted. Almost all of the people who have been appointed interims are the same kind of people who have always been appointed interims.

The administration has pledged itself to seek the advice and consent of the Senate on every single permanent appointment and to consult with the senators of that state. We'll see if that happens, but that's the pledge. It's certainly being done in a way that should be transparent.

Selecting replacements

Laurie Levenson
Loyola Law School
[Y]ou get worried when things like what happened in Arkansas occur, when you have Bud Cummins, who even the Justice Department admits was doing a very good job, he's replaced all of a sudden with somebody who has comparatively little experience...

RAY SUAREZ: Professor, you noted that the administration can now make those replacement appointments in perpetuity. But as Mr. Gerson mentioned, the attorney general says he is going to go to the Senate. Does that satisfy you?

LAURIE LEVENSON: It doesn't really satisfy me, because the proof is in the pudding. And you get worried when things like what happened in Arkansas occur, when you have Bud Cummins, who even the Justice Department admits was doing a very good job, he's replaced all of a sudden with somebody who has comparatively little experience at this stage in his career, somebody who worked for Karl Rove, and then, realizing that if they have to put him up permanently he's not going to fly, they withdraw him, makes you wonder, why was he the interim?

Ordinarily I agree with Stuart Gerson that the interim, it would be somebody out of the same office, who's familiar with the operations of the office. But, for example, in San Francisco, Washington is sending out somebody from main Justice, from the Washington, D.C., office, the executive office, not somebody from within the office who knows the office's operations.

RAY SUAREZ: Wasn't the tradition, Mr. Gerson, to take a great deal of advice from the home state, that understands local conditions?

STUART GERSON: Absolutely, Ray. But what Prof. Levenson just cited is an interesting case, because the current director of the FBI, Bob Mueller, was, at one point in his career, sent from Washington to be the United States attorney in San Francisco to put an office that lacked sufficient direction, in the view of the main Justice Department, get it going in a stronger, more vigorous way.

And my understanding is that's the intention this time, as well, with respect to San Francisco. And there have not been great criticisms that have been leveled, at least with respect to that particular office.

San Diego has been a little bit noisier situation. But, again, it doesn't appear that it's reflective of anything other than, in that case, succumbing to criticism from the outside.

Prof. Levenson does cite one case, where Paul McNulty agreed that it was a political motivation. The fellow who was made the interim United States attorney was somebody who I think was considered to be a political future who they wanted to give a little exposure to. He had certainly more experience starting out than the incumbent had when he started out. And the process and the dispute of this probably has cost that gentleman any real shot at a permanent position.

So it's politics. I don't know that it's healthy or unhealthy politics. This is something that's committed to the executive branch. It is a political decision; it can be debated.

And I think, when you really get down to it, that's the season that we're in with the new congressional majority. They're certainly entitled to take a look at this. There ought to be oversight; there will be. But I can guarantee you, this is not going to be an issue come election time.

RAY SUAREZ: Professor, what would you be looking out for in these various federal districts, as these attorneys' offices change hands, to know whether this is malign or benign, if your worst fears are being realized?

LAURIE LEVENSON: That's a great question. I think a couple of things. One is that there are some of these offices who have some high visibility political corruption cases, and whether those continue or whether those are downplayed under a new administration is a big question.

The second thing is whether the Justice Department holds true to its word, whether they put up people who they're ready to put through the confirmation process, and also whether they paused to ask, "Well, maybe we should start that process rather than just going the interim route. Maybe we should see if we can get our priorities in place, without taking people who have a well-operating office, removing them, and creating these questions among the AUSAs who work for them."

RAY SUAREZ: Prof. Levenson, Stuart Gerson, thank you both.

LAURIE LEVENSON: Thank you.