View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Duke Law Scholarship Repository Rethinking the Identity and Role of United States Attorneys Sara Sun Beale* The reputation and credibility of the Department of Justice were badly tarnished during the Bush administration. This article focuses on concerns regarding the role of partisan politics.1 Critics charge that during the Bush administration improper partisan political considerations pervasively influenced a wide range of decisions including the selection of immigration judges, summer interns and line attorneys; the assignment of career attorneys to particular details; the evaluation of the performance of United States Attorneys; and the decision whether and when to file charges in cases with political ramifications. The Inspector General’s lengthy and highly critical reports have substantiated some of these charges.2 The first two Inspector General (IG) Reports found that the Department improperly used political criteria in hiring and assigning some immigration judges, interns, and career prosecutors.3 The third report * Charles L.B. Lowndes Professor, Duke Law School, Durham, N.C. I would like to acknowledge the outstanding research assistance provided by Michael Devlin, Meghan Ferguson, Amy Taylor, and Molly Brownfield, and the helpful comments of Norman Abrams, Albert Alschuler, Rachel Barkow, Anthony Barkow, Candace Carroll, Colm Connolly, Ronald Goldstock, Bruce Green, Lisa Kern Griffin, James Jacobs, Susan Klein, Daniel Richman, and Adam Safwat. Of course any errors are my own. 1 Other serious concerns about the Department have been raised, particularly in connection with its role in the war on terror. For example, the Department has been the subject of intense criticism for legal analysis that led to the authorization of brutal interrogation techniques for detainees. See, e.g., Norman W. Spaulding, Professional Independence in the Office of the Attorney General, 60 STAN. L. REV. 1931, 1969–70 n.204 (2008) (collecting examples of the “burgeoning literature” on the work of lawyers in the Bush administration who offered formal opinions that purported to confer authority to torture and noting that most of the scholarship is “roundly condemnatory”). 2 The reports that I call the Inspector General Reports were prepared jointly by the IG and the Department of Justice Office of Professional Responsibility (OPR). These reports are compiled in AN INVESTIGATION INTO THE REMOVAL OF NINE U.S. ATTORNEYS IN 2006 (2008), http://www.usdoj.gov/oig/special/s0809a/final.pdf [hereinafter IG REPORT ON REMOVAL OF U.S. ATTORNEYS]; AN INVESTIGATION OF ALLEGATIONS OF POLITICIZED HIRING BY MONICA GOODLING AND OTHER STAFF IN THE OFFICE OF THE ATTORNEY GENERAL (2008), http://www.usdoj.gov/oig/special/s0807/final.pdf [hereinafter IG REPORT ON POLITICIZED HIRING IN OFFICE OF AG]; and AN INVESTIGATION OF ALLEGATIONS OF POLITICIZED HIRING IN THE DEPARTMENT OF JUSTICE HONORS PROGRAM AND SUMMER LAW INTERN PROGRAM (2008), http://www.usdoj.gov/oig/special/s0806/final.pdf [hereinafter IG REPORT ON HONORS PROGRAM AND SLIP]. 3 See IG REPORT ON HONORS PROGRAM AND SLIP, supra note 2, at 98 (concluding that in 2002 “the data indicated that the Committee considered political or ideological affiliations when deselecting candidates” for entry level attorney positions and summer internships, and in 2006 “the 369 370 OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 6:369 recommended that a special prosecutor be appointed to determine whether one U.S. Attorney was removed in an effort to influence voter fraud and corruption prosecutions.4 As to the other U.S. Attorney dismissals, the report found that they were done in an astonishingly slipshod fashion with little or no oversight (and no candor during the Congressional and IG investigations), but in general, not for improper reasons.5 There has been no resolution of other charges, made in Congressional hearings and in the media, that political considerations improperly influenced the course of other individual prosecutions, and that overall the Department’s prosecutions were disproportionately focused on Democratic office holders, party activists, and donors. The Inspector General has proposed specific responses to some of the problems identified in his reports, but these recommendations go principally to the hiring and assignment of immigration judges, summer interns, and career attorneys.6 Those are the easy issues because there is considerable agreement that politics should play no role at all in decisions concerning career and nonpartisan positions. The only challenge is to make sure that this principle is reiterated and enforced. The more difficult issue concerns the proper role of politics at the level of the U.S. Attorneys. The position of U.S. Attorney is, in a formal sense, plainly political: U.S. Attorneys are appointed by the president with the advice and consent of the Senate,7 and they serve at the president’s pleasure.8 Once selected, however, U.S. Attorneys are expected to leave behind partisan politics, adhering to Screening Committee inappropriately used political and ideological considerations to deselect many candidates”); IG REPORT ON POLITICIZED HIRING IN OFFICE OF AG, supra note 2, at 135–37 (finding political considerations were used to evaluate candidates for certain career positions, including AUSA positions, and in the selection or approval of career attorney candidates for temporary details, and that the “most systematic use of political or ideological affiliations occurred” in the selection of immigration judges). 4 IG REPORT ON REMOVAL OF U.S. ATTORNEYS, supra note 2, at 186–200, 357–58 (recommending that an independent counsel be appointed to investigate the removal of U.S. Attorney David Iglesias to determine whether there were attempts to pressure him to accelerate his charging decision in a corruption case or to initiate voter fraud investigations to affect the outcome of an election, and to determine whether criminal conduct, including false statements and obstruction of justice, had occurred). 5 Id. at 325, 356–58 (stating that removal process was “fundamentally flawed,” conducted in a fashion that was “unsystematic and arbitrary . with little oversight,” and noting that Congressional testimony and statements by the Attorney General and other Department officials were “inconsistent, misleading, and inaccurate in many respects”). 6 IG REPORT ON HONORS PROGRAM AND SLIP, supra note 2, at 101–02 (recommending revision of internal manuals, statements, and orders; additional briefing of political appointees; and increased vigilance to ensure that political affiliations are not used as a criteria for evaluating candidates). 7 28 U.S.C. § 541(a) (2006). 8 28 U.S.C. § 541(c) (2006). 2009] RETHINKING THE IDENTITY AND ROLE OF U.S. ATTORNEYS 371 the norm of prosecutorial neutrality. In this context, prosecutorial neutrality means, at a minimum, that the decision whether and when to bring charges in individual cases should be made without regard to either the political affiliation of the individuals involved or the resulting benefit (or harm) to either political party.9 But one might argue that U.S. Attorneys who are selected by an overtly political process and supervised by other political actors will naturally be influenced in their decisions whether and when to prosecute, and that they will be likely to bring cases to embarrass or disable political opponents, but fail to bring charges against officials in their own party or their supporters. Some critics think that is exactly what occurred during the Bush administration, and during earlier administrations as well.10 Moreover, the nature of contemporary federal criminal law magnifies the potential for mischief, because the definitions of the relevant offenses are both broad and vague, giving the prosecutors extraordinarily wide discretion on which there are few checks.11 The current structure and the problems encountered during the Bush administration raise the question whether the role of the U.S. Attorney should be reconceptualized. If partisan political considerations should not influence prosecutorial decisions, why not insulate the position of U.S. Attorney from politics by redefining it as a nonpartisan career appointment? There are structural reasons to think that this would be desirable because it would place the Justice Department’s structure in rough parity with that of other cabinet departments and reduce the strain on the confirmation process at the beginning of a new presidential administration. The strain on the confirmation process could also be reduced by recharacterizing the U.S. Attorneys as political appointees not subject to Senate confirmation. The current structure of the Justice Department is anomalous. In comparison with other agencies, the Department has a disproportionate number of presidential appointees subject to Senate confirmation. During the Bush administration from 2001 to 2008, the Senate confirmed 134 appointees to positions in the Justice Department, including the U.S. Attorneys for the 93 federal judicial districts.12 In comparison, during the same period the Departments of Treasury and Defense each had fewer than 30 presidential appointees confirmed by 9 For a general discussion of the various elements of prosecutorial neutrality and the difficulty of applying that concept, see Bruce A. Green & Fred C. Zacharias, Prosecutorial Neutrality, 2004 WIS. L. REV. 837. See also id. at 869 (stating that one element of prosecutorial