Gon­za­les v. Pros­e­cu­tors

The Washington Post Sunday - - Out­look -

Tbe­come sec­re­tary of trans­porta­tion and then briefly chief of staff to Pres­i­dent Ge­orge H.W. Bush, while Thomas P. Sul­li­van, the U.S. at­tor­ney ap­pointed to suc­ceed him, proved to be an­other in­de­pen­dent and fear­less pros­e­cu­tor. Among his many achieve­ments was ini­ti­at­ing Op­er­a­tion Grey­lord, which un­earthed a pat­tern of cor­rup­tion in the state courts in Chicago.

Sul­li­van’s ten­ure ce­mented a tra­di­tion of po­lit­i­cal in­de­pen­dence in the day-to-day con­duct of the U.S. at­tor­ney’s of­fice in Chicago, a let-the-chips-fall-wherethey-may at­ti­tude in the pur­suit of ev­i­dence and in­ves­ti­ga­tions that per­sists un­der cur­rent U.S. at­tor­ney Patrick J. Fitzger­ald, who, like Skin­ner and Sul­li­van, has in­dicted and in­ves­ti­gated both Repub­li­cans and Democrats.

Has that tra­di­tion been vi­o­lated? In de­fend­ing the ad­min­is­tra­tion in the cur­rent fir­ing scan­dal, its sup­port­ers have re­lied on the es­tab­lished law that al­lows the pres­i­dent to place loy­al­ists in pol­i­cy­mak­ing po­si­tions in the Jus­tice De­part­ment and in U.S. at­tor­ney’s of­fices na­tion­wide, where they can at­tend to the de­part­ment’s pri­or­i­ties. But that prin­ci­ple is only half of the le­gal yin and yang that gov­erns the con­duct of U.S. at­tor­neys.

The U.S. at­tor­ney, in all 93 fed­eral dis­tricts, has been a fig­ure of unique au­ton­omy, whose right to pur­sue in­di­vid­ual cases as she or he sees fit, within the broad frame­work of Wash­ing­ton’s pol­icy di­rec­tives, has been largely un­ques­tioned for gen­er­a­tions and is rooted in the of­fice’s lo­cal re­spon­si­bil­i­ties.

The pros­e­cu­tion of crim­i­nal cases is by its na­ture a lo­cal event. The Con­sti­tu­tion re­quires that crim­i­nal tri­als be held in the state where the crime oc­curred and that of­fenses be in­ves­ti­gated lo­cally through a grand jury, ad­vised by the U.S. at­tor­ney. The Fed­eral Rules of Crim­i­nal Pro­ce­dure, es­tab­lished by the Supreme Court and Congress, also pro­vide that no in­dict­ment may be re­turned with­out the sig­na­ture of “an at­tor­ney for the gov­ern­ment.” In the­ory, the at­tor­ney gen­eral could at­test to the thou­sands of in­dict­ments re­turned ev­ery year, but the sheer vol­ume means that in prac­tice it is the U.S. at­tor­ney in each dis­trict who re­views and signs off on each pros­e­cu­tion. The U.S. at­tor­ney also has the power to ask the court to dis­miss any in­dict­ment he de­cides not to pur­sue.

Be­cause U.S. at­tor­neys have such broad le­gal author­ity, the Jus­tice De­part­ment — un­der both po­lit­i­cal par­ties — has rec­og­nized that they can­not be mi­cro­man­aged in their pur­suit of in­di­vid­ual cases. Notwith­stand­ing the Bush ad­min­is­tra­tion’s protests about its vested right to dis­miss any U.S. at­tor­ney, the Jus­tice De­part­ment’s own mis­sion state­ment for the of­fice says: “Each United States At­tor­ney is the chief fed­eral law en­force­ment of­fi­cer of the United States within his or her par­tic­u­lar ju­ris­dic­tion. . . . Each United States At­tor­ney ex­er­cises wide dis­cre­tion in the use of his/ her re­sources to fur­ther the pri­or­i­ties of the lo­cal ju­ris­dic­tions and needs of their com­mu­ni­ties.” he fed­eral crim­i­nal jus­tice sys­tem has thus evolved with shared power: De­vel­op­ing na­tional law en­force­ment pol­icy is the task of the Jus­tice De­part­ment, and the re­spon­si­bil­ity for ap­ply­ing that pol­icy and fol­low­ing in­di­vid­ual cases and in­ves­ti­ga­tions wher­ever the ev­i­dence leads falls to the U.S. at­tor­ney for each fed­eral dis­trict. The dis­tinc­tion be­tween pol­icy and case man­age­ment is fre­quently blurry and has of­ten led to sparks be­tween the de­part­ment and the U.S. at­tor­neys, no mat­ter which party is in power.

Gen­er­ally speak­ing, Wash­ing­ton wants to su­per­vise more than U.S. at­tor­neys care to al­low. For ex­am­ple, the Jus­tice De­part­ment has long re­quired that pros­e­cu­tions un­der RICO, the fed­eral rack­e­teer­ing statute, not be ini­ti­ated with­out de­part­men­tal ap­proval from Wash­ing­ton. This is to en­sure that the de­vel­op­ment of RICO law is uni­form na­tion­wide. But the author­ity is some­what anoma­lous, be­cause the un­der­ly­ing charges that form the ba­sis of a RICO case can be brought by a pros­e­cu­tor with­out Wash­ing­ton’s say-so. Dur­ing my time as an as­sis­tant U.S. at­tor­ney, we tended to re­sent Wash­ing­ton’s role in RICO cases and of­ten sub­mit­ted them for ap­proval only at the last minute.

Fur­ther­more, both Jus­tice and the U.S. at­tor­ney’s of­fices ad­here to an un­easy un­der­stand­ing about the kinds of ob­jec­tions Wash­ing­ton can raise. Jus­tice is within its rights, for ex­am­ple, in say­ing, “We don’t think the in­ci­dents al­leged in the in­dict­ment amount to a pat­tern of rack­e­teer­ing un­der the law,” but not, “We think the de­fen­dant’s church ac­tiv­i­ties should mil­i­tate against pros­e­cu­tion.”

This is not to say that Wash­ing­ton does not suc­ceed in chang­ing the way things are done in the U.S. at­tor­ney’s of­fices. Un­der the first Pres­i­dent Bush, a broad ini­tia­tive was be­gun to crush gangs and drug lords through the Or­ga­nized Crime Drug En­force­ment Task Force (OCDETF), which was sup­posed to op­er­ate in ev­ery U.S. at­tor­ney’s of­fice. The war on guns and drugs had al­ways been seen as the re­spon­si­bil­ity of lo­cal pros­e­cu­tors, and the news that the fed­eral courts were now go­ing to be the site of street-crime pros­e­cu­tions was not greeted warmly by all fed­eral pros­e­cu­tors and fed­eral judges.

In Chicago, the idea of ded­i­cat­ing a sig­nif­i­cant por­tion of the U.S. at­tor­ney’s re­sources to this pur­suit threat­ened more tra­di­tional mis­sions such as pub­lic cor­rup­tion cases, and I re­call months of del­i­cate ne­go­ti­a­tions be­tween U.S. At­tor­ney Dan K. Webb and the de­part­ment to pre­serve na­tional and lo­cal pre­rog­a­tives. In the end, Webb worked out an agree­ment whereby a per­cent­age of many as­sis­tants’ work time, as op­posed to a fixed num­ber of as­sis­tants, would be ded­i­cated to OCDETF mat­ters.

In this back and forth be­tween Wash­ing­ton and the field of­fices, pub­lic cor­rup­tion cases — gen­er­ally mean­ing bribery of lo­cal or fed­eral of­fi­cials — have al­ways been a spe­cial pre­serve. That is be­cause most state and county pros­e­cu­tors are elected, while U.S. at­tor­neys are ap­pointed by the pres­i­dent (and ap­proved by the Se­nate). As such, U.S. at­tor­neys are seen as less vul­ner­a­ble to lo­cal po­lit­i­cal in­flu­ences to pur­sue or not pur­sue cor­rup­tion in­quiries. That is why the charge that the Bush Jus­tice De­part­ment dis­missed one or more of the re­cently fired U.S. at­tor­neys be­cause of the way they han­dled cor­rup­tion cases touched a nerve.

For decades, un­der Repub­li­cans and Democrats, the Jus­tice De­part­ment has fully sup­ported cor­rup­tion in­ves­ti­ga­tions with­out re­gard to their po­lit­i­cal con­se­quences, as it did re­cently in the case of lob­by­ist Jack Abramoff. The direst fear raised by the pros­e­cu­tor fir­ings is that the Bush ad­min­is­tra­tion, rec­og­niz­ing the po­lit­i­cal dam­age done by the Abramoff case and the other pros­e­cu­tions it spawned, de­cided to shoot across the bows of the U.S. at­tor­neys to pre­vent sim­i­larly harm­ful pros­e­cu­tions from tak­ing place be­fore the 2008 elec­tions.

Whether or not that is true, the fir­ings surely rep­re­sent a newly in­tru­sive at­ti­tude in which the ad­min­is­tra­tion seems con­vinced of its right to de­mand true­be­liever ad­her­ence to pol­icy, as op­posed to grant­ing U.S. at­tor­neys their tra­di­tional dis­cre­tion to han­dle in­di­vid­ual cases with an eye to all the at­ten­dant facts and cir­cum­stances.

We will find out this week how much the at­tor­ney gen­eral will be able to al­lay the fears raised by the fir­ings. Whether or not he suc­ceeds in sav­ing his job, he will do the fed­eral law en­force­ment sys­tem and the na­tion a fa­vor if he en­dorses the tra­di­tional divi­sion of re­spon­si­bil­ity, re­serv­ing pol­icy for Wash­ing­ton and caseby-case pros­e­cu­to­rial de­ci­sion-mak­ing for the pros­e­cu­tors.



Sit and de­liver: Anita Hill pre­pared for the worst be­fore tes­ti­fy­ing about Clarence Thomas in 1991.

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