From the NYT:

The Nation
For Federal Prosecutors, Politics Is Ever-Present

By ADAM LIPTAK
Published: March 18, 2007
EVER since he fired eight federal prosecutors, Attorney General Alberto Gonzales has been criticized for injecting politics into a realm where it doesn't belong.

But the people he fired, United States attorneys, have always inhabited a world that is an odd hybrid of politics and purity.

They are political appointees who serve at the pleasure of the president, and they often use their jobs as political steppingstones. Rudolph W. Giuliani, a candidate for the Republican presidential nomination, started his political career as the United States attorney in Manhattan.

And United States attorneys are, as the top federal law enforcement officials in the nation's 94 judicial districts, cogs in a vast executive-branch bureaucracy, subject to its rules and charged with carrying out its shifting policies, which are themselves influenced by politics.

The Reagan administration, for instance, liked to prosecute pornography; the Clinton administration cared about guns; and the current administration has pushed for more capital prosecutions.

"U.S. attorneys are the branch offices of the Department of Justice," said Douglas W. Kmiec, a former Justice Department official in the administrations of Presidents Ronald Reagan and George H. W. Bush. "It's an employer-employee relationship."

As a legal matter, at least, that means the Justice Department was within its rights in the recent dismissals, said Rory Little, a former Justice Department official in the Clinton administration who is on an American Bar Association task force on prosecutorial ethics.

"It has always been a patronage position," Mr. Little said. "Can the president fire a U.S. attorney for any reason at all? The answer is yes."

At the same time, United States attorneys are by custom insulated from politics and have, except when administrations change, great job security. They are meant to make individual prosecutorial decisions based only on the facts of the cases before them, without regard to political consequences.

As special counsel in the prosecution of I. Lewis Libby Jr., Patrick J. Fitzgerald, the United States attorney in Chicago, pursued a narrowly focused case without apparent concern for its political ramifications.

Speaking to United States attorneys in 1940, Attorney General Robert H. Jackson, who later became a distinguished Supreme Court justice, said the power of the position is enormous and easily perverted.

"The prosecutor has more control over life, liberty and reputation than any other person in America," Mr. Jackson said. That power, he said, must be shielded from politics and even from the Department of Justice.

Mary Jo White, who served as United States attorney for the Southern District of New York, in Manhattan, in the Clinton administration and the current one, said there was a great value in autonomy. United States attorneys, she said, must be trusted to understand local problems and to work with their state and local counterparts without interference from Washington.

"The Southern District is the sovereign district of New York," Ms. White said. "You know how I come out on that."

The recent dismissals upset the cultural order of things. While wholesale dismissals as administrations turn over are not unusual, and individual United States attorneys have occasionally been pushed out over scandals, the recent mass dismissal, on vague and shifting rationales, is unheard of in living memory.

"Seemingly very well regarded U.S. attorney have been asked to leave," Ms. White said of the dismissals, "without any evidence of misconduct or seeming cause."

Wise or not, though, to the extent that the dismissals were motivated by a desire to push the administration's policies — on immigration and drugs, for instance — they were within the executive branch's legal authority.

Charles Fried, a law professor at Harvard who served as solicitor general in the Reagan administration, said that United States attorneys should be subject to discipline and dismissal for failing to carry out the administration's policies and priorities.

They may also, he said, be fired for incompetence.

"Indeed, this administration had been criticized for not doing that readily enough," he said, citing the White House response to Hurricane Katrina. On the other hand, targeting political enemies for prosecution is plainly out of bounds. "That is a misuse of prosecutorial authority, period," Professor Fried said.

John R. Schmidt, a Justice Department official in the Clinton administration, said, "The fundamental difference should be the difference between policy and anything that relates to prosecution of individual cases."

The line is not always easy to find. In the administration's push to pursue cases of voting fraud, for instance, Professor Fried said, "It is hard to tell the politics apart from the principle."

Several former United States attorneys and Justice Department officials said recent inquiries by members of Congress about the status of particular prosecutions represented a startling breach of protocol, if not worse. Alan Vinegrad, a former United States attorney in Brooklyn in the current administration, said receiving such a call would be deeply troubling.

"To me what would be inappropriate," Mr. Vinegrad said, "is a politician from my district calling me and asking me in substance why I'm not moving more aggressively on some politician on the other side of the aisle and then taking actions to have me removed from my job if I don't."

Whatever motivated the recent firings, they are of a piece with the administration's efforts to centralize power in Washington.

"A crisis like the Sept. 11 attacks creates the occasion for a monolithic model for law enforcement and national security," said Peter S. Margulies, a law professor at Roger Williams University. "It creates a lot of pressure for a top-down model. That includes even traditionally autonomous actors like U.S. attorneys."

A law pushed through last year as part of the U.S.A. Patriot Act gave the Justice Department even more power. In the past, United States attorneys appointed to fill vacancies had to be confirmed by the Senate within 120 days. If not, a local federal judge filled the position.

Now such interim United States attorneys, chosen solely by the Justice Department, can serve indefinitely.

The lasting consequences of the recent dismissal will be, perhaps fittingly, as political metaphor, Mr. Little said. "Historical episodes are what we tend to base our political precedents on," he said.

Recalling the so-called Saturday night massacre, in which an attorney general resigned rather than follow President Richard Nixon's order to fire a Watergate special prosecutor, Mr. Little said, "this may end up drawing a more independent line between the White House and U.S. attorneys."
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