Putting Justice Back in the Department
The Attorney General and his subordinates recklessly undermined trust in the fair administration of justice, and we cannot afford the loss.
The administration's dismissal of eight U.S. attorneys raises issues of prosecutorial fairness, the permissible roles of policy and politics, and the maintenance of citizen trust in the rule of law. From each of these perspectives, on the basis of the facts as we know them today, the dismissals are indefensible.
No one in the administration would argue that it is appropriate to use federal prosecution to punish political enemies in situations where others would not be prosecuted at all. Administration supporters argue something different: that it is proper to dismiss a U.S. attorney for failing to follow priorities set by the Attorney General. "Wouldn't Attorney General Robert Kennedy," the argument goes, "have had the right to dismiss a Southern U.S. attorney who failed to bring a case involving the vicious murder of a civil rights worker in the early 1960's?" And, defenders of the administration continue, "When the subject is something like illegal registration of voters, one party's policy priorities may have very favorable political implications for that party as well; yet, that shouldn't preclude making that policy into a prosecutorial priority."
If one had to assess whether these firings were motivated primarily by impermissible politics or by policy, the case for politics would be very strong. Priorities are almost always effectuated by assignment of more agents and more prosecutors to a particular area, not by second-guessing individual cases. If priorities are to be effective, they must be announced; voter fraud (as opposed to public and corporate corruption) was not announced when Attorney General Gonzales outlined his priorities in early 2006. In any event, a necessary initial response to a U.S. Attorney's failure to follow the Attorney General's priorities would be a discussion or a warning; there seems to have been none here. Moreover, the White House would not have much to do with assessing whether the Attorney General's policy priorities were being followed; the fingerprints of the White House are very visible in the case of the firings by Attorney General Gonzales. Finally, the firings took place in the context of partisan hiring at the Department of Justice that went all the way down to the career service (and that is now the subject of an expanded internal investigation).
But the wrongfulness of the actions does not depend on these facts. They would be wrong even if it were more difficult to distinguish policy priorities from political demands. Policy as well as politics is and always should be trumped by two matters of fairness. First, it is never proper to bring a prosecution without an adequate factual basis to believe that the elements of the crime can be proved and thus that a conviction is likely. It is thus never appropriate to discipline a prosecutor in order to emphasize a policy without knowing and showing that the evidence needed for conviction was there. Prosecution is not itself a form of curbstone justice; it is how we bring a case to trial on the evidence. second, the prosecutor must consider the fairness of using his discretion to pursue a criminal remedy in the particular situation. Thatjudgment as to fairness doesn't vary with priorities either.
Both of these fact-based determinations have long been part of Department of Justice guidelines and of the ABA Standards for Criminal Justice: Prosecution and Defense Function. …