US Attorney Scandal

We all have a lot of questions, let me answer some for you.

1. Why are US Attorneys (USAs) Presidential appointees, and is that good?
Well, yes, it is, because one thing a President runs on is law enforcement.

For an oversimplified example, let's say you have two candidates, equal in all other ways, but they have two different views on immigration. President Adama says, "Let's go after the people hiring illegal immigrants!" and President Beauford says, "Let's go after the illegal immigrants and deport them!" If President A gets elected, his USAs will prosecute the employers as their main focus. If President B gets elected, his USAs will go after the workers and deport them. So it is important that USAs are Presidential appointees who implement the law enforcement priorities of the administration.

US Attorney candidates are reviewed and then confirmed by the Senate, just to make sure they're solid employees who aren't political zombies. (There's a wrinkle here too, we'll get to it later.)

2. Does being a political appointee automatically mean corruption?
Once they are hired, even if they're hired because they're political buddies with the Attorney General or the President, USAs are expected to act ethically and above the partisan fray.

Back to our example, USAs working for President A would go after corporations because that's what President A promised the people, but he would not let the party affiliations or political friendships of those corporations affect who he goes after and when. The CEO is hunting buddies with Cheney? Well, too bad. If he broke the law, the USAs is to prosecute him.

3. Don't all Presidents fire USAs? What's the big deal?
Because the USAs are political appointees, it is very common for a NEW President to come into office, clean out all the political appointees from the last administration, and put in all new ones. Remember our example: what if President A gets replaced by President B, who now wants to shift the focus of law enforcement to prosecuting illegal workers? He gets to do that. It's the main reason that the term for a US Attorney is 4 years; that way, their term runs out at the same time as the President's, and if the President isn't reelected, they can all toddle off on their merry way. If the President is reelected, he may choose to keep the US Attorney for another four-year term, or replace him to give someone else a chance, known as “resume padding”.

4. What is "resume padding"?
The US Attorney is a temp job, since it lasts 4-8 years. But one perk of the job is that it looks very good on a resume and helps people get elected to office later. Usually this is considered a side benefit to taking the job, which makes up for it being a temp job. However, if you're the GOP political guru, you might think that this is your chance to pad the resumes of a few more of your buddies by replacing some USAs in the middle of their term. There are 93 USAs, that's at least 93 resumes padded, and as many as 186 if you switch them out after their first four-year term. But in the middle of the second four-year term, you could kick out another 10 and squeeze in another 10 buddies for resume padding. This is also sometimes referred to by the Administration as, "giving someone else a chance".

This smells like a 2 day old fish (I don't eat fish, when do they start to smell?) but isn't actually illegal. If the current issue of the firing of these 8-10 USAs was about resume-padding, it would show a callous disregard for the office of US Attorney; it would be self-interest put before the interests of justice. However, since USAs “serve at the pleasure of the President”, this is not illegal, even if it isn’t very patriotic.

5. What about firing in the middle of a term?
It's not entirely unheard of to fire a US Attorney in the middle of his or her term. Like most jobs, there is a way to fire someone if you need to (for playing slap-and-tickle with the interns or taking three hour martini lunches). This is commonly referred to as "performance reasons".

Performance reasons can also extend beyond the “employee” aspects I've mentioned and into the gray area of political agenda. In our example, the US Attorney might get fired for ignoring the immigration issue altogether, and that would fall under "performance", because he is not serving the President’s law enforcement policy, which is his purpose. This is a slippery slope, and for those in the past who were fired for this type of political performance, their cases were well-documented and the AG would have been prepared to defend the firing. However, firings for performance, or for any reason in mid-term, are quite rare.

6. What about Senate confirmation?
As I said, the Senate is supposed to confirm the USAs to ensure that they won’t be corrupt partisan hacks.

This is also why the President doesn’t have a revolving door on the US Attorneys, why he doesn’t replace them constantly to pad as many resumes as possible. Senate confirmation hearings are long and arduous affairs that take up time and political capital. Replacing the whole slate of USAs at the start of your first term, replacing them all two years in, replacing them all at the start of your second term, and again another two years in translates to 372 Senate confirmation hearings. Yikes! This is why most Presidents put in their appointees and them leave them there, it’s too much trouble to change them all the time.

But when the Patriot Act was renewed, Sen. Specter's office (unbeknownst to him, he says) slipped in a provision in the dead of night that said that the USAs no longer needed Senate confirmation. (Since this scandal broke, this has been amended and now they do need confirmation again.) This would appear to have the effect of speeding up the process, and allowing staff changes without everyone looking over their shoulders. As we have recently learned, this also means that if the USA being considered has a checkered past, he is never vetted by the Senate. In the case of newly hired USA and former aide to Karl Rove Tim Griffin, the Senate might have discovered the dirty work he was doing for the Administration were he to be questioned under oath.

This would mean—and catch this, now—that criminal activity would be hidden from the prying eyes of the Senate, and the criminal himself is now a US Attorney! Who prosecutes the prosecutors? It should be the Attorney General, their boss, but if he was in on it, then who prosecutes? Why, no one! Isn’t this just evil genius?

7. OK, so what happened here?
The Attorney General’s office made up a list of USAs to be replaced in 2006. At first it seemed like there were 8 of these (which is why you might have heard about the famous “8”), but as we keep learning more it may be as high as 10 or more. No one knows who actually made the list, or how the names got on the list, since no one will cop to it. The AG did sign off on the final list himself, although he claims no knowledge of how it was developed. The replaced USAs were GOP appointees, and they were willing at first to go quietly into that good night. [Note: when considering to fire only a handful of USAs, Helen Myers suggested they replace the whole slate of 93. This was often referred to in the media as somehow more heinous, but I maintain her idea was politically clever: had they done so, the rest of the scandal would never have been uncovered.]

When the USAs were replaced, the Administration was asked about it. Instead of saying, “Well, you know, we can do whatever we want,” (which was true), they instead claimed it was for performance reasons. This angered the fired USAs, as it would you if your former boss started telling people he fired you for stealing pens when you didn’t. It was one thing to replace them for resume padding reasons, but quite another to besmirch their good names. The fired USAs began to speak out. Some of them, like David Iglesias, took to the media to deny the charges. For others, the lie was exposed through a quick look at the facts: California’s Carol Lam was also fired for “performance”—only she had just been awarded both the Director's Award for Superior Performance and the Attorney General's Award for Distinguished Service.

The Administration attempted to back off the performance claim and instead claim resume-padding. This just shows you how hinky everything was, that (the legal but unpatriotic) resume-padding was a better answer than the truth. Not only did this make them look bad, that they would use the office like a turnpike rest stop, but it also didn’t stick. The “performance” claim was already out there, too late to take it back.

It’s at this point that many people (both “red” and “blue”) shrugged their shoulders and said, “So what? The USAs ‘serve at the pleasure of the President’, he can do whatever he wants, Clinton fired all 93, big deal.” But as Randi Rhodes is fond of saying, “If there isn’t anything wrong here, THEN WHY IS EVERYONE LYING?” They lied about performance reasons, they lied about who drew up the list, the AG’s aide who testified to Congress took the Fifth and then got immunity to speak and still was cagey… Even if you can only see the smoke, there has to be a fire here somewhere.

8. Why were they really fired?
No one knows. It has been proven, through Congressional testimony and investigative reporting, that the charges brought against the USAs regarding their performance was false. We also learned that in most cases, the US Attorney clashed with the GOP for not playing politics. Iglesias refused to trump up charges against a Democratic candidate just before the election as he was pressured to do. Carol Lam had successfully prosecuted Republican Randy “Duke” Cunningham for conspiracy to commit bribery, mail fraud, wire fraud, and tax evasion; he was sentenced to eight-plus years in prison, and her investigation had turned to the 2nd man at the CIA, Dusty Foggo when she was fired. So while we don’t have any proof of why these USAs were fired—remember, no one will cop to building the list or explain how anyone got on the list—we do have proof that these USAs did not fail in performance. We can see they were fired for not toeing the party line, which is unethical at the very least. Again, we’re seeing the smoke even if we haven’t found the fire yet.

9. Tell me again why I care about this?
There are many reasons to care if you love your country, but there is one reason that has current signifigance:

One purview of the US Attorney is VOTER FRAUD. If the US Attorney is corrupt for the GOP and acting in a partisan fashion, he could either press false charges against Democratic candidates (and just by pressing charges, even if they are thrown out later, he can tank their shot at winning), or he could fail to charge GOP candidates with actual voter fraud.

Let me say that again. Picture fictional US Attorney John Smith. An election is coming up. He drums up false charges of voter fraud against the Democratic candidate, while helping to cover up actual voter fraud by the Republican candidate. And no one could, on the surface, accuse him of ignoring voter fraud, when, by gum, he’s been pounding the pulpit railing against voter fraud. Why, our boy John is on a voter fraud crusade! A classic case of misdirection.

Update: If you thought this post was a conspiracy theory, or you saw it as a warning about a slippery slope that we didn’t seem in any danger of sliding down, think again. David Palast of the BBC has uncovered an actual crime related to voter fraud, you will find my post on it here.

10. Why were there only 9 questions, when usually it’s the “top 10”?
Because I only had nine questions, smartass. And yet, I found a 10th. Happy now? :)

Update: I found another interesting article in Salon about how this scandal relates to voting fraud.