Do the Firings of U.S. Attorneys Have a Precedent?

This week the Bush Administration’s firing of eight U.S. attorneys continued to make headlines. In the face of bipartisan criticism of the dismissals, the Attorney General’s Office and the White House insisted that the firings were routine procedure and based on historical precedent.

After a speech in Arkansas on March 8, presidential adviser Karl Rove declared, “these attorneys serve at the pleasure of the president and traditionally are given a four-year term. And Clinton, when he came in, replaced all 93 U.S. attorneys.” In response to those making “a political stink” over the firings, Rove asked, “did they have the same reaction if they were in Congress in the 90’s, or did they have the same reaction if they were in the 80’s? Because every president comes in, appoints United States attorneys and then makes changes over the course of their time.”  

A week later, according to an article by the Associated Press, the Republican strategist reiterated his point to an audience at Troy University. “I’d simply ask everybody who’s playing politics with this be asked to comment about the removal of 123 U.S. attorneys during the previous administration and see if they had the same super-heated political rhetoric.”

The position that the firings were unremarkable and based on a precedent set by previous administrations has been taken up by White House supporters and some segments of the press. A Wall Street Journaleditorial on March 14 stated, “There was nothing wrong with replacing the eight attorneys, all of whom serve at President’s pleasure. Prosecutors deserve supervision like any other executive branch appointees.” The article also compared the current “supposed scandal” with the Clinton Administration’s “unprecedented” dismissal of U.S. attorneys upon taking office. “When it comes to ’politicizing’ justice,” the Journal charged, “… the Bush White House is full of amateurs compared to the Clintons.”

But the controversy involving the Bush Administration’s role in dismissing the U.S. attorneys has drawn a chorus of criticism and political opposition. Even a few "victims" of Clinton’s sweeping dismissals in 1993 have publicly questioned the Bush White House’s role in the last batch of firings.

Former U.S. Attorney Jean Bradshaw, a Republican, told the Kansas City Star, “Individual case decisions can’t be tainted by politics.” Another former Republican appointee, Lee Thompson, suggested that even though “the position of U.S. attorney is a presidential appointment and purely political,” the independence of the judiciary should not be jeopardized. “What is the line between policy directives and interference in specific cases?” Thompson questioned. “I think it’s a legitimate concern.”

In response to Rove's claim that the most recent attorney firings were "normal and ordinary," critics have argued that the dismissals were of a fundamentally different nature than those of previous administrations and that the White House’s role smacks of political retribution.

Mary Jo White, a U.S. attorney in New York from 1993 through 2002, offered these remarks to www.thinkprogress.org: “You serve at the President’s pleasure, no question about that. …However, throughout modern history, my understanding is, you did not change the U.S. attorney during an administration, unless there was some evidence of misconduct or other really quite significant cause to do so.”

The White House had claimed that the firings were based on poor job performance ratings. But that explanation was called into question when it was uncovered that the most recent performance reviews of several dismissed attorneys were generally positive. Recent revelations from within Attorney General Gonzales’s office suggest that the firings were politically motivated and implemented to ensure both loyalty to the administration and adherence to its policy positions.

The Washington Post described the difference between the latest firings and previous dismissals in a March 14 article: “Although Bush and President Clinton each dismissed nearly all U.S. Attorneys upon taking office, legal experts and former prosecutors say the firing of a large number of prosecutors in the middle of a term appears to be unprecedented and threatens the independence of prosecutors.”

According to Paul Frymer, a professor of political science at the University of California, Santa Cruz, “the difference is that Clinton made changes when he immediately came into office, not in response to specific attorney actions that were confronting elements of his own administration. That’s the controversy with Bush, not the general authority to hire/fire attorneys, but whether he can punish attorneys who confront his administration.”

While the Bush administration’s role in the firings continues to generate political disagreement and debate, the controversy also raises questions about the political appointments of attorneys in general. Joel Kassiola, Dean of the political science department at San Francisco State University, remarked, “On the substance of the issue, I think the matter should turn less on what previous administrations have done – including the Clinton example – than the idea that the criminal justice system should be insulated from the typical partisan politics.”

“The idea that Presidents,” Kassiola continued, “would see the appointments of Federal Attorneys as positions for patronage or rewards for campaign gifts and not the best person for the job will discourage the public’s already low opinion of the government.”