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Critics are alleging that the Justice Department’s recent firing of certain U.S. attorneys was motivated by politics. One of the former federal prosecutors brought corruption charges against a Republican congressman. Another prosecutor did not file corruption charges against Democrats within a timeframe that pleased a Republican senator.
Should our U.S. attorneys — the chief law enforcement officers in their districts — consider political party affiliation when deciding which cases to prosecute? No. Certainly not. Perhaps someone should enlighten the White House and officials at the Justice Department, because I don’t think they received the memo.
The position of U.S. attorney is a political appointment. There is no other way to look at it. Any person taking the job knows he or she serves at the pleasure of the president. For example, when President Clinton moved into the White House, he dismissed all 93 U.S. attorneys. It was his right to replace them, and other presidents before him did the same thing. After U.S. attorneys take the job, however, it should be understood that they are independent and separate from the political machine.
Several years ago, I taught trial skills with Judge Edward Prado of the U.S. Court of Appeals for the Fifth Circuit. He was appointed to the bench by President George W. Bush. There was a group of lawyers from China in the class. They were amazed that an official, after being appointed by the president, can rule against the administration. It was fascinating to watch these advocates grasp this concept. When they did, you could see their respect for our system elevate. What would those Chinese lawyers think of the firing of the U.S. attorneys? Would they maintain the level of respect they once had?
In the early days of this controversy, Attorney General Alberto Gonzales said the firings were performance-related and had absolutely nothing to do with politics. If that had been true, we could have closed the books and moved on to the next controversy. But then over 3,000 White House and Justice Department e-mails were released that belie the assertions made by Gonzales. In one message, a Justice Department official contacted the White House to discuss a “real problem” the agency was having with Carol Lam, the U.S. attorney in San Diego. This e-mail was sent a day after Lam notified the agency about search warrants obtained in the corruption case involving Rep. Randy “Duke” Cunningham, R-Calif.
One of the federal prosecutors who lost his job, David Iglesias of Albuquerque, described two phone calls he received in 2006, just before the November election. In a March 21 editorial he wrote for the New York Times, Iglesias said one call came from Rep. Heather Wilson and the other from Sen. Pete Domenici, both Republicans from New Mexico. Domenici is the senator who recommended Iglesias for the federal prosecutor job.
“Ms. Wilson asked me about sealed indictments pertaining to a politically charged corruption case widely reported in the news media involving local Democrats. Her question instantly put me on guard. Prosecutors may not legally talk about indictments, so I was evasive. Shortly after speaking to Ms. Wilson, I received a call from Sen. Domenici at my home. The senator wanted to know whether I was going to file corruption charges — the cases Ms. Wilson had been asking about — before November. When I told him that I didn’t think so, he said, ‘I am very sorry to hear that,’ and the line went dead.”
Regarding his decision not to prosecute alleged voter fraud, Iglesias had this to say: “As much as I wanted to prosecute the case, I could not overcome evidentiary problems. The Justice Department and the FBI did not disagree with my decision in the end not to prosecute.” A few weeks after the phone calls, the name David Iglesias was added to a list of U.S. attorneys who would be asked to resign.
There is a black cloud hanging over the Justice Department. It would be a shame to discover that politics plays a role in deciding whose case is sent to a grand jury. When this controversy ends, I hope Americans can feel confident that when it comes to prosecutions, evidence, not politics, is all that really matters.
A Defender’s Guide to Federal Evidence: A Trial Practice Handbook for Criminal Defense Attorneys
This Guide to Federal Evidence is the only federal evidence handbook written exclusively for criminal defense lawyers. The Guide analyzes each Federal Rule of Evidence and outlines the main evidentiary issues that confront criminal defense lawyers. It also summarizes countless defense favorable cases and provides tips on how to avoid common evidentiary pitfalls. The Guide contains multiple user-friendly flowcharts aimed at helping the criminal defense lawyer tackle evidence problems. A Defender’s Guide to Federal Evidence is an indispensable tool in preparing a case for trial.
Modern Digital Evidence & Technologies in Criminal Cases
Modern cases need modern defenses, and modern lawyers can't practice with an outdated playbook. This program is a contemporary training that identifies emerging technologies and digital evidence encountered in today's criminal cases and arms you with the tools necessary to combat expert witnesses, prosecutorial overreach, and an uneducated judge and jury. This comprehensive CLE program covers both general aspects of new technologies as well as practical courtroom application and legal challenges to the use of these new technologies.
Top Shelf DUI Defenses: The Law, The Science, The Techniques (2021)
If you are serious about being an effective DUI defense advocate, or if you’re considering adding DUI defenses to your portfolio, you need to know the latest scientific and legal strategies to optimize your success at trial. Learn from the best-of-the-best in the field in this unique CLE Program, updated for 2021.
Defending Modern Drug Cases (2021)
From challenging the arrest and seizure to picking a jury and cross-examining police officers, defense attorneys handling drug cases must be able to construct a defense that will increase the chances of the client getting a positive result for your client.
Effective motion practice, juror selection, and storytelling have never been more important. This seminar will introduce defense counsel to techniques that have been used at recent drug trials to rebut specific claims and overcome the emotion created in today’s criminal legal system.