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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.
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