Alberto Gonzalez's coup d'etat

Alberto Gonzalez's coup d'etat

The

Constitution be damned, the attorney general has seized control of U.S. attorney

appointments for partisan purposes.

By Joe Conason
Feb. 9,

2007

Under any circumstances, the Bush administration's sudden,

explicitly political dismissal and replacement of United States attorneys in

judicial districts across the country would be very troubling - both as a

violation of American law enforcement traditions and as a triumph of patronage

over competence.

But as the story behind these strange decisions unfolds,

a familiar theme is emerging. Again, the White House and the Justice Department

have been exposed in a secretive attempt to expand executive power for partisan

purposes. And again, their scheming is tainted with a nasty whiff of

authoritarianism.

There is much more at stake here than a handful of

federal jobs.

Leading senators of both parties are disturbed by these

incidents because U.S. attorneys - the powerful officials appointed by the

president to prosecute federal crimes and defend federal interests in each of

the nation's judicial districts - are supposed to be as nonpartisan as possible.

Democrats mostly appoint Democrats and Republicans mostly appoint Republicans,

but the U.S. attorneys are usually chosen with the advice and consent of the

senators from their home states, and then confirmed by the full Senate, with a

decent respect for skill and experience as well as political

connections.

The reason for this appointment process was simple: These

prosecutors must police the politicians. They are expected to guard the nation's

judicial system against the varieties of political abuse that are typical of

authoritarian systems. They are granted a substantial degree of independence

from the government in Washington, including the attorney general who functions

as their boss.

To ensure that no U.S. attorney could be fired on a whim

and replaced with a malleable hack, the relevant statute required that whenever

a vacancy occurred in midterm, the replacement would be appointed by federal

circuit judges rather than by the president. Getting rid of irksomely honest and

nonpartisan prosecutors was difficult if not impossible.

But that

wholesome safeguard was breached in December 2005, when the Senate renewed the

Patriot Act. At the behest of the Justice Department, an aide to Sen. Arlen

Specter slipped a provision into the bill that permitted the White House to

place its own appointees in vacant U.S. attorney positions permanently and

without Senate confirmation. So silently was this sleight of hand performed that

Specter himself now claims, many months later, to have been completely unaware

of the amendment's passage. (Of course, it would be nice if the senators

actually read the legislation before they voted, particularly when they claim to

be the authors.)

The staffer who reportedly performed this bit of dirty

work is Michael O'Neill, a law professor at George Mason University and former

clerk for Supreme Court Justice Clarence Thomas. As the Washington Times

explained when O'Neill was appointed as the Senate Judiciary Committee's chief

counsel, many observers believed that Specter had hired him to reassure

conservatives of his loyalty to the Bush White House. Right-wing distrust had

almost ousted the Pennsylvania moderate from the Judiciary chairmanship, and

appointing O'Neill was apparently the price for keeping that

post.

Evidently O'Neill rewarded Specter by sneaking through legislation

to deprive him and his fellow senators of one of their most important powers, at

the behest of an attorney general intent on aggrandizing executive power. The

results of this backstage betrayal - now playing out in a wave of politicized

dismissals and hirings - were perfectly predictable and utterly

poisonous.

Carol Lam, the U.S. attorney in San Diego who successfully

prosecuted the sensationally crooked Republican Rep. Randy "Duke" Cunningham,

was fired for no known reason while she is still pursuing important leads in

that historic case. Cunningham is supposed to be cooperating, but if Bush

replaces her with a partisan stooge, he may be able to keep his secrets. Bud

Cummings, the respected U.S. attorney in Little Rock, Ark., was canned to make

room for a Republican opposition research operative and Karl Rove acolyte named

Timothy Griffin. Could that conceivably have anything to do with Sen. Hillary

Rodham Clinton's presidential candidacy? Paul Charlton, the U.S. attorney in

Arizona, was thrown out while investigating allegations of corruption against

Republican Rep. Rick Renzi.

And John McKay, the U.S. attorney in Seattle

whose diligence has been praised by judges and lawyers of both parties, was

simply ordered to quit last December, for no obvious reason. Although McKay's

last evaluation by the Justice Department was excellent, the attorney general

insists that all of these curious firings were due to "performance"

issues.

Any such self-serving statements emanating from Alberto Gonzales

should always be greeted with appropriate skepticism. So should the claim that

he sought to seize control of interim U.S. attorney appointments because of his

concern over the "separation of powers" issues supposedly inherent in judges'

appointing prosecutors. As the McClatchy Newspapers reported on Jan. 26,

Gonzales has named at least nine "conservative loyalists from the Bush

administration's inner circle" to positions vacated by professional

prosecutors.

On Thursday, the Senate Judiciary Committee voted to restore

the old nonpartisan system for replacing U.S. attorneys and to require Senate

confirmation of all new appointees. The full Senate and the House of

Representatives should do likewise, despite Republican opposition, but that is

not enough. The Senate Democrats should continue to probe the attorney general's

little coup d'état and all of the resulting appointments. That is the best way

to discourage future usurpations - and to frustrate whatever skulduggery was

afoot this time.

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