IT'S UP TO GONZALES NOW

Is political loyalty more important to the Bush Justice Department
than prosecutorial independence?

To those of us who have been federal prosecutors, that's the critical
question facing Attorney General Alberto R. Gonzales as he testifies
before Congress this week on the firing of eight U.S. attorneys. We
know what's at stake: a balance of power between the Justice
Department and those who handle day-to-day prosecutions that is the
bedrock of federal law enforcement.

This balance of power was evident to me even when I worked as a law
clerk in the U.S. attorney's office in Chicago in the summer of 1977,
between my second and third years of law school. I can still recall my
first research assignment.

Following the example of his two predecessors, then-U.S. Attorney
Samuel K. Skinner had made pioneering use of the federal mail-fraud
statute to break through the endemic corruption of Chicago's
Democratic machine. But with Jimmy Carter's election the prior fall,
Skinner -- an appointee of President Gerald R. Ford -- was planning to
hand in his resignation. This had raised fears in the office that the
local Democratic pols would use their pull in Washington to manipulate
the appointment process and install a successor who would turn a blind
eye to all the fixing and fraud going on. Some of the lawyers wanted
me to find out if there was any legal basis for Skinner to hold on to
his job.

I had the answer by the end of the day: No. The U.S. attorney, like
most other members of the executive branch, serves at the pleasure of
the president. Assuming that Carter wanted to make a change -- and the
U.S. attorneys always left office when the White House fell into the
hands of the opposing party -- Skinner would return to the private
sector.

As it happened, things worked out well for everyone. Skinner
eventually went on to become secretary of transportation and then
briefly chief of staff to President George H.W. Bush, while Thomas P.
Sullivan, the U.S. attorney appointed to succeed him, proved to be
another independent and fearless prosecutor. Among his many
achievements was initiating Operation Greylord, which unearthed a
pattern of corruption in the state courts in Chicago.

Sullivan's tenure cemented a tradition of political independence in
the day-to-day conduct of the U.S. attorney's office in Chicago, a
let-the-chips-fall-where-they-may attitude in the pursuit of evidence
and investigations that persists under current U.S. attorney Patrick
J. Fitzgerald, who, like Skinner and Sullivan, has indicted and
investigated both Republicans and Democrats.

Has that tradition been violated? In defending the administration in
the current firing scandal, its supporters have relied on the
established law that allows the president to place loyalists in
policymaking positions in the Justice Department and in U.S.
attorney's offices nationwide, where they can attend to the
department's priorities. But that principle is only half of the legal
yin and yang that governs the conduct of U.S. attorneys.

The U.S. attorney, in all 93 federal districts, has been a figure of
unique autonomy, whose right to pursue individual cases as she or he
sees fit, within the broad framework of Washington's policy
directives, has been largely unquestioned for generations and is
rooted in the office's local responsibilities.

The prosecution of criminal cases is by its nature a local event. The
Constitution requires that criminal trials be held in the state where
the crime occurred and that offenses be investigated locally through a
grand jury, advised by the U.S. attorney. The Federal Rules of
Criminal Procedure, established by the Supreme Court and Congress,
also provide that no indictment may be returned without the signature
of "an attorney for the government." In theory, the attorney general
could attest to the thousands of indictments returned every year, but
the sheer volume means that in practice it is the U.S. attorney in
each district who reviews and signs off on each prosecution. The U.S.
attorney also has the power to ask the court to dismiss any indictment
he decides not to pursue.

Because U.S. attorneys have such broad legal authority, the Justice
Department -- under both political parties -- has recognized that they
cannot be micromanaged in their pursuit of individual cases.
Notwithstanding the Bush administration's protests about its vested
right to dismiss any U.S. attorney, the Justice Department's own
mission statement for the office says: "Each United States Attorney is
the chief federal law enforcement officer of the United States within
his or her particular jurisdiction. . . . Each United States Attorney
exercises wide discretion in the use of his/her resources to further
the priorities of the local jurisdictions and needs of their
communities."

The federal criminal justice system has thus evolved with shared
power: Developing national law enforcement policy is the task of the
Justice Department, and the responsibility for applying that policy
and following individual cases and investigations wherever the
evidence leads falls to the U.S. attorney for each federal district.
The distinction between policy and case management is frequently
blurry and has often led to sparks between the department and the U.S.
attorneys, no matter which party is in power.

Generally speaking, Washington wants to supervise more than U.S.
attorneys care to allow. For example, the Justice Department has long
required that prosecutions under RICO, the federal racketeering
statute, not be initiated without departmental approval from
Washington. This is to ensure that the development of RICO law is
uniform nationwide. But the authority is somewhat anomalous, because
the underlying charges that form the basis of a RICO case can be
brought by a prosecutor without Washington's say-so. During my time as
an assistant U.S. attorney, we tended to resent Washington's role in
RICO cases and often submitted them for approval only at the last minute.

Furthermore, both Justice and the U.S. attorney's offices adhere to an
uneasy understanding about the kinds of objections Washington can
raise. Justice is within its rights, for example, in saying, "We don't
think the incidents alleged in the indictment amount to a pattern of
racketeering under the law," but not, "We think the defendant's church
activities should militate against prosecution."

This is not to say that Washington does not succeed in changing the
way things are done in the U.S. attorney's offices. Under the first
President Bush, a broad initiative was begun to crush gangs and drug
lords through the Organized Crime Drug Enforcement Task Force
(OCDETF), which was supposed to operate in every U.S. attorney's
office. The war on guns and drugs had always been seen as the
responsibility of local prosecutors, and the news that the federal
courts were now going to be the site of street-crime prosecutions was
not greeted warmly by all federal prosecutors and federal judges.

In Chicago, the idea of dedicating a significant portion of the U.S.
attorney's resources to this pursuit threatened more traditional
missions such as public corruption cases, and I recall months of
delicate negotiations between U.S. Attorney Dan K. Webb and the
department to preserve national and local prerogatives. In the end,
Webb worked out an agreement whereby a percentage of many assistants'
work time, as opposed to a fixed number of assistants, would be
dedicated to OCDETF matters.

In this back and forth between Washington and the field offices,
public corruption cases -- generally meaning bribery of local or
federal officials -- have always been a special preserve. That is
because most state and county prosecutors are elected, while U.S.
attorneys are appointed by the president (and approved by the Senate).
As such, U.S. attorneys are seen as less vulnerable to local political
influences to pursue or not pursue corruption inquiries. That is why
the charge that the Bush Justice Department dismissed one or more of
the recently fired U.S. attorneys because of the way they handled
corruption cases touched a nerve.

For decades, under Republicans and Democrats, the Justice Department
has fully supported corruption investigations without regard to their
political consequences, as it did recently in the case of lobbyist
Jack Abramoff. The direst fear raised by the prosecutor firings is
that the Bush administration, recognizing the political damage done by
the Abramoff case and the other prosecutions it spawned, decided to
shoot across the bows of the U.S. attorneys to prevent similarly
harmful prosecutions from taking place before the 2008 elections.

Whether or not that is true, the firings surely represent a newly
intrusive attitude in which the administration seems convinced of its
right to demand true-believer adherence to policy, as opposed to
granting U.S. attorneys their traditional discretion to handle
individual cases with an eye to all the attendant facts and
circumstances.

We will find out this week how much the attorney general will be able
to allay the fears raised by the firings. Whether or not he succeeds
in saving his job, he will do the federal law enforcement system and
the nation a favor if he endorses the traditional division of
responsibility, reserving policy for Washington and case-by-case
prosecutorial decision-making for the prosecutors.