White House, Prosecutors Have Clashed in Past
RENEE MONTAGNE, host:
There's been a lot of heated political rhetoric over the Bush administration's firing of eight U.S. attorneys, and some confusion about how hiring and firing traditionally works.
We ask NPR legal affairs correspondent Nina Totenberg to help sort out that history. She reports that the position of U.S. attorney is political, at least at the moment of appointment. But once confirmed, federal prosecutors are supposed to be apolitical and they're rarely removed by the president who appointed them.
NINA TOTENBERG: When lawyer Griffin Bell walked into the U.S. Attorney's Office in Atlanta, Georgia, after President Eisenhower succeeded President Truman in 1953, Bell was taken aback.
Mr. GRIFFIN BELL (Former United States Attorney General): The lights were turned out. There were no lights on in the office. You just turn and all the assistants are gone. And that was just a custom there. They left. Everybody knew to leave.
TOTENBERG: A half century ago, it wasn't just the U.S. attorney who was a political appointee, so were all his subordinates. In the years since, as the reach of the federal law has grown, the assistant U.S. attorney jobs have become career positions with occupants remaining without regard to party affiliation. But traditionally, when a new president is sworn in, the old U.S. attorneys go. Some are sometimes held over, especially when they're in the midst of sensitive investigations, and some have fought to stay on, often causing political problems for the new president.
In 1969, then U.S. Attorney Robert Morgenthau resisted President Nixon's efforts to replace him in New York, claiming he had an obligation to see pending investigations through to the finish. There was widespread support for keeping Morgenthau, even among the state's Republican officials, but President Nixon stuck to his guns. And Morgenthau, after contemplating challenging the president in court, gave up the ghost. He subsequently was elected district attorney in Manhattan, a position he's held ever since.
President Carter got into considerable political trouble when he fired a Republican U.S. attorney in Philadelphia, David Marston. Democratic Congressman Joshua Eilberg complained to the president that Marston should be replaced by a Democrat, but Eilberg failed to mention that Marston was investigating him. After the story became public, the president made matters worse by - and this is putting it charitably - giving inconsistent responses to reporters' questions. By then, that Atlanta lawyer, Griffin Bell, had become President Carter's attorney general. He blamed himself for the Marston fiasco because he hadn't told the president about the investigation.
Mr. BELL: I should've told him in advance. Be careful about talking to these people, because the president had no way of knowing who's on the investigation and he can't just tell members of Congress he's not going to talk with him.
TOTENBERG: As Bell said back then, the in-party was the Democrats. The problem was that senators normally make recommendations for U.S. attorneys, and there were no Democratic senators from Pennsylvania. So the House members stepped in to make recommendations, and three of them were under investigation.
As a result of the brouhaha, Bell put into effect new rules. First, no U.S. attorney, Justice Department official, or White House staff member was permitted to talk to a member of Congress about any investigation.
Mr. BELL: They had to talk to me.
TOTENBERG: And Bell made it mandatory that all politically sensitive investigations be reported to him. Bell finds curious the criteria listed in the Bush administration's e-mails for evaluating U.S. attorneys for retention. Kyle Sampson, then chief of staff to Attorney General Alberto Gonzales, recommended to the White House counsel, Harriet Miers, that U.S. attorneys should be kept on if they produced, managed well and were loyal to the president and the attorney general. Griffin Bell, who's been an outspoken Bush supporter, questions that.
Mr. BELL: Loyal to who? That's a new thing, the loyal detail. Some people think you ought to protect people; that's illegal.
TOTENBERG: As even Bush Justice Department officials admitted in their e-mails, it's been rare for presidents to remove the U.S. attorneys that they themselves have appointed. Clinton administration officials say they removed only three or four - one after he was videotaped grabbing a reporter by the throat; another amid accusations that he bit a topless dancer while visiting an adult club; another for more prosaic reasons; he didn't get along with local judges and Justice Department officials. President Clinton replaced that U.S. attorney with Robert Mueller, later to be appointed FBI director by President Bush.
Nina Totenberg, NPR News, Washington.
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