President Donald Trump recently compelled 46 U.S. attorneys to resign, and to do so within a matter of hours. When one, Preet Bharaha, refused, Trump summarily fired him. Was the president within his rights to remove these public servants? In a word, yes. But being within one’s rights and doing what is right are two very different things.
The U.S. attorney position is one of the most powerful in the country. There are 93 U.S. attorneys nationwide. Each is called the "chief law enforcement officer" in the federal district over which he or she presides. That designation, while found nowhere in the Constitution or in statute, has very real meaning: Any cop or federal agent who wants a case prosecuted in federal court must gain the permission and approval of a U.S. attorney.
That makes the U.S. attorney more than a mere gatekeeper. By issuing a grand jury subpoena, a U.S. attorney may destroy a hard-won reputation. In some instances, a U.S. attorney may use the power of the government to intentionally and methodically take another person's life.
This broad authority makes the selection of a U.S. attorney an important process that must be done with much care. Appointment to the position requires full Senate confirmation. Background checks are done not by government contractors but by special agents of the FBI, and they are most thorough: Given the threat of terrorism, and that terrorism cases arise throughout the country, each U.S. attorney must qualify to receive the highest of security clearances.
As difficult as it is to find and hire a qualified U.S. attorney, it can seem deceptively easy to fire one. That is because each serves at the pleasure of the president. Those instances when presidents have exercised the authority to fire U.S. attorneys fall on a broad spectrum, from the right and appropriate to the unjust and perhaps unlawful.
On those rare occasions when there has been just cause to fire U.S. attorneys, it has been easy to identify.
Take Kendall Coffey, for example. In 1996, Coffey was serving as the U.S. attorney in Miami when his office lost a high-profile drug prosecution. After this defeat, Coffey journeyed to the Lipstik Adult Entertainment Club, where he allegedly bit a stripper, news reports indicate. The attorney general at the time under President Clinton, Janet Reno, summoned Coffey to D.C., and Coffey announced his "resignation" the next day. Most would support such a decision and resignation.
At the other end of that spectrum, consider a former U.S. attorney for New Mexico, David Iglesias. In 2005, a Republican senator from that state, Pete Domenici, wanted Iglesias to initiate prosecutions against certain Democrats. When Iglesias declined because the cases lacked merit, Domenici voiced his unhappiness with the decision. What followed had long-lasting impact at the Department of Justice: Attorney General Alberto Gonzales fired Iglesias and a number of other U.S. attorneys, I among them, for what many found to be politically motivated reasons.
As a result of our firings, Gonzales eventually "resigned" as well.
Most troubling, though, Gonzales’s decision to fire U.S. attorneys midterm politicized the Department of Justice, and in so doing harmed the institution.
It was harmed because we as citizens must trust that when U.S. attorneys issue subpoenas or seek the death penalty, they do so without regard to partisan belief.
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U.S. Supreme Court Justice Robert Jackson served as one of FDR’s attorneys general, and was the lead prosecutor in the Nuremberg trials after World War II. He wrote what has become a legal maxim: The citizen’s safety lies in the prosecutor who seeks truth and not factional purposes.
Where, then, on the spectrum between just and unjust would fall a decision such as President Trump’s to call for the immediate dismissal of 46 U.S. attorneys? Each president has the right to put his own U.S. attorneys in place. But to dismiss these chief law enforcement officers and give them only hours to leave is wrong. Not so wrong as to approach the injustice visited upon David Iglesias, surely, but disconcerting enough that some are publicly wondering if Preet Bharara’s sudden firing had something to do with an investigation of President Trump’s HHS secretary, Tom Price.
So, how should a president fire a U.S. attorney? Let me suggest that a president exercise as much caution in firing a U.S. attorney as went into the selection and appointment of that same U.S. attorney. That is to say, it is a decision to be made carefully and cautiously. The reputation of, and our faith in, the Department of Justice depend on it.
Paul Charlton was an assistant U.S. attorney from 1991 to 2001, and the U.S. attorney for the District of Arizona from 2001 to 2007. He is now an attorney in private practice.
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