US Attorneys

For some time now, a controversy has raged in Washington now about the firing of seven United States Attorneys. I have been puzzling over the issue of what it means to be a political appointee in this context. I think most reasonable people would agree that "serving at the pleasure of the president" is a legal term of art rather than a natural language phrase. What do I mean by that? Well, to serve at the pleasure of the president basically means that the President is not legally obliged to give you any specific justification if he/she wants to fire you. On the other hand, there has typically been an understanding that while virtually all political appointees serve at the pleasure of the president, not all of them serve literally at the pleasure of the president. So, for instance, if the President wants to replace his chief of staff or his press secretary, he can do so for really any arbitrary reason he wishes. These aren't what we would typically think of as "public servant" positions. Really, these people just happen to be on the public payroll, but they really are just serving the president in a personal capacity, and their loyalties ultimately lie exclusively with the president. They do not take an oath of office to uphold the Constitution. On the other hand, some political appointees serve important public functions, and the US Attorneys are perhaps one of the best examples. They are the top law enforcement officers in their various districts. It is their job to make sure that federal crimes are prosecuted in their district. As such, they have an obligation to the public at large to vindicate the public interest. This is an extremely important position, as you can imagine, and one of the reasons it is so important is that one of the features of our justice system is that private parties are unable to enforce the law in circumstances where they don't have a particularized, concrete injury (standing doctrine). Thus, most of us are looking to federal law enforcement officials to ensure that law-breakers are punished.

Now, in the ideal world, US Attorneys would bring all criminals to justice. Of course, we live in the real world, where prosecutorial discretion is a very important consideration. The most important reason for that is scarcity of resources. If the federal government didn't have some sense of prioritization in criminal prosecutions, things would fall apart. As one may imagine, each new president may have a different understanding of what deserves the most attention. Suppose for instance that a particular president believes in the "broken windows" theory, and wants all kinds of petty criminals prosecuted. Suppose another president believes that the federal government needs to focus less on victimless crimes, and focus more energy on white-collar crime. Suppose yet another president believes that prosecuting illegal immigration cases is paramount to improve US security and deter people from coming across. Notice that I am only talking about priorities here. Whether a President can actively stop prosecutions of a certain type of crime because he believes that it ought not in fact be a crime is a different question, not treated here. Now, if the President has a certain set of priorities, she is likely to want someone in charge who shares the President's view of those priorities, such that the President's agenda can be carried out most effectively. It would make sense in that situation for an incoming President to replace the law enforcement officers of a previous President if that President had a different set of priorities. Typically, Presidents have done this on some significant scale, and it doesn't seem to have raised any red flags.

Now, the tougher question is what happens if a President finds that his/her US attorneys are not following through on his priorities. Is he justified in replacing them? As a theoretical matter, the answer would appear to be yes. But there are practical complications. Even assuming that the President is genuinely concerned about the priorities being fulfilled, replacing a US Attorney in this context is likely to be seen by others as an attempt to influence specific prosecutions against specific individuals, either by stopping existing prosecutions/investigaions of the President's friends, of friends of his friends, or initiating new prosecutions/investigations of the President's enemies. What appears to have happened in the current crisis is that those fears are well-founded, and that the President's cronies were genuinely trying to influence specific investigations/prosecutions. Now, one might say, if federal prosecutors are the ones with the discretion and they also serve at the pleasure of the president, what's wrong with the President replacing them because of specific prosecutions? It appears that we have some shared intuitions about what is right/wrong for a president to do, and using the power of the presidency to micro-manage the criminal justice system in a way that rewards one friends and punishes one's enemies appears to fall into the unacceptable category- and good riddance for that intuition.

But I am not sure matters are that simple. Can we draw such a clean distinction between specific prosecutions and abstract priorities? In some of the current firings, the DOJ alleged that the problem was that the prosecutors weren't bringing enough voter fraud indictments. If you have set out a priority, in this case voter fraud, but the US Attorney doesn't press charges, and says that he just doesn't have the goods on the targets of the investigations, is that a good enough reason to let the US Attorney go and replace him/her with one who is more likely to be more aggressive? That seems problematic, and I think we want the President to rely on the qualified judgment of a career prosecutor. On the other hand, if the President asked a US Attorney to focus on drug crimes, and he wasn't bringing enough drug prosecutions, can the President fire him then without impunity? If so, is that because the element of partisan taint is absent from that class of cases, given that drug dealers are no more likely to be Democrats than Republicans? There are tough questions here about to what extent the President should be able to set his own agenda with respect to what kinds of criminal violations should receive the most attention, and then how much supervision he can exercise over a US attorney after the initial determination. Do we want US Attorneys to be like Supreme Court justices, in the sense that once you have made an initial determination, the appointee exercises her own independent judgment, and regardless of what the President may have expected from that US attorney at the outset, now he is stuck with whatever happens? What to do with the Souters?

I am not entirely sure of the answers to these questions, but I think they are quite important, and that we need to start thinking about them. It is an often neglected fact that prosecutorial discretion is one of the greatest powers of the prosecutor. There is an initial stage at which he/she can essentially cherrypick which criminals are worthy of punishment, and which are not. Who should decide, and at what stage, and at what level of abstraction, how those determinations are made? That is the question.